Jagarnath Singh and Others vs Buttokristo Ray

Manohar Lall, J.—This is an application by the defendants for leave to appeal to His Majesty in Council from a decision of a Division Bench of this Court. It is alleged that the judgment of this Court is not a judgment of affirmance and that the value of the subject-matter in dispute at the time of the suit and at the time of the appeal to the Privy Council was over Rs. 10,000. The opposite party contests both these allegations.

The property in dispute is village Chainpur which belonged at one time to Palganj Estate of which defendant 1 is the proprietor, but his estate is managed through the manager of the encumbered estates, defendant 2, since, July 1940. On 17th February 1930, this village was sold in execution of a decree obtained against the then Raja of Palganj Estate and purchased by Rameshwar Lal, who executed a sale deed on 27th November 1931 for Rs. 7,250 in favour of the plaintiff. At the same time, the plaintiff executed an agreement in favour of the Raja by which he agreed to convey the village to the Raja within three years on certain terms. The plaintiff remained in possession till 10th December 1940 when in accordance with an order of the Deputy Commissioner of Hazaribagh dated 1st November 1941 possession was delivered to the manager of the encumbered estate. The plaintiff thereupon brought a suit for recovery of possession on declaration of his title.

The defence to the action in the main was that Rameshwar Lal, the vendor of the plaintiff, was the benamidar for the Raja both at the time of his purchase in February 1980 and at the time he executed the sale deed in favour of the plaintiff in 1931, that the sale deed together with an agreement by the plaintiff to re-convey the property amounted to a mortgage by conditional sale and, therefore the manager had lawfully taken possession of the village on removal of the plaintiff,

The trial Court held that Rameshwar Lal did not get possession of the village, that it was not established that he was a benamidar of the Raja and further that the transactions of November 1931 were not intended to operate as a mortgage and could not be so held in law. Accordingly the suit of the plaintiff was decreed with mesne profits from 5th March 1942 the suit was dismissed against defendant 8, the Province of Bihar.

Against this decision, First Appeal No. 176 of 1943 was preferred by defendants 1 and 2. This Court held upon a consideration of the provisions of the Transfer of Property Act that in law the transaction of 1931 could not be treated as a mortgage. The Court, however, proceeded to consider the question of fact whether Rameshwar Lal was or was not a benamidar of the Raja and came to the conclusion that Rameshwer Lal was the benamidar of the Raja. Having come to this conclusion, the Court examined the position-whether the transaction of 1931 could be treated as a mortgage or conditional sale. One of the tests applied was to find out the true value of village Chainpur on the date of the transaction. The Court considered this question at p. 12 of the judgment and disagreed with the view of the learned Subordinate Judge that the property was worth only Rs. 5,400 and pointed out that the property was certainly more than Rs. 7,250 which was the price paid by the plaintiff on the sale, deed from Rameshwar Lal. The Court then considered a number of surrounding circumstances and several terms of the document of sale and came to the conclusion that the parties contemplated a mortgage and not an out and out sale. After these findings the Court held that:

but for the provisions of the proviso to Section 58(e), T.P. Act, the transaction was a mortgage and not merely a conditional sale.

The result was that the appeal was dismissed as the Court was satisfied that at the time the manager took possession the plaintiff was no longer conditional vendee but was an absolute vendee as the right to enforce the claim for a reconveyance had lapsed. There was a cross-objection on behalf of the plaintiff regarding the claim for mesne profits which had been decreed by the trial Court from 5th March 1942. The Court had no difficulty in holding that the Subordinate Judge was in error in decreeing the claim for mesne profits from 5th March 1942 and modified the decree of the trial Court by substituting the date 10th November 1940 for the date 5th March 1942 as the date upon which the plaintiff is entitled to recover mesne profits. Against this decision pronounced on 8th August 1946 the appellants seek leave to appeal to the Privy Council.

When the matter came up on another date we ordered that the Subordinate Judge should submit a report as to what was the true value of the property both at the time of the suit in the trial Court and at the time of the appeal to the Privy Council. This enquiry was necessary because the petitioner in an affidavit in support of the application had asserted that the real value of the property was wrongly valued in plaint at Rs. 5,100 although the real value was considerably over Rs. 10,000. As already, indicated the High Court also in its judgment observed that the value of the property was certainly more than Rs. 7,250.

The learned Subordinate Judge on a consideration of the entire evidence has now come to a clear conclusion that as far back as September, 1929 the Raja had granted this village in mokarrari to one Haro Naik for Rs. 28,000 and this was at a time when the parties could not foresee that a dispute regarding the value of village Chainpur would crop up. Having considered the other materials on the record the Subordinate Judge reports that the price of village Chainpur was Rs. 27,340 on the relevant dates.

Mr. E.S. Chatterji appearing on behalf of the respondent objects that when the plaintiff himself fixed the value of village Chainpur at Rs. 5,100 in his plaint and the defendant adopted the same valuation when preferring the appeal to this Court, the defendant should not be allowed to approbate and reprobate and now to claim that the real value of the village was over Rs. 10,000. On the other hand, it was argued on behalf of the appellant that the value given in the plaint and adopted for the purpose of the appeal to this Court was merely a notional value for the purpose of stamp duty and there was no representation, far less a decision, as to the true value of the village.

A large number of cases were referred to on behalf of both sides on this somewhat difficult question. Majority of these cases will be found reviewed in a recent decision of the Calcutta High Court in Radhika Nath Biswas Vs. Midnapore Zemindari Co. Ltd., . The conclusion is reached at page 293:

The trend of authorities is to the effect that whether by way of estoppel or of res judicata the Courts have considered whether the question of valuation has been raised and decided at an early stage and also whether the opposite party has been led to act upon such valuation, as for instance, by way of second appeal; or to put it in another way whether the party seeking to vary the valuation for the purpose of appeal to England is in the position of approbating and reprobating. Where this is the case, variation of value should not be allowed. But where this is not the case, a party should not be shut out from his right to appeal to England merely because of an erroneous valuation in the plaint.

I, therefore, turn to the plaint to find out what was the value given by the plaintiff for this village. In para 85 of the plaint it is stated that the value of the village Chainpur (which is a separated tauzi paying Re. 1 annually as revenue), subject-matter of the suit, is Rs. 20 and court-fee is paid ad valorem thereon. The plaintiff valued the relief of permanent injunction at Rs. 5,100, which amount was for court-fees and jurisdiction. It is, therefore, clear that the value of the village is given only as a notional value for purposes of stamp duty. It is true that the plaintiff valued the relief of the permanent injunction at Rs. 6,100, but it is open to the plaintiff to put any reasonable value on a permanent injunction which cannot ordinarily be valued in terms of money. There was no issue on the question of valuation before the trial Court because in the written statement no objection was taken or could be taken to the notional value put by the plaintiff. In the written statement, I find at para 36 that the defendant himself stated that the value of the properties in suit is Rs. 40,000, but no issue was raised, and the Subordinate Judge was never asked to decide what was the true value of the property in suit. Issue No. 6 was whether the plaintiff''s suit was maintainable without a prayer for possession. But at the time of the hearing this issue was not pressed (sea page 38 of the judgment). It is, therefore, clear that the parties in the trial Court treated the suit as a suit for a mere declaration with the consequential relief for permanent injunction only and not a suit for declaration of title and possession.

In these circumstances, there is no room for the application of the doctrine that a party cannot be allowed to approbate and reprobate. The case appears to be similar to the case of Baboo Lekhraj Boy v. Kanhayd Singh 1 I.A. 317.

In Mahendranarayan Ray Chaudhuri Vs. Janakinath Ray, . Rankin, C.J. adopted the test that where the plaint is not required to be valued on the market value, then the plaintiff can show what the actual value of the property is. This is exactly the position in the present case where as I have shown the plaintiff did not give the value in para 88 as the market value of the property. This is unlike the case of Mahamad Hossain Khan Vs. Mansur Ali and Others, , where the plaintiff put his own value as the market value and, therefore, he was not allowed to prove a higher value. In that case owing to the lower value put by the plaintiff the matter went to the District Judge and then in second appeal to the High Court. This is not the position here.

For these reasons, I am of opinion that in the present case the defendant is not estopped from proving the real value of the property in dispute.

The judgment of the High Court is a judgment of variation and not a judgment of affirmance. It was argued by Mr. Chatterji that we should hold that the judgment of the High Court was a judgment of affirmance on the cardinal point in issue between the parties, namely, that the appellant cannot be allowed to Tetain possession of village Chainpur because the plaintiff has been held to be the real vendee and not merely a mortgagee. This argument, however, would have been sound if it was open to us to dissect the decree. It was pointed out by their Lordships of the Judicial Committee in Jowad Htissain v. Gendaft Singh AIR 1926 P.C. 93.

The appellant''s counsel strongly urged that the appeal was not against the decree, bat only against the items in the decree. This is a complete misunderstanding. An appeal mast be against the decree as pronounced. It may be rested on an argument directed to special items, but the appeal itself must be against the decree, and the decree alone.

For these reasons, I am of opinion that both the requirements of Section 110, Civil P.C. are satisfied, namely, that the judgment is a judgment of reversal, and the value of the subject-matter of the suit in the Court of first instance and the value of the subject-matter in dispute on appeal to the Privy Council is over Sections 10,000. The appellant is, therefore, entitled to the usual certificate, but in the circumstances, I would make no order for the costs of this application.

Agarwala Ag. C.J.

I agree.