V.P. Gupta, J.
1. This second appeal has been filed against the judgment and decree of the District Judge, Mandi, dated 8th November, 1968, by which he has accepted the appeal of Ram Saran and others, defendants, and has set aside the judgment and decree of Additional Sub-Judge, Mandi, dated 27th June, 1967.
2. The brief facts of the case are that Tejinder Singh and others, appellants, had filed a suit for possession against Ram Saran and others, respondents, on the ground that Ram Saran and others, (defendants), are in illegal possession of the disputed land and that they (the appellants) are the rightful owners of the suit land. This suit was contested by Ram Saran and others and they alleged that Smt. Waziro was the owner of the property and after her death her estate was inherited by Khazan Singh grandfather of the plaintiffs-appellants to the extent of one-third share; defendants 1 to 3, i. e., sons of Puran one-third share, and defendants 4 to 6 one-third share. It may be mentioned that the present contesting respondents are defendants 1 and 3 and legal representatives of defendant 2. The appellants are the successors-in-interest of Khazan Singh because Khazan Singh is alleged to have gifted his share of the land to them. The appellants allege that the land measuring 10-13-18 bighas which belonged to Smt. Waziro and of which Khazan Singh was owner to the extent of one-third share by inheritance was got partitioned and mutation No. 219 pertaining to the partition had been sanctioned in favour of Khazan Singh, and the appellants got this disputed land measuring 3-10-19 bighas by transfer from Khazan Singh vide mutation No. 226. It is further alleged that the appellants were minors and were living with their father who was in Government Service and that taking benefit of their absence the contesting defendants 1 to 3 took forcible possession of the disputed land, without any right and that they had wrongly been recorded as non-occupancy tenants in the revenue records which entries are absolutely wrong and against facts. On .these allegations the appellants filed a suit for possession on 4-7-1964. The suit was contested by defendants 1 to 3, who in their written statement alleged that they are not in forcible possession of the suit land and that they are in possession of the land as tenants. It was further alleged that they had been in possession as tenants for the last about 30 years. After replication the following issues were framed in this case:
'1. Whether the plaint has not beenproperly valued for the purposes ofcourt-fee?
(O. P. d.)
2. Whether the suit property has not been properly described, if so, its effect?
(O. P. D.)
3. Whether the defendants Nos. 1 to 3took forcible possession of the suit landwithout any right during partition proceedings as set out in para 3 of theplaint?
(O. P. P.)
4. Whether the entries in the Revenue Records showing the defendants Nos. 1 to 3 as non-occupancy tenants are wrong?
(O. P. P.)
5. Whether the defendants are the tenants of the suit land and as such this Court has no jurisdiction to try the suit?
(O. P. D.)
3. The Additional sub-judge, Mandi, vide his judgment, dated 27th June, 1967, decreed the suit after holding that the contesting defendants 1 to 3 were not tenants of the suit land and as a consequence it was held that their possession on the suit land is forcible.
4. Feeling aggrieved from this judgment and decree of the Additional Sub-Judge, defendants 1 to 3 filed an appeal and the learned District Judge vide his judgment, dated 8th November, 1968, held that defendants 1 to 3 were proved to be the tenants of the suit land and as a consequence the appeal was accepted, the judgment and decree of the trial Court was set aside and the plaint was ordered to be returned to the plaintiffs under Order 7, Rule 10 of the Civil P. C.
5. Feeling aggrieved from this judgment and decree of the District Judge, the plaintiffs have filed this regular second appeal.
6. The first preliminary objection raised by the learned counsel for the respondents is that this second appeal is not competent because the value of the suit property as given in the Amended plaint is Rs. 45-90 and that under the provisions of para 32 of the Himachal Pradesh (Courts) Order, 1948 (hereinafter referred to as the 'Courts Order') no regular second appeal is maintainable.
7. The learned counsel appearing for the appellants has contended that. the second appeal is competent because the value of the property is more than Rs. 1000/- and that to this effect affdavits have been filed by Ludar Singh father of the appellants and that these affidavits are, dated 27-2-69 and 29-12-1972. It was further contended by him that in the affidavits filed by Ludar Singh it has clearly been mentioned that the value of the land in dispute is more than Rupees 1000/- and that the decree under appeal involves directly a claim to this land. To substantiate his contentions he has drawn my attention to Kishori Lal v. Jshwar Das (ILR (1973) Him Pra 416) and to the wording of para 32 of the (Courts) Order. It was further contended by him that the valuation as given in the plaint is not the real or the market value of the property and that for showing the real or the market value of the property in dispute the affidavits filed by Ludar Singh should be considered and as such this appeal is competent.
8. The learned counsel for the contesting respondents on the other hand contented that the real dispute between the parties to this appeal is regarding the tenancy rights of the contesting respondents (defendants 1 to 3) and that the value of such rights is the determining factor regarding the maintainability of the appeal and to support his contention he has referred to Sunder v. Kirpu (AIR 1980 Him Pra). It has further been contended by him that the affidavits of Ludar Singh nowhere state that the value of the tenancy rights exceeds Rs. 1000/- or Rs. 250/- and as such the affidavits filed by Ludar Singh are irrelevant.
9. After hearing the learned counsel for the parties and upon perusal of the record it is clear that under para 32 of the (Courts) Order, a regular second appeal will be competent 'in a land suit (a) if the value of the suit is Rs. 250/- or upwards or the decree involves directly some claim to, or question respecting, property of like value, and the decree of the District Court varies or reverses other wise than as to costs the decree, of the Court below, or (b) if the value of the suit is Rs. 1000/- or upwards, or the decree erf the District Court involves directly some claim, to, or question respecting, property of like value'.
10. This para 32 of the (Courts) Order has been interpreted in Kishori Lal's case (ILR (1973) Him Pra 416) (supra) and it has been held that the courts for the maintainability of a second appeal can look into the matter regarding the actual or market value of the suit property and for that purpose the affidavits, etc., filed by the parties can be considered. It is no doubt true that in the instant case the valuation of the suit as put in the trial Court and as mentioned in the plaint is Rs. 45-90 and this valuation was calculated in accordance with the provisions of the Court-fees and Suits Valuation Act, i. e., valuation for purposes of jurisdiction was fixed at thirty times the land revenue. Now the appellants while filing this appeal claim that the value of the land in suit was more than Rs. 1000/-, and the appeal was admitted subject to the objections of its maintainability.
11. After perusal of the records of the case and the judgments of the Courts below I find that the property which is the subject-matter of the dispute is only the tenancy rights which are claimed by the contesting respondents (defendants 1 to 3). The respondents (defendants 1 to 3) do not dispute the ownership rights of the appellants. They merely claim thai they are in possession of the disputed property in their capacity as tenants and as such for determining as to whether a second appeal is competent or not, it is only the valuation of the tenancy rights in the disputed land which has to be considered. In taking this view, I am fortified by the Division Bench ruling in Sunder's case (AIR 1980 Him Pra D (supra). I have already stated that the appellants (plaintiffs) or their father Ludar Singh have not at all cared to produce any evidence (by means of affidavit or otherwise) to show that the tenancy rights over which the respondents (defendants 1 to 3) have laid their claim are worth more than Rs. 1000/- or Rs. 250/-The affidavits filed by Ludar Singh only refer to the value of the land in dispute, i, e., the ownership including the tenancy rights and they do not at all refer to the valuation of the tenancy rights. In these circumstances, it is clear that there is nothing on the record to show the value of the tenancy rights in dispute is more than Rs. 250/- or Rs. 1000/- and as such this appeal (in which the original value of the suit for purposes of jurisdiction has been fixed at Rs. 45-90 i.e., much below Rs. 250/-) is not maintainable under para 32 of the (Courts) Order.
12. In view of the above discussion, I hold that this appeal is not maintainable and the same is dismissed, with no orders as to costs.