KRISHAN DEV Vs. RAM PIARI

JUDGEMENT

(1.) This is a petition, for the grant of a certificate of fitness for appeal, to the Hon'ble the Supreme Court, against an order, dated the 20th June, 1964, of this Court, whereby, Civil Revision Petition No. 10 of 1963, filed by the petitioner, was dismissed'. That revision petition had arisen out of a suit, brought by the respondent, for possession of a portion of a site, comprised in khasra No. 19, situated in bazar Badah, after demolition of the structures, put up by the petitioner. The allegation of the respondent, in the suit, was that she was the owner of the site and the petitioner had unlawfully encroached upon a portion of it, by putting up structures. The petitioner denied that the portion, encroached upon, belonged to the respondent. His plea was that the portion, formed part of the land, which he had purchased'. The learned Senior Subordinate Judge, who had tried the suit, held that the petitioner had unlawfully encroached upon, and put up structures, on a portion, measuring 132 Sq. Ft., of the site, belonging to the respondent. But he did not grant a decree for possession of the portion, encroached upon. Instead, he awarded compensation of Rs. 300/- to the respondent, for that portion. He also, issued a permanant injunction, restraining the petitioner, from interfering, in any way, with the site. Against the decision of the Senior Subordinate Judge, rejecting her claim for possession and awarding compensation only, the respondent filed an appeal in the Court of the learned District Judge. Her claim, in the appeal, was that she should be granted possession of the portion, encroached upon, after removal of the structures. The petitioner had not filed any appeal or cross-objections, against the decree, passed against him. But, it was contended, on his behalf, in the appeal, filed by the respondent, that the finding of the Senior Subordinate Judge that the portion, encroached upon, belonged to the respondent, was incorrect and that, that portion, in fact, formed part of the land, belonging to the petitioner. The learned District Judge did not permit the petitioner to raise that contention and to question the finding of the learned Senior Subordinate Judge about the ownership of the portion. His reason was that as the petitioner had not filed any appeal or cross-objections, against the decree, passed against him, the decree had become final, against him, and he could not challenge the finding about the ownership of the portion. The learned District Judge accepted the appeal of the respondent and granted her a decree for possession of portion, measuring 132 Sq. Ft., after removal of the structures. The petitioner filed Revision-Petition No. 10 of 1963, in this Court, against the decree of the learned District Judge. One of the grounds, taken up in revision, was that the petitioner was entitled to urge, under Order 41, Rule 22, C.P.C., in the appeal of the respondent, before the learned District Judge, that the portion, encroached upon, did not belong to the respondent and the finding of the Senior Subordinate Judge on the point of ownership was incorrect, without filing any appeal or cross-objections, and that the learned District Judge was in error in not permitting the petitioner to urge that contention. This ground was rejected, by this Court, with the following observations :

(2.) The revision petition of the petitioner was, ultimately, dismissed, by this Court, and the decree of the learned District Judge, passed in favour of the respondent, was affirmed.

(3.) The petitioner has filed the present petition for a certificate for appeal to the Hon'ble the Supreme Court. The certificate is sought, under Clauses (b) and (c) of Article 133(1) of the Constitution of India. The petitioner will be entitled to obtain a certificate, under Clause (b), aforesaid, if he can show that the order of this Court involves, directly or indirectly, some claim or question, respecting property, additional to, or other than, the actual subject-matter, in dispute, and that the value of such claim or question is Rs. 20,000/-, or more, vide Ramu v. Rana Vidya Bhushan Singh, AIR 1961 Him Pra 27. The contention, on behalf of the petitioner, was that the decree of the District Judge, as affirmed by this Court, has adversely affected the whole of his building, and that as the building was worth more than Rs. 20,000/-, the case fell within the four corners of Clause (b). This contention does not appear to be sound. As already stated, it is the value of the claim or question, involved, in the decree or order, and was only the value of the property, which is the determining factor, under Clause (b). The question is what detriment, of which he wants to get rid, on appeal, will be caused to the petitioner, by the order of this Court. The petitioner will have to remove the unauthorized structures and to restore possession of the portion, encroached upon, to the respondent, as a result of the order of this Court. It is not suggested that the whole of the building of the petitioner will fall down on the removal of the unauthorized structures. The affidavit of the petitioner d9es not show that the immediate damage, which he may sustain, on account of the removal of the structures, will be to the tune of Rs. 20,000/- or more. The mere fact that the building of the petitioner is worth Rs. 20,000/- cannot lead to the inference that he will suffer detriment to the extent of that amount, by the order of this Court. As the petitioner has failed to prove that the value of the question, involved, is, Rs. 20,000/- or more he is not entitled to get a certificate under Clause (b).