MANEKLAL MANSUKHBHAI Vs. HORMUSJI JAMSHEDJI

JUDGEMENT

(1.) THIS is an application by the defendant for leave to appeal to His Majesty in Council against a decree of this Court in Second Appeal No. 717 of 1940. The decree in so far as it adversely affects the defendant directs him to hand over to the plaintiff vacant possession of two Survey Nos. 223 and 225 after removing the superstructures standing thereon. The substructures consist of a ginning factory and its appurtenances. The decree of this Court has reversed the decree of the lower appellate Court dismissing the suit, and the only question is whether the defendant is entitled to leave on the ground that the decree of this Court involves directly or indirectly some claim or question to or respecting property of the value of Rs. 10,000 or upwards under paragraph 2 of Section 110 of the Civil Procedure Code, 1908. It is conceded by the defendant that the case does not fall under the first paragraph of that section, but Tie contends that although the suit was valued by the plaintiff at Rs. 330 on the assessment of these two and the other two suit fields, the loss to him on account of the decree of this Court is more than Rs. 10,000 or upwards. In order to appreciate this point it is necessary to see what the. real dispute was between the parties.

(2.) THE plaintiff is the successor-in-title of the original owners of these fields. THE defendant is the successor-in-title of a firm called Manilal Maganlal and Brothers which had claimed to take the fields on a permanent tenancy from their owners and on the strength of that permanent lease had erected a ginning factory on them in 1916. THE plaintiff's case in the trial Court was that the tenancy between the owners and the defendant's predecessor-in-title was a tenancy at will and was not a permanent tenancy. THEre was no document to evidence the alleged permanent tenancy. THE trial Court held in the plaintiff's favour that there was no permanent tenancy and ordered the defendant to give vacant possession of the suit lands on removal of the buildings standing thereon. THE lower appellate Court was of the opinion that although there was no regular lease of the two lands executed between the parties, still there was correspondence between the Talukdari Settlement Officer who was managing the original owner's estate and the Government, the contents of which showed that a permanent tenancy must have been created between him and the defendant's predecessor. It therefore allowed the appeal and dismissed the plaintiffs suit In second appeal it was held by this Court that the Government Resolution on which the defendant relied for the creation of permanent tenancy was no evidence of the writing of a contract referred to in Section 53A of the Transfer of Property Act, 1882, and apart from that the defendant had no legal basis on which he can claim to hold the land either as a permanent lessee or for a particular period. A decree was, therefore, passed in the plaintiff's favour so far as these two survey numbers were concerned by which the defendant was to hand over vacant possession of them after removing the superstructures standing thereon. THE decree really amounts to an order to the defendant to remove the superstructures and thereafter to give vacant possession of the lands to the plaintiff.

(3.) MR. J. C. Shah on behalf of the opponent strongly relies upon a decision of the Lahore High Court in Dhanna Mal v. Lala Moti Sagar [1923] A. I. R. Lah. 286. No doubt the facts of that case have a great resemblance to those of the present case. The suit there was one for ejectment of the defendants from the site on which certain buildings stood, and it was ordered that the buildings should be 'demolished and the materials removed. It was contended that the value of the buildings was nearly Rs. 23,000, and that inasmuch as those buildings! had been found to be of value of over Rs. 10,000, the defendants were entitled to a certificate under paragraph 2 of Section 110. That contention was negatived on the ground that it cannot be said that the subiect-matter of the suit was other than that involved in the decision of the question whether the defendants were permanent tenants of the site or mere tenants at will, nor can it be contended that the decree of the Court involved directly or indirectly any claim or question to or respecting property of the value of Rs. 10,000 or upwards. With great respect I am unable to see why on the facts of that case it did not fall within the second paragraph of Section 110. Under that paragraph a certificate can be granted if the decree or final order indirectly involves a question respecting property of the amount or value of Rs. 10,000 or upwards. As I have said before, the value of the claim so far as the unsuccessful litigant is concerned is the value of the loss to the property which he would possess, and if that amount is more than Rs. 10,000, I fail to see why his case should not fall under that paragraph. I am therefore unable to agree with the view taken in Dhama Mai v. Lala Moti Sagar. Although there is no direct authority of this Court, on this point, there are some observations in Mahmadalli v. Abdul Rahim (1930) 32 Bom. L. R. 1189 which would support the defendant's case. In that case a tenant, who had lelased the lands for twenty-five years and had erected buildings thereon at a cost of nearly Rs. 25,000, obtained a decree that he was entitled to remain on the land as long as he lived after the expiration of the period of the lease. He applied for leave to appeal to the Privy Council contending that his firm was entitled to remain in possession while it lasted. It was found that the value of the land demised was Rs. 4,000. In the application for leave to appeal by the tenant his case was that the tenancy should last not simply during his life but so long as the firm lasted. It was held that the condition laid down in Section 110 was not satisfied inasmuch as the decree did not involve indirectly any claim or question respecting the building but involved a claim to land itself which was valued at Rs. 4,000. MR. Justice Patkar in his judgment referred to the case of Dhanna Mal v. Lala Moti Sagar and he applied the principle of that case to the facts before him holding that the value of the claim was only Rs. 4,000 and not more. At the same time he was of the opinion that the decision might have been otherwise if "the suit had been by the landlord against the tenant for ejectment and for removal of the superstructure. He observes (p. 1193): No decree was passed for evicting the tenant from possession of the land. If the tenant had been evicted from the land, it might have been possible to hold that the decree not only involved directly some claim or question relating to land which was worth Rs. 4,000 but also indirectly involved some claim or question to or respecting the buildings erected thereon of the value of more than Rs. 10,000 in the present case. Until the landlord brings a suit to evict the present plaintiff from the possession of the land leased to him, there is no necessity for him either to remove the structure or to give vacant possession of the land to the landlord.