SURENDRA NATH ROY Vs. DWARKA NATH CHAKRABUTTY

JUDGEMENT

(1.) This is an application by the plaintiffs for leave to appeal to His Majesty in Council. An action was brought by the plaintiffs against the defendants claiming ejectment from certain property. The plaintiffs allege that the defendants are tenants-at-will only, while the defendants allege that they had a permanent tenancy which had been granted by the plaintiffs predecessor to the defendants predecessor, and the Munsif before whom the action was brought gave judgment for the plaintiffs and came to the conclusion that the tenancy was a terminable one on notice. Then there was an appeal to the District Judge, who accepted the findings of fact arrived at by the Munsif but came to the conclusion that the tenancy was a permanent one and gave judgment for the defendants. Thereupon the plaintiffs applied to a Division Bench of this Court for permission that the appeal should be admitted under Order XLI, Rule 11, of the Code of Civil Procedure. That application was rejected on the 14th December 1914. The applicant now asks this Court for leave to appeal to His Majesty in Council against the order of this Court dismissing his application under Order XLI, Rule 11.

(2.) The first question raised by the Vakil for the opposite party is under Section 110. He says that under that section the subject-matter of the suit must be of the value of its. 10,000 at the date of the institution of the suit, and also that it must be of that value at the date of the decree from which the appeal to His Majesty in Council is desired. Now I think that, without deciding whether this case does come within the first paragraph of Section 110 of the Code of Civil Procedure, as to which there may be some difficulty inasmuch as there was no evidence as to the value of the subject-matter while this case was in the Court of first instance, I think this matter does come within the second paragraph of Section 110 of the Code of Civil Procedure, seeing that the decree or final order involves directly or indirectly some claim or question to or respecting property of the value of Rs. 10,000-The decree or final order must be the decree or final order from which the appeal is made, that is, the decree of the High Court of December 1914 and when one remembers that the question which it is desired to argue is this, whether upon certain given facts or data the tenancy is to be regarded as one at will or one of a permanent nature, it seems to me that this is a matter in which a substantial question of law is involved.

(3.) The other question which I have to consider is whether the property is of the value of Us. 10,000 or upwards. We have the report which was made at the instanee of the High Court dated January 1916, which is to the effect that the property was worth Rs. 11,400. The learned Vakil says that this is all very well. The property may have been worth Rs. 11,000 in 1916 but it does not follow that it was worth that amount at the date of the institution of the suit. I do not think myself that that is the material date. I think the material date is the date of the decree of the High Court from which the appeal is to be made and that date is admittedly December 1914. It may be said that even if that was the value of the property in January 1916, it does not follow that the value was the same in December 1914 inasmuch as according to the report the property has gone up by leaps and bounds within the last few years. When we look at the report, especially at the materials upon which the Munsif made his report, we find from the evidence given by the valuer that the property was valued at Rs. 300 a cotta. He corroborated his opinion by referring to two conveyances of the land in the immediate neighbourhood which are dated the 4th and 9th April 1914, and there seems to have been no other transaction subsequent to the dates on which the valuer based his opinion and consequently I think that the value arrived at by Mr. Warwick at Rs. 300 per cotta may be taken to have been the value of the property in 1914. Therefore, the value of the property was above the requisite amount in December 1914, and for this reason the case comes within the second paragraph of Section 110 of the Code of Civil Procedure.