RAJENDRA KUMAR GHOSE Vs. RASH BEHARI MANDAL

JUDGEMENT

(1.) This is a plaintiffs appeal from a decree of the High Court of Judicature at Port William, in Bengal, reversing a decree of the Subordinate Judge at Khulna and dismissing as against the respondents, the appellants suit.

(2.) The respondents appearing are nine out of an original concourse of 414 defendants, who at the commencement of the litigation on April 30, 1921, were, so far as was physically possible, in occupation of an area of lands approximately 6,000 bighas in extent, situate in the Collectorate of District Khulna, in Bengal. The appellants claim in the suit was to recover from the impleaded defendants khas possession of these lands. Their case in substance--it will suffice to state in the barest outline--was that the respective interest of the defendants in the lands were no more than incumbrances within the meaning of Section 11 of Bengal Regulation VIII of 1819, and that the appellants as auction purchasers of the putni in which the 6,000 bighas were comprised had right to avoid these incumbrances and recover for themselves khas possession of the entirety of the lands. Very many of the defendants submitted in the course of the proceedings to the appellants demand for possession of their holdings, and at the trial the claim was resisted by the respondents alone, the area of their occupancies representing a mere fraction of the acreage originally in suit. The respondents resistance had no immediate result. The learned Subordinate Judge, as has been seen, decreed the suit against them. On appeal their resistance was more successful. By the decree of the High Court of February 9, 1927, the suit as against them was dismissed. Hence the present appeal, made pursuant to a certificate of fitness granted by the High Court on August 15, 1927.

(3.) To the competence of the appeal so authorised, a preliminary objection was at once taken by the appearing respondents. This was, they said, "an appeal from a decree passed on appeal by a High Court"--case (a) of Section 109 of the Code of Civil Procedure, For such a decree to be appealable to His Majesty in Council the requirements of para. (1) of Section 110 of the Code must be observed, the respondents rightly observing that the second paragraph of the section is, in view of the decision of the Board in Gudivada Mangamma V/s. Maddi Mahalakshmamma, s.c. 32 Bom. L.R. 517, inapplicable to the present case. Sec. 110, paragraph 1, provides that:-- the amount or value of the subject matter of the suit in the Court of first instance must be ten thousand rupees or upwards, and the amount or value of the subject matter in dispute on appeal to His Majesty in Council must be the same sum or upwards,..