PIRDHANDAS PARSUMAL Vs. HAJRABAI MAHOMAD

JUDGEMENT

(1.) In 1947 one Shakur Haji Suleman a Cutchi Memon of Upleta died intestate leaving him surviving his widow the plaintiff and his only son Sitar Haji Shakur. There was a house belonging to him situate in Upleta in which he was residing with the plaintiff until his death and after his death the plaintiff continued to reside in two rooms in the same house. Soon after the death of Shakur Haji Suleman followed the partition of India and immediately after the partition Sitar Haji Sakur went away to Pakistan. Since by reason of being resident in Pakistan Sitar Haji Shakur was unable to supervise his property in Upleta a notice dated 20th November 1950 was issued to him under sec. 7 of the Administration of Evacuee Property Act 1950 calling upon him to show cause why he should not be declared an evacuee under sec 2(d)(ii) of the Act. In response to the notice a written statement dated 23rd November 1950 was submitted by the plaintiff and in the written statement she contended that Sitar Haji Shakur had gone to Pakistan merely for business purposes and he was therefore not liable to be declared an evacuee. An inquiry was thereafter held by the Assistant Custodian of Evacuee Property and as a result of the inquiry the Assistant Custodian of Evacuee Property by his order dated 13th January 1951 held that Sitar Haji Shakur was an evacuee under sec. 2(d)(ii) of the Act and his properties were evacuee properties. The plaintiff thereupon preferred an appeal to the Custodian of Evacuee Property. In the appeal it seems the plaintiff put forward a claim to share in the properties left by Shakur Haji Suleman but this claim was rejected by the Custodian of Evacuee Property. The Custodian of Evacuee Property by his order dated 24th April 1951 held that the plaintiffs claim to the property of Shakur Haji Suleman could not be admitted but as a widow of Shakur Haji Suleman she was entitled to a right of residence in the said property and this right was limited to the accommodation which she enjoyed immediately before Sitar Haji Shakur migrated to Pakistan. Now at the date when Sitar Haji Shakur migrated to Pakistan the plaintiff was residing in two rooms in the suit house and the right of the plaintiff to reside in the said two rooms as the widow of Shakur Haji Suleman was thus recognised and declared by the Custodian of Evacuee Property but since Sitar Haji Shakur was an evacuee and his properties were evacuee properties as held by the Assistant Custodian of Evacuee Property the order of the Assistant Custodian of Evacuee Property declaring Sitar Haji Shakur as an evacuee and his properties as evacuee properties was affirmed and the appeal was rejected by the Custodian of Evacuee Property. The plaintiff thereafter continued to reside in two rooms in the suit house in which she was residing immediately before Sitar Haji Shakur migrated to Pakistan sad there was no disturbance of her possession until 15th November 1953 when the Assistant Custodian of Evacuee Property issued an order fixing the rent of the said two rooms at Rs. 20 per month and requiring the plaintiff to pay Rs. 680 as and by way of arrears of rent in respect of the said two rooms from January 1951 upto October 1953. The plaintiff on receipt of this order immediately approached the Custodian of Evacuee Property and applied for setting aside the said order. The Custodian of Evacuee Property by his order dated 26th February 1954 set aside the impugned order observing:-......

(2.) The plaintiff was aggrieved by this decree in so far as it refused her right to be maintained out of the income of the suit house and she therefore preferred Appeal No. 3 of 1960 in the Court of the Assistant Judge Gondal. Defendants Nos. 5 and 6 appeared to oppose the appeal and they raised a preliminary objection in regard to the jurisdiction of the learned Assistant Judge to entertain the appeal. They contended that the value of the subject matter of the suit was above Rs. 10 0 and that an appeal against the decision of the trial Court therefore lay to the High Court and not to the District Court and the appeal preferred by the plaintiff was therefore not maintainable in the District Court. This was a contention affecting the jurisdiction of the learned Assistant Judge and it was therefore heard by the learned Assistant Judge as a preliminary contention. The learned Assistant Judge took the view that what was material to consider for the purpose of determining the forum of appeal was the value of the subject matter of the suit at the date of institution of the appeal and not the value at the date of institution of the suit. He observed that the claim for maintenance made in the suit was Rs. 100 per month and therefore under sec. 7(ii) of the Court-fees Act 1870 which was in force at the date of institution of the suit the value of the subject matter of the said claim for computation of court fees was Rs. 12 0 and the value of the subject matter of the suit for purpose of jurisdiction was also therefore above Rs. 10 0 at the date when the suit was instituted but subsequent to the institution of the suit and prior to the filing of the appeal the Court-fees Act 1870 was repealed and the Bombay Court-fees Act 1959 was enacted and under sec. 6(ii) of the new Act the mode of valuation of the subject matter of the claim for maintenance was reduced to Rs. 1 200 and therefore at the date of institution of the appeal the value of the subject matter of the suit was less than Rs. 10 0 and hence the appeal was rightly filed in the District Court. Defendant No. 5 did not accept the order of the learned Assistant Judge determining the question of jurisdiction against him and he therefore preferred Civil Revision Application No. 766 of 1960 in this Court. Defendants Nos. 5 and 6 in the meantime also preferred an appeal against the decree passed by the trial Court in so far as it declared that the plaintiff was entitled to a right of residence in the suit house in the hands of defendants Nos. 5 and 6 and this appeal was consistently with the stand taken by them before the learned Assistant Judge preferred by them in the High Court. That appeal is First Appeal No 632 of 1960. Defendant No. 5 also thereafter made an application to this Court that the appeal preferred by the plaintiff in the Court of the Assistant Judge Gondal should be withdrawn to this Court and by consent of parties that appeal was withdrawn to this Court and was numbered First Appeal No. 450 of 1963 Since the questions arising in these two First Appeals and Revision Application are common it would be desirable to dispose them of by a single judgment.

(3.) It would be convenient to first dispose of the Revision Application as that raises a question of jurisdiction namely which Court has jurisdiction to entertain an appeal against the judgment of the trial Court:- the High Court or the District Court ? This question also arises in the appeal of defendants Nos. 5 and 6 for if it is the District Court which has jurisdiction to entertain the appeal and not the High Court the appeal of defendants Nos. 5 and 6 instituted in the High Court would be in a Court without jurisdiction and would have to be returned for presentation to the proper Court namely the District Court. The question obviously depends upon whether sec. 26 of the Bombay Civil Courts Act 1869 applies on the facts of the case or sec. 8 of that Act applies. Sec. 8 provides:-