GOPAL CHANDRA BANERJEE Vs. SM. SAILABALA DEVI

JUDGEMENT

(1.) THE plaintiff respondent brought a suit for ejectment of the defendants who had been described as being licensees. The property originally belonged to Lalit Mohan Banerjee. Defendants Nos. 1 and 2 were his sons. The plaintiff Sailabala claimed to be the married wife of Lalit Mohan. The Courts below have however found on evidence that she was not the married wife of Lalit Mohan. Lalit Mohan had by a deed of gift dated the 13th of May 1943, transferred the title to the property now in suit to the present appellant. The plaintiff's case as made in the plaint was that after the execution of the deed of gift she had served a notice on the defendants in November 1944, terminating the licence under which the latter were residing in the premises. This allegation of service of notice has, however, not been proved and the Courts below have proceeded on the basis that such notice had not been served. Various defences were raised but in view of the limited point raised in this appeal, it is unnecessary to refer to all of them. One of the material issues raised in the suit was whether the defendants were licensees under the plaintiff in respect to the property in suit. Both the Courts -below have found that the defendants were licensees, but that such license had been terminated at least by the filing of the suit, if not already terminated before that.

(2.) THE defence raised another objection about the valuation as put by the plaintiff and the defendants claimed that the Court of the Munsif had no jurisdiction to try the suit if the claim be properly valued. This objection was disallowed by the Courts below.

(3.) ON behalf of the plaintiff respondent it is contended that the provision contained in Section 11 of the Suits Valuation Act debars the defendant from raising the objection on the ground of under valuation as no case had been made to the effect that there was any prejudice against the defendants by the suit having been heard by the Court of the Munsif. The relevant portion of Section 11 of the Suits Valuation Act is in the following terms: 'Notwithstanding anything in Section 578 of the Civil P. C, an objection, that, by reason of the over -valuation or under -valuation of a suit or appeal, a Court of first instance, which had no jurisdiction with respect to the suit exercised jurisdiction with respect thereto, shall not be entertained by an appellate Court unless; (a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded .....or (b) the Appellate Court is satisfied, for reasons to be recorded by it in writing that the suit was over -valued or under -valued and that the over -valuation or undervaluation thereof has prejudicially affected the disposal of the suit on its merits.' The first clause of Section 1.1 noted above is satisfied in the present case. The objection was taken in the trial Court. The question, however, still remains whether there had been any case made either in the pleadings or in the evidence as led that there had been any prejudice because of the suit having been tried in the Court of the Munsif. It was held in 'Dinesh Chandra v. Sarnamoyi Debi', 1 C W N 136 and 'Aklemannessa Bibi v. Mahomed Hatem', 31 Cal 849 that unless there is proof of the disposal of the suit or appeal having been prejudicially affected on the merits by the under -valuation the defect of jurisdiction, if any, is cured by Section 11 of the Suits Valuation Act. The same view has been expressed in the cases of 'Kelu Achan v. Parvathi Nethiar', 46 Mad 631 and 'Ramdeo Singh v. Raj Narain Singh AIR (36) 1949 Pat 278.