Abdur Rehman Khan and Others vs Raghbir Singh and Others

Haniam Singh, J.—Chaudhri Abdur Rahman, Khan Bahadur Chaudhri Niaz Ali, Rohmat Ali, Khan Bahadur Babu Sheikh Mohammad apply under Order 45, Rule 2 and 3 read with Sections 109 and 110, Code of Civil Procedure, for leave to appeal to the Supreme Court of India from the decree of the High Court in Abdur Rehman v. Baghubir Singh Regular F.A. No. 364 of 1942 passed on 31-3-1947 : (51 P.L.R. 119). The Defendants-applicants having migrated to Pakistan on the partition of the Punjab Province the Custodian, Evacuee Property, Punjab, has appeared in these proceedings for the Defendants-applicants.

Briefly summarised the facts giving rise to this application are these. On 16-2-1921, Sardar Jagdev Singh mortgaged 595 kanals and 18 marlas of land situate in village Rajparura to Bawu Singh of village Mahal and Ramoo of village Chhona for a sum of Rs. 6500. On 18-4-1924, Sardar Jagdev Singh sold the land in suit to Chaudhri Abdur Rahman and Khan Bahadur Chaudhri Niaz Ali Defendants 1 and 2 for Rs. 26,500 on the foot of the sale-deed, Ex. D.W. 23/1. On 15-4-1941, Raghbir Singh on his own behalf and as next friend of Puran Singh minor instituted the suit for possession of the land sold by Sardar Jagdev Singh, father of the Plaintiffs, to Chaudhri Abdur Rahman Khan and Khan Bahadur Chaudhri Niaz Ali Defendants 1 and 2 alleging that the land in suit was ancestral in the hands of Sardar Jagdev Singh qua the Plaintiffs and the sale was without consideration and legal necessity. Plaintiffs claimed exemption from the law of limitation on the ground that Puran Singh Plaintiff was a minor when the suit was instituted and that Raghbir Singh Plaintiff who was a minor at the time of the sale had attained majority less than three years before the suit.

Now, Defendants 1 and 2 sold one-ninth of the land purchased by them to Rehmat Ali Defendant 3 for Rs. 3500 and sold one-third of the land purchased by them to Khan Bahadur Babu Sheikh Mohammad Defendant 4 for Rs. 10,000. Khan Bahadur Fateh Din Defendant 10 acquired the land comprised in khasra Nos. 360 and 642/361 by means of exchange from Defendants l, 2 and 4.

Defendants 1 and 2 denied the allegations set out in the plaint and pleaded that besides the sale-price of Rs. 26,500 they had paid an additional sum of Rs. 1400 to Bawa Singh and Ramoo mortgagees under the mortgage-deed of 16-2-1921, for the cost of improvements made by them and that they had improved the land that was in their possession by levelling, sinking wells, putting well-gears, planting trees and constructing buildings at a cost of Rs. 20,000. Defendant 3 pleaded that he had improved the land purchased by him from Defendants l and 2 by sinking a well, laying out a garden and constructing buildings at the cost of Rs. 15,000 and that he was a bona fide transferee for value without any notice of the Plaintiffs'' claim. Defendant 10 also pleaded that ho had made improvements on the land in his possession at a cost of Rs. 12,850.

On the pleadings of the parties the trial Court fixed a number of issues, but in the present proceedings we are concerned with issues 3 to 7 and 10 to 12. Issues 3 to 7 and 10 to 12 read:

Was the land in dispute described in paragraph alif of the heading of the plaint ancestral of Jagdev Singh deceasad qua the Plaintiffs?

Did the sale effected by Jagdev Singh in favour of Defendants 1 and 2 take place for legal necessity and consideration?

Did the said sale take place as an act of good management and were the Plaintiffs bound by it on that account?

What amount, if any, was paid by Defendants 1 and 2 to the previous mortgagees and were the Plaintiffs bound to pay that amount to Defendants 1 and 2?

Did Defendant 1 make any improvements upon any portion of the land in dispute? If so, what was the value of the said improvements and were the Plaintiffs liable to pay that amount to him?

Are Defendants 3, 4 and 10 transferees in good faith and for valuable consideration and what is its effect ?

Did Defendant 3 make any improvements upon the land in dispute? If so, what was their value and were the Plaintiffs liable to pay that value to him?

Did Defendant 10 make any improvements upon the land in dispute? If so, what was their value and was he entitled to recover the value from the Plaintiffs?

Issues 9 and 13 to 19 related to the land situate in village Narot Mehra which was originally included in the suit but in respect of which the suit was eventually withdrawn by the Plaintiffs with liberty to bring a fresh suit. Issues 1 and 2 relating to multifariousness of the suit and the bar of limitation respectively were found for the Plaintiffs and there was no dispute with respect to these issues in the Appellant proceedings in the High Court.

On issue 3 the trial Court found that the land in suit excepting land measuring 84 kanals 13 marlas comprised in khasra Nos. 6, 8, 47, 49, 50, 136, 137, 141, 144, 205 and 360 was ancestral in the hands of Sardar Jagdev Singh vendor qua the Plaintiffs. On issue 4 the trial Court held that legal necessity for the sale in suit was proved to the extent of Es. 2760. On issue 5 the trial Court found that the sale in question was not an act of good management and did not bind the Plaintiffs except to the extent mentioned above. On issue 6 it was held that Rs. 1400 had been paid by Defendants l and 2 to the previous mortgagees in addition to the amount left with them under the terms of the sale deed for payment to the previous mortgagees but that the Plaintiffs were not bound to pay the sum of Rs. 1400 to Defendants 1 and 2. On issue 7 it was held that Defendant 1 had made improvements worth Rs. 3264-4-10 upon the land in his occupation and that the Plaintiffs were liable to pay Rs. 3264-4-10 to Defendant 1 before recovering possession of the land from him. Issue 8 was decided against the Defendants and on issue 10 it was held that Defendants 3, 4 and 10 were transferees for valuable consideration, but considering that they had not purchased the property after making any enquiry as to the validity of the sale in favour of Defendants 1 and 2 they could not be regarded as transferees in good faith. In any case, the trial Court found that Defendants 3, 4 and 10 could not claim in the land purchased by them a title better than that of their vendors. On issue 11 it was held that Defendant 3 had made improvements worth Rs. 8813 on the land held by him. The Plaintiffs, however, having offered, in the exercise of the option given to them by Section 51, T.P. Act, 1882, to part with their title to the land held by Defendant 3, on receipt of its market value, rather than recover its possession on payment of the value of the improvements, and it being agreed between the parties that Rs. 3500 was the market value of the land held by Defendant 3, it was decided that Defendant 3 could retain possession of that land on payment of Rs. 3500 to the Plaintiffs. On issue 12, in view of a similar offer having been made by the Plaintiffs, it was held that Defendant 10 could retain possession of the land comprised in khasra No. 642/361 on payment of Rs. 84-0-6 to the Plaintiffs. In the result the Plaintiffs suit in respect of 84 kanals 13 marlas of land described above was dismissed and they were granted a decree for possession of the remaining land on payment of the sum of Rs. 2760 for which legal necessity had been held to be proved to Defendants 1 to 4 and 10 and an additional sum of Rs. 3264-4-10 to Defendant 1 on account of the value of improvements made by him on the land in his occupation, subject, however, to the proviso that Defendant 3 could retain possession of 185 kanals, 7 marlas of land which was recorded in the jamabandi Ex. P.C. 2 as belonging to him on payment of a sum of Rs. 3500 to the Plaintiffs.

From the decree passed by the trial Court, in Civil Suit No. 124 of 1941 On 4-8-1941, Defendants 1 to 4 appealed in the High Court u/s 35, Code of Civil Procedure, 1908, while Raghbir Singh and Puran Singh Plaintiffs cross-objected. In the High Court the contest between the parties was confined to the character of the land sold consideration and necessity for the sale and the liability of the Plaintiff for the value of the improvements effected by the Defendants on the land in suit.

Now, the appellate Court has in modification of the decree passed by the trial Court, granted the Plaintiffs a decree for possession of the land in suit excepting 84 kanals 13 marlas of land comprised in khasra Nos. 6, 8, 49, 60, 136, 137, 111, 205 and 360 on payment of a sum of Rs. 9790 by the Plaintiffs to the contesting Defendants in addition to a sum of Rs. 3264 which the Plaintiffs were ordered to pay to Defendant 1 before dispossessing him. The appellate Court has further ordered that Defendant 3 shall not be dispossessed of the land in his possession if he has paid or does pay a sum of Rs. 3500 to the Plaintiffs as the value of that land and Defendant 10 shall not be dispossesed of the land comprised in khasra No. 642/361 if he has paid or does pay to the Plaintiffs a sum of Rs. 84-9-6. In appeal the parties were left to bear their own costs.

In these proceedings, Mr. Daya Kishan Mahajan, learned Counsel for the Defendants-applicants, contends that inasmuch as the value of the subject-matter of the land in the Court of the first instance was Rs. 20,000 or upwards and the value of the subject-matter in dispute in appeal to the Supreme Court of India is again Rs. 20,000 or upwards and the decree made by this Court is not of affirmance the Defendants-applicants are entitled as of right to appeal to the Supreme Court of India. He then contends that in case the Court finds that the decree made by the High Court was not a decree of affirmance the appeal, involves substantial questions of law. In any case it is said that the case is a fit one for appeal to the Supreme Court of India u/s 109(c), CPC read with Article 133 of the Constitution of India.

Dealing with the second point first it is clear from the resume of facts set out above that the questions debated in the appellate proceedings were confined to the question of the ancestral nature o� the land sold, consideration and necessity for the sale and the liability of the Plaintiffs for the value of the improvements effected by the Defendants on the land in Suit. Clearly none of the three questions that have been decided by the Appellate Court come within the last clause of Section 110, Code of Civil Procedure.

In the written application for leave to appeal to the Supreme Court a number of points have been raised. Mr. Daya Kishan Mahajan, however, urged in those proceedings at the appeal involves three substantial questions of law specified herein below: (l) Whether adoption amongst Bengal Rajputs residing in the part of the district of Gurdaspur where Kiraths family resided was recognised as having the effect of completely transplanting the adopted son from the natural into the adoptive family; (2) Whether in all cases an alienee who ban taken an alienation in lieu of antecedent debts, has to prove not only an enquiry into the justness of the debts but also an enquiry into the justness of those debts; and (3) Whether the vendees in the present case were relieved of the duty of proving that the mortgage debt on the foot of the mortgage of 1921 was either a just antecedent debt or was a debt incurred for a legal necessity.

In order to bring a case within Clause (3) of Section 110 of the Code it is not enough that a mere question of law is involved; the question of law must be a substantial question of law. Clearly, questions of law which have been definitely settled by the Privy Council or the High Courts in India are not substantial questions of law within Clause (3) of Section 110 or Article 133 of the Constitution of India. Now, the questions set out above are covered by authoritative pronouncements of the Lahore High Court and the Privy Council. Those cases have been admirably summed up in Abdur Rehman Khan v. Raghubir Singh 51 P.L.R. 119, the case out of which these proceedings have arisen and it cannot be said that the law laid down in the authorities cited in Abdur Rehman Khan v. Raghubir Singh 51 P.L.R. 119, admits of any doubt. Clearly, the questions raised in these proceedings are not substantial questions of law within Clause (3) of Section 110 of the Code.

I now pass on to examine whether the decree made by the High Court is one of affirmance or of variance. If the former, no appeal lies to the Supreme Court of India as no substantial question of law arises from the decree of the High Court. If the latter, an appeal will lie as a matter of right even if there be no question of law involved.

Mr. Daya Kishan Mahajan points out that considering that the amount on payment of which the Plaintiffs could get possession was raised by the appellate Court from Rs. 2,760 to Rs. 9,790, the decree made by the appellate Court was one of variance. A similar point arose in Brahma Nand v. Sanatan Dharam Sabha AIR 1944 Lah. 329 : (I.L.R. (1945) Lah. 156 F.B.). In that case Din Mohammad J. (Ram Lall and Beckett JJ., concurring) said:

If a decree of a Court of first instance is affirmed by the Court, no appeal lies to His Majesty in Council unless a substantial question of law is involved. Why should then a party be allowed to override this salutary provision of law and to take his appeal to His Majesty in Council on a simple question of fact on which the High Court has agreed with the Court below merely because on a matter quite unconnected with it a variation has been introduced by the High Court against which he has no grievance whatever? The part varied by the High Court not being any longer under controversy the decree sought to be appealed against is obviously one of affirmance and is not appealable unless a substantial question of law is involved.

The point again came up for consideration in Wahid-ud-din v. Makhan Lal AI.R. 1944 Lab. 458 : (I.L.R. (1945) Lah. 942 F.B.). In that case following the decision in Brahma Nand v. Sanatan Dharam Sabha AIR 1944 Lah. 329 : (I.L.R. (1945) Lah. 156 F.B.), Din Mohammad J. (Blacker and Abdur Rehman JJ., concurring) said:

It has been held that if this Court partly affirms and partly reverses the decision of a Court immediately below, the person aggrieved by the affirmed portion of the decree has no right of appeal to His Majesty in Council against that portion of the decree, merely because in the other portion of the decree a variation has been made entirely to his satisfaction and he has no appealable grievance left in respect thereof.

From a perusal of the judgment in Brahma Nand v. Sanatan Dharam Sabha AIR 1944 Lah. 329 : (I.L.R. (1945) Lah. 156 F.B.), it appears that the Court considered in that case all the important decisions of the High Courts in India bearing on the point in controversy and came to the conclusion stated above. The matter has since then been considered in, L.P. Lakshmanan Chettiar and Others Vs. Thangam alias Palanichami Chetti and Others, In that case Yahya Ali J, (Wadsworth Offg. C.J. concurring) said:

We must hold that when the appellate decree modifies the original decree upon a single point and that completely in the Appellant''s favour so that he has no further grievance in that matter, ho cannot have, because of that modification, a right of appeal on other points on which the Courts have concurred without showing that there is a substantial question of law involved.

The opposite view finds expression in the decision of a Special Bench of three Judges of the High Court at Patna in Raja Brajasunder Deb and Others Vs. Raja Rajendra Narayan Bhanj Deo, . In that case Sir Trevor Harries C.J. (Fazl Ali and Manohar Ball JJ. concurring) basing his decision on AIR 1925 60 (Privy Council) overruled Mahabir Prasad Vs. Brij Mohan Prasad, and granted the leave applied for. In deciding the case Sir Trevor Harries C.J. said:

There can be no question that the point involved in this case is a difficult one and there is a conflict of decisions of this Court; but in my judgment the true test is whether the decision of the Court below as a whole has been affirmed by the High Court. The difficulty arises owing to the use of the phrase ''the decision of the Court immediately below the Court passing such decree.'' Had the words ''decree of the Court below'' been used the matter would have been clear. In my view, however, the expression the decision of the Court immediately below the Court passing such decree as used in Section 110 means the same as the, expression ''decree of the Court below.'' Once an appeal has boon decided, the decree of the Court below is merged in that of the appellate Court and strictly there is no longer in existence a decree of the trial Court. There is only a decision, and in my view the word ''decision'' means the decision of the trial Court taken as a whole. It must be remembered that an appeal is not preferred against any item or items in a decree. The appeal must be preferred against the whole decree, though for the purposes of the valuation the subject matter in dispute in appeal only is valued. This was clearly laid down by their Lordships of the Privy Council in Jowad Hussain v. Gendan Singh 6 Pat. 24 : (A.I.R. 1926 P.C. 93).

From what has been said in the preceding paragraph it appears that the Patna Special Bench thought that the true test in such cases was whether the decision of the Court below as a whole has been affirmed by the High Court and not whether the decision on the point or points loft in dispute has been affirmed by the High Court. In the opinion of the Special Bench the expression "decision of the Court immediately below the Court passing such decree" used in Section 110 means the same as the expression "decree of the Court below." Again the Special Bench of the Patna High Court thought that the Privy Council laid down in Jowad Hussain v. Gendan Singh 6 Pat. 24 : (A.I.R. 1926 P.C 93), that the appeal must be preferred against the whole decree.

With very great respect I am unable to accept the reasoning in Raja Brajasunder Deb and Others Vs. Raja Rajendra Narayan Bhanj Deo, In the first place the Special Bench of the Patna High Court failed to notice that Sir George Lowndes, who appeared for the applicants before their Lowndes of the Privy Council in AIR 1925 60 (Privy Council) stated in the course of his arguments that the value of the maintenance in dispute exceeded Rs. 10,000 and that part of the case was on that account alone independently appealable u/s 110, Code of Civil Procedure. In the second place the Court found that there was no distinction between the words �decree� and �decision� occurring in Clause (3) of Section 110, Code of Civil Procedure. That there is a real distinction between the word �decision� and the word �decree� occurring in Clause (3) of Section 110, Code of Civil Procedure, appears from Sub-Rules 1 and 2 of Rule 4 and Rule 5 of Order 20, Code of Civil Procedure, which make it abuadantly clear that the finding of a Court upon each issue is a �decision� within the meaning of those rules. That being so, I am of view that the expression �decision of the Court immediately below the Court passing such decree" used in Section 110 does not mean the same as the expression �decree of the Court below."

Lastly it was said in Brajasunder Deb v. Rajendra Narayan A.I.R (28) 1941 Pat. 269 : (20 Pat. 459 S.B.) that it was clearly laid down by their Lordships of the Privy Council in Jowad Hussain v. Gendan Singh 6 Pat. 24 : (A.I.R. 1926 P.C. 93) that the appeal must be preferred against the whole decree. Now, the point that arose in Jowad Hussain v. Gendan Singh 6 Pat. 24 : (A.I.R. 1926 P.C. 93) was the question whether the terminus a quo for an application for passing a final decree under Article 181 of Schedule 2 to the Limitation Act, 1908, ran from the expiry of the time fixed by the original preliminary decree, or from the date when the appeal against that decree was dismissed. In deciding that point Viscount Dunedin Said:

The Appellant''s counsel streneously urged that the appeal was not against the decree, bat only against the items in the decree. This is a complete misunderstanding. An appeal must be against a 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.

That this is so is plain from a perusal of Sections 96 and 100, CPC Section 96 of the Code enacts:

Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court anthorised to hear appeals from the decisions of such Court.

Section 100 of the Code then provides:

Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force an appeal shall lie to the High Court from every decree passed in appeal by any Court sub-ordinate to a High Court, on the grounds-mentioned in Clauses (a), (b) and (c) of Section 100(1) of the Code.

But it would not be legitimate to infer from what was said by their Lordships of the Privy Council in Jowad Hussain v. Gendan Singh 6 Pat. 24 : (A.I.R. 1926 P.C. 93) that a party to a civil proceeding has no right to appeal from a part of the decree or that the words "the decree appealed from in Clause (3) of Section 110 include that part of the decree variation wherein has been made entirely to the satisfaction of the applicant and against which the applicant has no appealable grievance left. That this is so is plain from a perusal of Rules 22 and 32 of Order 41, Code of Civil Procedure. The relevant portion of Rule 22 of Order 41 reads:

Any Respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree....

Rule 33 of Order 41 also supports the view that the appeal may be as to part only of the decree. For all these reasons, I with very great respect express my inability to accept the view expressed by the Special Bench of the Patna High Court in Raja Brajasunder Deb and Others Vs. Raja Rajendra Narayan Bhanj Deo,

In deciding the point raised I am glad that the view that I am taking in these proceedings was taken in Prandhan Das Vs. Patayet Saheb Promode Chandra Deb and Others, In that case, Fazl Ali C.J., (now Judge, Supreme Court of India) and Manohar Lall J. following Karunalaya Valangupalli v. Rev. Father Pignot AIR (30) 1943 Mad. 67 : (208 I.C. 65) and Brahma Nand v. Shree Sanatan Dharam Sabha AIR 1944 Lah. 329 : (I.L.R (1945) Lah. 156 F.B.), said:

We are inclined to agree with the view set out in these decisions and to hold that the decree against which the Petitioner seeks to appeal is one of affirmance.

This brings me to Jaggo Bai Vs. Harihar Prasad Singh, and Mt. Jamna Kunwar Vs. Lal Bahadur and Others, In Mt. Jamna Kunwar Vs. Lal Bahadur and Others, Sinha J. (Iqbal Ahmad C.J. concurring) following Kdar Nath and Another Vs. Emperor, said:

We think that the view taken, by Sir Arthur Harries is, if we may say so with respect, in accord with the view of their Lordspips of the Privy Council and the view taken by the learned Judges of the Lahore High Court, if we may again say so with great respect, militates against it.

In Jaggo Bai Vs. Harihar Prasad Singh, the decision proceeded upon the rule laid down by the Privy Council in AIR 1925 60 (Privy Council) In deciding that case Thom C.J., (Collistor and Ganga Nath JJ. concurring) said:

The Privy Council did decide that an Appellant is entitled to challenge the decision of a High Court even if the High Court has modified in his favour a decision of the trial Court where the amount involved is Rs. 10,000 or upwards.

For reasons given herein before I am unable to accept the view expressed in Jaggo Bai Vs. Harihar Prasad Singh, and Mt. Jamna Kunwar Vs. Lal Bahadur and Others,

From an examination of the case law bearing on the point in issue it appears that though the judgment of the Privy Council in AIR 1925 60 (Privy Council) has not been uniformly interpreted in the various High Courts in India, the view expressed by me in the preceding paragraph has been followed by the Calcutta, Bombay, Madras and Lahore High Courts, while the opposite view has been expressed in Raja Brajasunder Deb and Others Vs. Raja Rajendra Narayan Bhanj Deo, , Jaggo Bai Vs. Harihar Prasad Singh, and Mt. Jamna Kunwar Vs. Lal Bahadur and Others, With very great respect for the eminent Judges who decided the Patna and the Allahabad cases I would for reasons stated above prefer the view taken by the Calcutta, Madras, Bombay and Lahore High Courts to the view expressed by the Patna and the Allahabad High Courts and find that the decree made by this Court is a decree of affirmance and not one of variance.

In this view of the matter the petition u/s 110, CPC fails.

Mr. Daya Kishan Mahajan then urges that the case is a fit case for appeal within Section 109 (c), Code of Civil Procedure. Now, the test to determine whether a case is a fit one to be certified u/s 109(c), CPC is to see whether the point involved is of great public or private importance or is of such a nature that the decision thereof might result in a precedent governing numerous cases. This test is not satisfied in the present case.

For the foregoing reasons the petition fails and is dismissed with costs.

Kapur J.

I agree.