Alagappa Chetty vs Nachiappan alias Kirukan and Others

Oldfield, J.—These 25 petitions are for orders u/s 110 and Order 45, Rules 3 and 8 to enable the petitioners to appeal to His Majesty in

Council against the 25 decrees passed by this Court in second appeals. The suits were instituted in the court of the District Munsif, who dismissed

them. First appeals were allowed by the District Judge; and in the cases before us, this Court allowed the second appeals setting aside the District

Judge''s decrees.

The circumstances are that the plaintiff sued for possession of certain plots of land under a title to a larger extent, in which they were alleged to

be included in the village of Sekkalakottai. Some of the defendants in each suit were impleaded as trespassers in actual occupation. 6th to 9th

defendants, who were subsequently impleaded set up that the plots were part of their inam village of Kalanivasal and that the other defendants just

referred to were holding under them. The dispute was therefore whether the suit plots were in Sekkalakottai village or Kalanivasal; that is where

the boundary line between the two villages ran with reference I to the suit plots. Three questions were formulated in the judgment of Spencer, J.

and were dealt with by both the learned judges. Of these three questions two are at present material; the second: Whether the Inam

Commissioner''s decision in 1865 is binding on the parties to this suit and decisive of the questions of title involved? and the third: Whether the

decision of the Deputy Superintendent of Survey, Mr. Gompertz in 1876 was conclusive against the Zamindar and the plaintiff, who claims under

him, and whether according to that decision the lands in dispute belong to Kalanivasal?

The suits were valued in the District Munsif''s court with reference to Court Fees Act, Section 7(5)(d) and (e) on the market value of the land in

dispute; and the aggregate value of the lands concerned in the 25 suits with which we have to deal is only Rs. 2,800. It is said that even assuming

that these suits can be consolidated for the present purpose, the condition as to the value of the subject matter postulated in Section 110, C.P.C. is

not complied with.

The first argument by which the petitioners propose in these circumstances to justify the grant of leave is (hat independent of the value of the

properties, the suits raise questions of general importance and that therefore leave should be given and that applications for leave in respect of them

are covered by Section 109(c). This is alleged in respect of the second question just set out and also on the third in so far as it raises the issue

whether the surveys made similarly with the survey of Mr. Gompertz therein referred to in private estates are binding on the owners of those

estates and of the adjacent lands. We have not been shown that either of these questions has affected or is likely to affect any large number of

persons, and we cannot do better than borrow the language used in Hirjibhai v. Jamsheclji (1914) 15 Bom. L.R. 1021 and say that in this case

there is not involved any question the decision of which might result in a precedent governing numerous other cases or in which the right in dispute

is of great public or private importance. This argument on behalf of the petitioners fails.

I come next to a more substantial and difficult contention that these cases come within Clause (2) of Section 110 because the decree or final

order in each of them involves indirectly a claim or question to or respecting property of the value of Rs. 10,000. The contention is supported in

this way. In the judgment of this Court it was decided that the line laid down by Mr. Gompertz passes through or on one side of the different suit

plots. That line however had to be arrived at for the purpose of these cases with regard to various indications as to its direction and length given in

Mr. Gompertz''s award. It is said that this Court''s determination of the whole length of that line involves a determination against the plaintiff''s right

to the remainder of the larger extent, which that line was intended to ascertain. It is true that in the judgment of Spencer, J. there are references as

to points in the line referred to as B, B-1, B-2, etc. and if the position of the larger extent just mentioned had been in issue, it might be said that it

was explicitly or impliedly ascertained by these findings. But there was no issue as to that larger extent. In fact the plaintiff, avoided raising any such

issue. For, when he joined 6th to 9th defendants and found that they disputed his ownership of the whole extent, he did not make any attempt to

amend his plaint and claim a declaration or other relief appropriate to their claim; nor did he attempt to have any issue decided, which necessarily

involved its discussion. To turn to authority, it is to be observed first that, when the question is in the words of the section of ""a decree or final

order involving indirectly a claim or question"" no exact or rigid construction of the word ''indirectly'' can be given. It must inevitably be a question of

degree whether the relation between the decree or order and the claim or question is established with sufficient closeness to be in an indirect

relation. The authorities relied on by the petitioners are Bhagwat Sahai v. Pashupati Nath Bose (1906) 3 Cal. L.J. 257, Sri Kisheu Lal v. Kashmiro

ILR (1915) All. 445, Jamadar v. Imam Bakhat (1913) 16 I.C. 431 , Khaga Ashanulla v. Karunamoyi Chowdary (1879) 4 Cal. L.R. 125, and

Joogul Kishore v. Jotendre Mohun Tagore ILR (1883) Cal. 210 . Of these decisions the two last mentioned may perhaps be explained with

reference to the court''s exercise of the power of consolidation which at that time was no doubt not recognised by statute, but which was generally

resorted to. As regards the others, the first related to a partition, the second to an award and the third to a gift deed, and in all of then the whole of

the property together with the appellant''s right in it either really was or at least was held by the court to be affected, and there was no question, as

there is here, of property or a right, which was not the subject of the litigation. Reference may next be made to a decision of the Judicial

Committee, on which considerable reliance has been placed, Macfarlane v. Leclairc (1862) 15 M.P.C.C. 181. Leave was no doubt given there,

because the effect of the judgment of the court of Appeal of Lower Canada was to place in jeopardy the whole of the goods contained in the

certificate of assignment and the property became immediately liable to satisfy the claims of creditors of the original defendant to an uncertain and

indefinite amount, What however is relied on is the next statement of Their Lordships. ""It may turn out in the result that the petitioners are the sole

creditors of Delsderniers, and therefore, that the goods in possession of the appellants may have to bear no greater liability than the amount of the

debt due to the petitioners. But all this was contingent at the time of the judgment, and it is the immediate effect of the judgment which must be

regarded, as I the right to appeal arises as soon as it is pronounced"". Emphasis is laid by Mr. Govindaraghava Iyer on behalf of the petitioners on

the fact that the leave was given on considerations, which were merely contingent at the time of the judgment. It seems to me however that the

circumstances in that case differ greatly from those in the cases before us. Attention is necessary to the conclusion of the sentence, in which the

contingent effect of the judgment is referred to and the reference in it to the judgment as its immediate effect is the matter to be regarded. The

immediate effect of the judgment was to bring the right to the whole property in question, because it opened the gates to claims to rateable

distribution by other creditors, and to deprive the appellants of what they alleged to be their exclusive right to the property in their hands for the

realisation of their debts. The rule really applicable to the present case is in my opinion to be found in two Indian decisions, namely. Hanuman

Prasad v. Bhagwati Prasad ILR (1901) All. 236 , and Raja Rajeswara Sethupaihi v. Kamith Ravuthan (1921) 42 M.L.J. 78 , in which that

decision is referred to with approval. The ground of the decision in those cases was that the question whether a decree involves indirectly a claim

or question within the meaning of the section must be decided with reference to actual circumstances at the time and not to circumstances, which

are remote, and not in particular to a mere possibility, that future suits as to all or part of the larger extent of the property alleged to be concerned

may be instituted at some time in the future. It is true that in bath the cases last mentioned there were such future suits to be apprehended from

persons, whose existence and whose claim to a legal character enabling them to sue was not disputed, whilst here we have no knowledge, aid in

fact the petitioners deny that there are any other persons in possession of any part or the larger extent now at stake who could possibly bring suits

in the future and take advantage of this judgment. I do not however think that any material distinction can be founded on this especially as the mere

contingency of possible future suits was the ground of decision relied on in these authorities and the existence of persons, who might be interested

to bring such suits, was merely mentioned in the statement of facts and not referred to afterwards as a ground of decision.

As for the possibility of this decision being res judicata against the plaintiff in any future proceedings, it may be mentioned that defendants 6 to 9

in opposing the petition disclaimed any possibility that it could be so relied on. It may be added that as Jenkins, C.J., laid down in De Silva v. De

Silva (1905) 6 Bom. L.R. 403 that decision being followed in Gosani Bhaunath Gir v. Bihari Lal (1919) 4 Pat. L.J. 415 it is the decree that has to

be looked at as it affects the interests of the parties prejudiced by it. The second sentence in Section 110 refers to the decree or final order as

involving indirectly some claim or question to the property concerned, and it may be doubted whether the decree, as opposed to the grounds of

decision, can be said to do so, when such claim or question is merely involved in an incidental finding. There is in my opinion no more than an

incidental rinding in the judgment of this Court as regards the Gompertz''s line, except in so far as it determines the ownership of the plots which

were directly in dispute, and I do not think that because of such a mere incidental finding the decree or final order can be said to involve indirectly

any question regarding the larger extent.

The next argument attempted is that, although the aggregate market value of the plots actually in question in these suits is only Rs. 2,803, the

petitioners should have an opportunity to prove that it is really far larger and is over Rs. 10,000 as required by Section 110. It is clear that this

contention must be scrutinized closely. For the petitioners in effect desire to repudiate the declaration, which they appended to their plaints and on

which they were allowed to institute their suits on a court fee lower than they otherwise on their present showing would have been bound to pay

and further there is really very little to support their allegation as to the fact of their mistake. It is for instance stated in the affidavits simply that the

information on which the petitioner acted was imperfect and incorrect and the petitioner finds that the sites have always been more valuable, that is

at the time when the suits were instituted, and that the aggregate value of the sites and buildings together with mesne profits at the time of the suit

was more than Rs. 10,000. There is nothing, it is to be noticed, to explain how the petitioner came to adopt the market value of the property, on

which his valuation had to be made, at a figure in the aggregate of Rs. 2,800. There is nothing as to the details, by which he now proposes to arrive

at the higher figure he contends for. There should in my opinion be much stronger reason for allowing before a fresh enquiry into a matter on which

the petitioner has already put forward his estimate can be allowed at this stage. We may further refer to the decision of the Judicial Committee in

Kristo indro Saha v. Hurromonee Dassee (1873) 1 I.A. 84. In that case no doubt the question was of a respondent being debarred from

repudiating the value given by the petitioner after that respondent had relied on that value in order to obtain consideration of the facts of the case in

appeal by the High Court, instead of by the District Judge, and here the case is different, because the petitioner claims the right to repudiate the

valuation, for which he is himself responsible. But afortiori the conclusion should be against his right to do so. We have been referred as authority

for a different view to the judgment of Sanderson, C.J. in Surendranath Roy v. Dwarakanath Chakravarthy ILR (1916) Cal. 119. But it is not

necessary to read the portion of the judgment in question as embodying more than the principle that valuation for the purpose of the Court Fees

Act is not necessarily inconsistent with the adoption of a higher value of the property for the purpose of appeal to His Majesty in Council. For in

that case the very low valuation for court fees was the valuation in accordance with Section 7(4) of the Court Fees Act and it was not identical as

the valuations in the suits before us are, with the market value. There is nothing accordingly in the judgment of Sanderson, C.J., to support the view

that a party is entitled to repudiate the valuation he has already made on the market value and to claim a reascertainment of the market value,

unless special circumstances (of which there are none in this case) are available. It may be added that the other learned Judge, who was a party to

that case, Mookerjee, J. did not refer to the point. In these circumstances, I think that the evidence as to the market value in the suits is clear and,

as it consists in the petitioner''s own statement, there is no sufficient reason for supposing that the valuation was reached owing to any mistake.

Petitioners have no right to repudiate it and must abide by it now, when they ask for leave to appeal, as they did when they desired to ascertain

what stamp duty they were to pay and in what court they were to sue and how many appeals they would be able to secure. This ground also fails.

The result is that the petitions are dismissed with costs. The petitioners will pay the respondent''s costs, vakil''s fee in each petition being Rs. 20.

Spencer, J.

On the first point I agree with my learned brother that this is not a case in which we can certify u/s 109(c) C.P.C. that the decree is a tit one for

appeal to His Majesty in Council as being one of very wide public or private concern.

I also agree on the third point that the plaintiff, having deliberately undervalued his suit in the court of first instance and having thus obtained the

decision of three courts in this country upon his claim, cannot be allowed to repudiate his valuation fixed upon the market value of the property for

the purpose of obtaining the decision of a fourth tribunal. I do not wish on these two points to add anything to the reasons given by my learned

brother.

On the second point, which presents some difficulty it is stated by the petitioner''s learned vakil that there are other lands, at present, I

understand, unoccupied lands about which disputes may hereafter arise between the plaintiff in these suits and the Kalanivasal Inamdars or their

assignees and tenants and that the award of Mr. Gompertz will affect the determination of such disputes. But I find no statement in the petitioner''s

affidavit that any such dispute at present exists or is likely to arise in the near future. When it does arise and if the parties eventually come again into

court, it will depend partly on the question how far Mr. Gompertz''s award can be applied upon the ground to that portion of the boundary line

then in dispute, and upon other questions such as whether either side has got a title by prescription, whether the plaintiff or the defendant succeeds

in that litigation. The only question that is likely to be regarded as res judicata in consequence of our decision is the finding that Mr. Gompertz had

authority under the Surveys Act to finally determine the boundary line in 1876 when he made his award. Can it then be said that our judgment in

second appeal directly or indirectly involves a claim or question to or respecting property exceeding Rs. 10,000? The claim that was before us was

not a claim of such value. What may be the extent and value of any future claim is purely a matter of conjecture. There may never be any further

substantial claim made in court. Though one result of our decision may be that an idea is put into the head of one of the parties to advance a claim

to property not now in his possession, the fact remains that no dispute is now in existence, and it can hardly be said that Section 110 was intended

to provide for all possible claims and questions that might conceivably arise in the future. If a claim of that description should happen to come

before a Civil Court at some future date, it will not necessarily comprise the whole of the lands west of Mr. Gompertz''s line; so that we should be

going too far if we were to ascertain the market value of that whole extent and base our certificate on that value. I therefore think that the petitions

for leave to appeal should be dismissed with costs.