MAHENDRANARAYAN RAY CHAUDHURI Vs. JANAKINATH RAY

JUDGEMENT

(1.) This is the defendant's application for a certificate that the case is a fit one to be taken on appeal to His Majesty in Council. The suit was brought in 1926 for possession of certain land and ejectment of the defendant therefrom, on the footing that the defendant purchased the tenancy right of certain persons who had only a nontransferable jama. The defendant's contention was that the tenancy in question was a permanent tenancy at fixed rate and therefore transferable. The trial Court decreed the plaintiff's suit and the defendant appealed to the Additional District Judge, who allowed the appeal and dismissed the suit. Upon a second appeal to this Court, that decree was reversed and the judgment of the trial Court restored. so that the plaintiff succeeded in ejectment.

(2.) Upon the affidavits before us, there is a dispute as to the value of the property, which is the subject matter of the suit, and in the ordinary course we would call for a report from the trial Court upon this question under Rule 5, Order 45 of the Code. For the plaintiffs, it is contended however that the defendant cannot be heard to allege that the subject-matter of the suit in the Court of first instance was of the value of Rs, 10,000 by reason that the case was One in which court-fee was payable upon the market value of the land and the plaintiff having valued the lands for purposes of court-fee at Rs. 2,658 the defendant adopted and accepted this valuation when he appealed to the District Judge, whereas, if in fact the subject matter of the Suit exceeded Rs. 5,000, the first appeal lay to this High Court.

(3.) The question is constantly giving rise to difficulty. In Satish Chandra V/s. Birendra, Nath A.I.R. 1927 Cal. 225, the plaintiffs had valued the land at Rs. 930 only. The High Court in second appeal having dismissed their suit, they applied for a certificate to enable them to take the case to the Privy Council alleging that the value exceeded Rs. 10,000. A Division Bench having referred the matter of valuation to the trial Court and that Court having reported that the value of the land was Rs. 3,286 and this Court being of opinion that it was at least Rs. 3,448 a certificate was granted; other claims in the suit were shown to make up the difference between Rs. 3,488 and Rs. 10,000. Objection was taken to the effect that the plaintiff was estopped from saying that the land was worth so much as Rs. 3,448 by reason that he had valued the land in his plaint at Rs. 930. The difference between these figures made no difference as regards the Court in which the suit should be tried. The appeal to the lower appellate Court had been brought by the plaintiff and the appeal to the High Court had been brought by the defendant. I find that upon reference to certain cases, I took the view that it had not been laid down in any case that a person proposing to appeal to the Privy Council was estopped from alleging that the value of the subject-matter of the suit exceeded Rs. 10,000 by reason that he had taken an appeal to a lower Court on the basis of the lower valuation.