RADHIKA NATH BISWAS Vs. MIDNAPORE ZEMINDARI CO LTD

JUDGEMENT

(1.) This is an application for leave to appeal to His Majesty in Council and it arises out of a suit brought by the present petitioner against the respondent to England for declaration of his title to certain lands and recovery of possession thereof and also for mesne profits. The suit was decreed with coats and mesne profits by the Additional Subordinate Judge of Nadia. Against that decision the respondent to England preferred a first appeal to this Court. By their judgment dated 3 July 1936 Mukerji and Jack, JJ., allowed the appeal and dismissed the petitioner's suit. Against that judgment the petitioner has asked for leave to appeal to His Majesty in Council. The only point that arises to show the competency of the appeal is whether it satisfies the condition as to valuation as laid down in para. 1 of Section 110, Civil P.C. Now in the plaint para. 7, the plaintiff states that he for the present claims Rs: 400 as approximately due on account of mesne profits. Para. 8 runs as follows: The present market value of the disputed properties is Rs. 2,100 by guess. Hence, for the purpose of jurisdiction of Court and of court-fees the present suit is instituted at a claim of Rs. 2,500 inclusive of mesne profits.

(2.) Issue 7 was raised: "Were the defendants in wrongful possession of the lands in suit as alleged by the plaintiff?" and issue 8 "is the plaintiff entitled to get any mesne profits from the defendants?" On these two issues the learned Subordinate Judge held that the plaintiff was entitled to mesne profits for a period of four years for a total sum of Rs. 4,248; in accordance with this finding the suit was decreed for a sum of Rs. 6,348. The defendants appeal was also valued at Rs. 6,348. It is now contended by the plaintiff-petitioner that he was in error in stating the market value of the disputed properties to be Rs. 2,100 and that on the very findings of the Courts below he is entitled to fix the market value at a much higher figure. This argument is amplified in ground No. 18 of the petition. Shortly stated it comes to this: The learned Subordinate Judge has found that the defendant company has been enjoying the rents and profits at the rate of Rs. 1 per bigha and that the yearly rents and profits thus enjoyed would amount to Rs. 1,062. On this basis even at 12 years purchase the value of the property would be more than Rs. 10,000. The value of the mesne profits alone for the period of one year 11 months from the date of the purchase up to the date of the suit would come to Rs. 2,0368.0 which 1 would fall short of Rs. 10,000 by the sum of Rs. 7,963-8-0 only. So that even less than 12 years purchase would suffice to make up the statutory limit of Rs. 10,000. It is stated that through mistake the valuation of the land was stated in the plaint as Rs. 2100. The suit was tried by the Subordinate Judge and a first appeal was also heard by this Court, and so, it is pointed out, there would be no change of forum if the "real value were mentioned in the plaintiff and consequently the defendant has not been prejudiced". The contention is that a mere mistake in stating the value in the plaint where the other side has not been prejudiced by having to resort to a different forum, does not amount to estoppel in law so as to prevent the plaintiff from showing that the, real value of the subject matter in suit in the Court of first instance was Rs. 10,000 or upwards. In support of this we have been referred to a number of cases which require examination.

(3.) The case in Satish Chandra Joardar V/s. Birendra Nath Roy was one which there had been a second appeal, and the applicant for leave was the plaintiff. It was held by Rankin, C.J., Mukerji, J. agreeing, that the mere fact that a lower valuation was put on the plaint for the purposes of court-fee and jurisdiction should not be allowed to operate as estoppel against the plaintiffs for the purposes of a Privy Council appeal and the High Court was entitled to investigate the real value of the subject matter. The head note of the report proceeds: For an appellant to proceed to a higher Court immediately is to take an advantage, but there is no authority for the proposition that to proceed to a lower Court and take a chance of what the lower Court would do is so.