P NARAYAN NAIR Vs. APMCHERIA KATHIRI KUTTY

JUDGEMENT

(1.) THE plaintiff, respondent, first filed his plaint in the District Munsif s Court. When it was returned, he filed it in the Subordinate Court and it was returned again. He appealed to the Lower Appellate Court against the order of return by the District Munsif; and the first question is whether by electing to file his plaint in the Subordinate Court, he forfeited his right of appeal. It has been held that he could do so in Beni Madhab Das v. Jotendra Mohan Tagore (1907) 5 C.L.J. 580. But that decision was doubted in Baikunta Naih Dey v. Nawab Salimulla Bahadur (1908) 7 C.L.J. 547, 556 and was dissented from by one of us and another learned judge of this Court in A.A.O. No. 403 of 1914. We do not find in Order XLI or XLIII of the Civil Procedure Code any recognition of the principle that any such election as may have taken place in the case before us affects the right of appeal, We therefore hold that an appeal lay to the Lower Appellate Court.

(2.) ON the merits the question is whether a suit to enforce a right of pre-emption should be valued for the purpose of jurisdiction with reference to the gross value of the property or otherwise, the Lower Appellate Court having held that it should be valued with reference to the net value after the amount of encumbrances on it has been deducted. Under Section 3 (1) Suits Valuation. Act (VII of 1887) Local Governments are empowered to make rules for determining the value of land for purposes of jurisdiction in the suits mentioned in the Court Fees Act, Section 7(vi); and suits such as that before us are so mentioned. Under Section 6, when such rules are made, Section 14 in Madras Civil Courts Act (III of 1873), is to be deemed repealed. Section 14, no doubt refers to the subject matter of suits for land etc. But it is not in our opinion possible to accept the argument that subject-matter includes only immediate rights to possession and not such rights relating to land as pre-emption, when the contrary is indicated clearly by the last mentioned provision of the Suits Valuation Act. We therefore hold that the proper valuation is in accordance with Section 14 of the Madras Civil Courts Act that fixed in the manner provided by the Court Fees Act Section 7(v). It is not disputed that so valued the suit will be within the District Munsif s jurisdiction. We therefore agree with the District Judge s decision and dismiss the petition with costs.