JANKI PRASAD CHOUDHARY Vs. RAMKRIPAL PANDEY

JUDGEMENT

(1.) This is an application for leave to appeal to the Federal Court. In the Court below, the plaintiffs had valued the property in suit including mesne profits at Rs. 6,101. The area involved was 111 bighas, 14 kathas and 3 dhurs of which 76 bighas odd was included in Schedule 1 as appertaining to village Salha and 35 bighas odd in Schedule 2 as appertaining to village Hasanpur. The plaintiffs' suit was dismissed. An appeal was filed to this Court but it was confined to the 76 bighas odd in village Salha. The decision of the trial Court concerning 35 bighas odd in village Hasanpur was not questioned. This Court reversed the decision of the trial Court and decreed the suit of the plaintiffs concerning 76 bighas odd in village Salha. Against the decision of this Court the defendants have filed the present application for leave to appeal to the Federal Court.

(2.) The valuation given by the plaintiffs, as has already been stated, was Rs. 5,104 including megne profits (Rs. 400) regarding the properties mentioned in Schedules 1 and 2. The defendants in their written statement questioned this valuation asserting that the true valuation of the properties involved was Rs. 25,000. An issue was framed by the trial Court on this point. At the hearing, however, the issue was not pressed. After the decision of this Court, the question of the real valuation of the properties involved in the suit was raised by the defendants, and this Court directed the Court below to hold an enquiry and send a report as to the true valuation of the properties in suit at the time of the institution of the suit as well as its value at the time of the application for leave to appeal to the Federal Court. The Subordinate Judge, after holding an enquiry, has reported that the market value of the properties mentioned in Schedules 1 and 3 of the plaint on the date of the suit, namely, 12th September 1940, was Rs. 4,704 and that the market value of these lauds on the date of the proposed appeal to the Federal Court, namely, 20th May 1949, was so far as Schedule 1 is concerned Rs. 35000 and so far as Schedule 2 is concerned Rs. 15,000. The Subordinate Judge also gave a finding in pursuance of the directions of this Court on the point as to whether the defendants, appellants to the Federal Court, were entitled to challenge the valuation determined by the learned Subordinate Judge at the original trial. According to his opinion, the defendants, appellants to the Federal Court, were not entitled to challenge the value of the suit land in the Court of the first instance as determined by the learned trial Court.

(3.) Mr. De on behalf of the defendants challenged in the first instance the report of the Subordinate Judge as to the valuation of the properties in suit. He further contended that the defendants were entitled to challenge the valuation as given by the plaintiffs at the trial and that the principle of approbating and reprobating did not arise. He further contended that even if the valuation as given by the plaintiffs and as found by the Subordinate Judge in his report be accepted, that is to say the true valuation of the lands in suit was below Rs. 10,000, substantial questions of law arise in the case and leave should be granted to appeal to the Federal Court.