HARIHAR DUTTA TEWARI Vs. BHIM SANKER DUTTA TEWARI

JUDGEMENT

(1.) This is an application for leave to appeal to His Majesty in Council against two concurrent judgments of this Court, and both the value of the subject-matter in dispute and the question whether a substantial question of law is involved must be established.

(2.) As regards the first point, the land of which possession by partition was sought was valued at Rs. 5,000. It is now stated to be a sum of Rs. 60,000 for the first time for the purposes of this application. Were it necessary to go into this question, we should have to direct an enquiry upon the matter. In my opinion, it is not necessary to go into this matter as the applicant has not made out that a substantial question of law is involved. In my opinion, the only question of law which arises is under the provisions of Order II, Rule 2, having regard to the finding of fact of both Courts.

(3.) The case set up by the applicant for the non-inclusion in the former suit of the property now sought to be recovered was twofold, namely, ignorance and fraud. The Subordinate Judge found that this allegation of ignorance was not proved, and, therefore, we must take it that the existence of the property was known at the time of the previous suit, whatever may be the cause for the non-inclusion in that suit. He also found as a fact that the alleged fraud had not been made out, and the question of fraud seems to have been abandoned at the hearing before the High Court. Then it appears from our judgment and that of the Subordinate Judge that no question was raised as to there being an identity of causes of action in the two suits. It has been suggested that this admission is not binding in law. I am not inclined to hold that it is a mere point of law but it is a mixed question of law and fact.