LAWS(PVC)-1919-9-58

BALKRISHNA NARAYAN SAWANT Vs. JANKIBAI SITARAM SANZGIRI

Decided On September 16, 1919
BALKRISHNA NARAYAN SAWANT Appellant
V/S
JANKIBAI SITARAM SANZGIRI Respondents

JUDGEMENT

(1.) In this appeal, a preliminary point has been raised on behalf of the appellant that the appeal lies to the District Court, and not to this Court, and that the memorandum of appeal should be returned to him now to be presented to the District Court.

(2.) It will be convenient to state the facts bearing on this point. One Sitaram left his native place for Benares in 1902: he has not been heard of since and is presumed to be dead. There were disputes as to his property in the hands of third persons: the claimants were his widow, Jankibai, his brother Narayen, and his nephew, Balkrishna (Narayan s son). The widow claimed as an heir, the brother, by survivorship on the footing that he and Sitaram were joint, and the nephew, under the will of Sitaram. Jankibai filed a suit in 1913 on the Original Side of (I) (1918) L. R. 4617a. 15; 21 Bom. L. R. 1148.~ the High Court against the stake-holders, to which other claimants were added as parties later on. This suit was ultimately transferred to the Court of the First Class Subordinate Judge at Ratnagiri to be tried along with two other suits, which were filed in that Court by the brother and the nephew respectively. The brother filed Suit No. 319 of 1913 against the widow and the stake-holders for a declaration that he was jointly interested in the property of Sitaram and for an injunction restraining defendants 1 and 2 (the widow and her brother) from receiving, and defendants 3, 4 and 5 (the stake- holders) from handing over to them, the property of Sitaram. Other minor reliefs claimed by him are not material. He valued the claim for the declaration and the injunction at Rs. 135 (Rs. 130 for declaration and Rs. 5 for injunction) for the purpose of Court-fees. He stated that the value of the subject-matter for the purpose of jurisdiction was about Rs. 16,000. This suit was filed under the special jurisdiction of the First Class Subordinate Judge of Ratnagiri, and not under his ordinary jurisdiction. The other suit was filed by Balkrishna against the widow and other defendants. That also was a suit for a declaration and an injunction, the valuation for the purpose of Court-fees being Rs. 135, and the value of the subject-matter of the suit for the purpose of jurisdiction being over Rs. 5,000. This also was a suit filed under the special- and not the ordinary- jurisdiction of the First Class Subordinate Judge. These two suits and the widow s suit transferred to that Court were tried and decided together. Several appeals have been filed from the different decrees to this Court. Narayan, whose suit was dismissed, has filed the present appeal, which, it is now contended, lies to the District Court. In Balkrishna s suit the widow has appealed to this Court on the merits, and Balkrishna has appealed as to costs. We are not concerned with the appeals in the widow s suit as regards this preliminary point.

(3.) It is significant that Narayan alone raises the point of jurisdiction in his appeal. The point, if good, equally affects the two appeals arising out of Balkrishna s suit. The appellants in those two appeals do not raise this point. On the contrary the widow contends that the appeals are properly filed in this Court. I shall deal with the preliminary point in this appeal in which it has been raised; for if it fails here, it must fail as regards the appeals arising out of Balkrishna s suit.