Babu Shama Kant Lal and Others vs Mahanth Ramdhan Puri

Dawson Miller, C.J.—On the whole although I think this case is not altogether free front doubt, I consider that it falls within the provisions of Section 110 of, the Code of Civil Procedure.

The plaintiff as proprietor sued to recover from in the defendants a 4-annas share in Mauza Baghore. The defendants raised'' various defences and amongst other things Contended that they had a mukarrari. interest of the 4-annas share of which the plaintiff claimed possession. They further raised questions of limitation.

The trial Court appears to have found as far as I can follow the judgment, that the defendants were not mukarraridars and that the suit was not barred by limitation. Upon the latter point, however, the findings of the trial Court are some what obscure. After saying that the suit was not barred by limitation, the learned Judge says: "The plaintiff is not anxious to evict the defendants and has conceded the long possession of the defendants and is quite willing to treat them as tenants. He has not shown that he is within time for the purpose of evicting the defendants as for that purpose he must bring himsel within the special provisions of the law Then again he says; "The plaintiff doe'' not want sir possession and has not shown himself to be within time for that purpose, but he wants that a mukarrari jama be fixed permanently and claims that his suit is u/s 157 of the Bengal Tenancy Act." In the result the Subordinate Judge assessed a rent of Rs. 583 as the fair mukarrari permanent rent for the 4 annas share in suit payable since 1326 Fasli.

When the case came on appeal to the High Court, the High Court also decided that the defendants had not proved their mukarrari interest and, in the circumstances, they set aside that part of the decisions which had assessed a fair rent to be paid by the defendants and awarded khas possession to the plaintiff.

From that decision the defendants now seek to appeal to His Majesty in Council.

It is said in the first place, that the decision is not one of reversal but a decision of affirmance. It is quite true that in some respects the decision of the High Court affirmed the decision of the trial Court. Both judgments find that the defendants were not mukarraridars, and it is further contended on behalf of the respondents that both judgments find that the suit is not barred by limitation and, therefore, that the only question which can remain for further discussion over and above the points determined by the concurrent findings of fact, is the question whether any amount is to be paid, by the defendants. I do not however, regard the matter in this light. From the somewhat obscure judgment of the trial Court it would appear that the learned Judge arrived at the conclusion that the claim of the plaintiff to get khas possession of the property was barred by some law of limitation and that could only be on the ground that the defendants, although not mukarraridars, had been in possession of the land for a number of years, over 12 years, before the institution of the suit and, indeed, that appears to me to be the ground of his judgment. If, on the other hand, there is no question about the matter and it was to be held that the suit was not barred by limitation, then clearly the plaintiff would be entitled to possession and the assessment of rent would be a matter outside the province of the trial Court. Therefore, the defendants in this case are entitled to say that the decision is in the result one reversing that of the trial Court. The defendants are entitled to seek the opinion of the higher tribunal without showing that there is any substantial question of law involved in the'' appeal.

Then comes the question of the value of the suit. The actual value of the land was assessed by the plaintiff in his plaint at the sum of Rs. 5,500. He also claimed mesne profits for three'' years prior to the institution of the suit amounting to Rs. 1,955. He further asked in Clause (1) of para. 15 of his plaint that he should be awarded in addition future mesne profits up to the date of recovery of possession from the defendants. This Court in the case of I mamuddin Khan v. Kishundeo Narain Mahatha 63 lnd.Cas. 492 : 6 P.L.J. 246 : 2 P.L.t. 675, as well as in an earlier case [Mahabir Prasad Singh v. Anup Naraian Singh 46 Ind. Cas. 137 : 3 P.L.J. 377 : (1918) Pat. 246 : 5 P.L.W. 327, has held following the decision of the Calcutta High Court in Basanta Kumar Roy v. Secretary of State 6 Ind. Cas. 792 : 14 C.W. N. 872. that in arriving at the value of the suit for the purposes of Section 110 of the CPC the Court is entitled to take into account not merely the mesne profits claimed up to the date of the suit but also the future mesne profits and in any case up to the date of the decree of the trial Court. Now following that principle it would appear that the future mesne profits amount to something approaching Rs. 4,000 up to the time of the appeal Court''s decree and, in these circumstances, the total value of the subject-matter of the suit comes to over Rs. 10,000. It was argued that the value of the subject-matter in appeal to his Majesty in Council was not that amount but only that amount which could be assessed upon the difference between the rent which the trial Court had assessed and the right to khas possession. How this value is to be arrived at I am not very sure; but in any case I do not think that this is the proper method of calculation, for if the defendants are entitled to appeal at all they are entitled to appeal on the ground that the trial Court found that the plaintiff could not get khas possession whereas the High Court has held that he can. The value, therefore, seems to me to be the value of the property which is the subject-matter of the dispute plus mesne profits claimed.

The plaintiff is entitled to his costs. Hearing fee five gold mohurs.

Mullik,J.

I agree.