RUCHCHA SAITHWAR Vs. HANSRANI

JUDGEMENT

(1.) This is an application under Order 45, Rule 2, Civil P.C. for leave to appeal to His Majesty in Council from a decree of this Court passed in second appeal on 23rd June 1927. The valuation of the subject-matter of the suit and of the appeal is less than Rs. 10,000, being in fact Rs. 2,800 only. The ground on which the leave to appeal is sought is that it involves a substantial question of law of general importance and is otherwise fit for appeal, as the plaintiffs have been deprived of a valuable right secured to them by the decree of the appellate Court.

(2.) It is conceded by the learned Counsel for the appellant that leave to appeal can be given only if the case should fall within Clause (c) Section 109, Civil P.C.

(3.) It appears that the applicants were the plaintiffs in the Court of first instance. They sued for recovery of certain properties on the allegation that they were joint with one Chikuri who left him surviving a wife and three daughters, all four of whom were the defendants in the suit. The plaintiffs case was that, on the death of Chikuri, they, as the surviving members of the family, were entitled to the property in suit. The defence was that Chikuri died separate, and the plaintiffs have no right to the property. The Court of first instance dismissed the suit holding that the plaintiffs were separate from Chikuri when the latter died. There was an appeal by the plaintiffs and the learned Additional District Judge, who heard the appeal, held on the evidence that the family was joint and that the plaintiffs were, therefore, entitled to succeed. He accordingly decreed the suit. There was a second appeal which was heard by a Bench of this Court. This Court came to the conclusion that the lower appellate Court had arrived at its conclusion by a misapplication of the law. The following is an extract from the judgment of this Court: The respondents urge that whether the lower appellate Court was right or wrong, the finding as to jointness was a finding of fact. The question whether it can be disturbed in second appeal depends, therefore, on whether the lower appellate Court, in arriving at that finding had committed any error of law.