MANEKLAL MANSUKHBHAI Vs. HORMUSJI JAMSHEDJI

JUDGEMENT

(1.) This is an application by the defendant for leave to appeal to His Majesty in Council against a decree of this Court in Second Appeal No. 717 of 1940. The decree in so far as it adversely affects the defendant directs him to hand over to the plaintiff vacant possession of two Survey Nos. 223 and 225 after removing the superstructures standing thereon. The substructures consist of a ginning factory and its appurtenances. The decree of this Court has reversed the decree of the lower appellate Court dismissing the suit, and the only question is whether the defendant is entitled to leave on the ground that the decree of this Court involves directly or indirectly some claim or question to or respecting property of the value of Rs. 10,000 or upwards under paragraph 2 of Section 110 of the Civil Procedure Code, 1908. It is conceded by the defendant that the case does not fall under the first paragraph of that section, but Tie contends that although the suit was valued by the plaintiff at Rs. 330 on the assessment of these two and the other two suit fields, the loss to him on account of the decree of this Court is more than Rs. 10,000 or upwards. In order to appreciate this point it is necessary to see what the. real dispute was between the parties.

(2.) The plaintiff is the successor-in-title of the original owners of these fields. The defendant is the successor-in-title of a firm called Manilal Maganlal and Brothers which had claimed to take the fields on a permanent tenancy from their owners and on the strength of that permanent lease had erected a ginning factory on them in 1916. The plaintiff's case in the trial Court was that the tenancy between the owners and the defendant's predecessor-in-title was a tenancy at will and was not a permanent tenancy. There was no document to evidence the alleged permanent tenancy. The trial Court held in the plaintiff's favour that there was no permanent tenancy and ordered the defendant to give vacant possession of the suit lands on removal of the buildings standing thereon. The lower appellate Court was of the opinion that although there was no regular lease of the two lands executed between the parties, still there was correspondence between the Talukdari Settlement Officer who was managing the original owner's estate and the Government, the contents of which showed that a permanent tenancy must have been created between him and the defendant's predecessor. It therefore allowed the appeal and dismissed the plaintiffs suit In second appeal it was held by this Court that the Government Resolution on which the defendant relied for the creation of permanent tenancy was no evidence of the writing of a contract referred to in Section 53A of the Transfer of Property Act, 1882, and apart from that the defendant had no legal basis on which he can claim to hold the land either as a permanent lessee or for a particular period. A decree was, therefore, passed in the plaintiff's favour so far as these two survey numbers were concerned by which the defendant was to hand over vacant possession of them after removing the superstructures standing thereon. The decree really amounts to an order to the defendant to remove the superstructures and thereafter to give vacant possession of the lands to the plaintiff.

(3.) Now the defendant's case in this application is that although the plaintiff's claim, which is based upon the assessment of the lands in suit, is certainly less than Rs. 10J0OO, the value of the leasehold rights to him and the loss of business consequent on the removal of the ginning factory would be more than Rs. 10,000, and that therefore the decree of this Court involves either directly or indirectly a claim or question respecting property worth at least Rs. 10,000. Mr. R. J. Thakore on behalf of the applicant has relied on the decision in Hari Mohan Misser v. Surendra Narain Singh (1903) I.L.R. 31 Cal. 301 That was a case where an injunction was sought by the plaintiffs restraining the defendants from altering the character of a plot of land by erecting thereon buildings for the manufacture of indigo and for filling up certain excavations, ditches, etc. made by the defendants. The plaint was valued at Rs. 1,500 but the defendants alleged that they had constructed a factory and other necessary buildings at a cost of more than Rs. 16,000, and that therefore the value of the relief claimed in the suit judged from the practical results thereof to the defendants was much more than Rs. 10,000. The Court accepted one of the defendants contention that Rs. 7,000 were expended on building the structures and that a portion at any rate of what was said to have been expended on implements for the manufacture of indigo might also be included. It was held on those facts that if the plaintiffs were entitled to a perpetual injunction practically restraining the defendants from carrying on the indigo business, it must be obvious that the defendants may sustain a loss far greater than the mere cost of the buildings. On that ground it was decided that the amount of loss which would be incurred by the defendants on account of the decree was more than Rs. 10,000, and a certificate was granted. No doubt the present is not a direct case of injunction. Nevertheless, in my opinion, the criterion laid down in that decision would apply to the present case as the decree against the defendant does direct him to remove the superstructures which according to him he is entitled to maintain on the lands for his factory. This principle accords with the observations of Sir Lawrence Jenkins in De Silva V/s. De Silva (1904) 6 Bom. L.R. 403 based on the decision in Allan V/s. Pratt (1888) 13 App. Cas. 780. The observations are that the decree is to be looked at as it affects the interests of the party who is prejudiced by it and who seeks to relieve himself from it by appeal. The particular passage in Allan V/s. Pratt, which elaborates this proposition following the decision in Macfarlane v. Leclaire (1873) 15 Moore P. C. 181 is as follows (p. 781) :- ...the judgment is to be looked at as it affects the interests at the party who is prejudiced by it, and who steeks to relieve himself from it by appeal. If there is to be a limit of value at all, that seems] evidently the right principle on which to measure it. The person against whom the judgment is passed has either lost what he demanded as plaintiff or has been adjudged to pay something or to do Something as defendant. It may be that the value to the defendant of an adverse judgment is greater than the value laid by the plaintiff in his claim. If so, which was the case in Macfatlane V/s. Leclaire, it would be very unjust that he should be bound, not by the value to himself but by the value originally assigned tot the subject-matter of the action by his opponent.