GOPAL CHANDRA DAW v. BIMALABALA HAZRA — 1972 DIGILAW 171 (CAL)

( 1 ) THIS is an appeal by the plaintiffs against the judgment and decree of reversal dismissing the suit. ( 2 ) THE suit was instituted on the following allegations: the plaintiffs had been the owners in possession of the suit lands on partition with their company-sharers and the said lands measuring 8. 86 acres are situate in mouja Tagra Police Station, Tarakeswar, District Hooghly. The predecessor of the respondent Nabani Mohun Hazra started proceeding in the Court to the Magistrate at Serampore on June 20, 1950 under section 144 of the Code of Criminal Procedure wherein he claimed tenancy right in suit lands since 1350 B. S. at a jama of Rs. 50/- and also possession on that basis. In the said proceeding, the plaintiffs denied the allegations as untrue and fraudulent. The learned Magistrate on trial on evidence before him under section 145 found possession of the suit lands in favour of the defendant and passed appropriate orders on October 17, 1951 holding that the defendant was in possession of the suit lands on the basis of his settlement. The plaintiffs contended that the findings of the learned Magistrate were wrong and unwarranted by evidence. Accordingly the plaintiffs instituted the suit for a declaration of their title to the suit lands on the findings that the defendant never had any tenancy right therein and for appropriate orders restoring possession thereof to them after setting aside the order of the learned Magistrate. ( 3 ) THE suit was contested by the defendant who filed a written statement contending inter alia that the plaintiff's interest had vested in the State and they had no subsisting title to the suit lands and further that the suit was not properly valued, the valuation thereof being about Rs. 15,000/ -. The plaintiff's possession in the suit lands were denied and it was alleged that the defendant had been possession the suit lands as tenant under the plaintiffs. Further, the defendant had acquired tenancy right by continuous possession for over twelve years and the plaintiffs were not entitled to decree for khas possession. It was further contended that the suit was barred by limitation. Further, the defendant had acquired tenancy right by continuous possession for over twelve years and the plaintiffs were not entitled to decree for khas possession. It was further contended that the suit was barred by limitation. ( 4 ) THE learned Subordinate Judge on a trial on evidence before him found on the materials on record that the plaintiffs were 16 annas owners of the suit lands and the defendant never had any tenancy right as claimed. It was also held that the suit was not barred by limitation. The suit was accordingly decreed on contest with costs. On Appeal by the respondent the Appellate Court found that the suit was barred by limitation and on that finding it did not think necessary to consider the other questions involved in the appeal. The appeal was allowed and the judgment and decree order appeal were set aside and the suit was dismissed. The present appeal is against this decision by the plaintiffs. ( 5 ) BEFORE we proceed to examine the respective contentions of the parties it will be proper to have a correct picture on the relevant facts about the course of the suit since its institution in respect whereof both Courts seem to have fallen in errors. The order of the learned Magistrate was passed on October 17, 1951 and under Article 47 of the Indian Limitation Act, 1908 a limitation of three years from the date of final order has been provided for the recovery of the property covered by such order. The said suit registered as Title Suit No. 146 of 1954 was filed on February 23, 1954 in the Court of the Munsif at Serampore which undoubtedly had the territorial jurisdiction at the time. After the merger of Chandernagore into the State of West Bengal on October 2, 1954 there was an adjustment of territorial jurisdiction of the Courts at Serampore and Chandernagore and the area within Tarakeswar P. S. were brought under the jurisdiction of the Munsif's Court at Chandernagore. The suit was accordingly transferred under orders of the District Judge to the Court of the second Munsif of Chandernagore and was received by the transferee Court on November 2, 1954 being registered as Title Suit No. 114 of 1954. This will appear from the certified copy of the order sheet produced by the appellant at the hearing about which there is now no dispute. This will appear from the certified copy of the order sheet produced by the appellant at the hearing about which there is now no dispute. ( 6 ) THE suit was valued at Rs. 2000/- and the learned Second Munsif appointed a Commissioner for ascertaining the valuation of the suit property. The Commissioner valued thesuit at Rs. 3481/ -. By order dated March 30, 1955, the learned Munsif Sri K. K. Maitra directed that the plaint should be returned to the plaintiffs for presentation in proper Court. The plaint thereafter as per record, was returned on January 19, 1956 for presentation in proper Court. The relevant order is as follows: ? plaint filed on 23. 2. 54. Returned on 19. 1. 56 for presentation to the proper Court?. Sd/- K. K. Maitra, munsif, 2nd Court, chandernagore, 19. 1. 56. On the same day the plaint was filed in the Court of the Munsif and was registered as Title Suit No. 6 of 1956. On February 11, 1956, the suit being thereafter valued at Rs. 3500/- was transferred to the local First Munsif's Court for trial. The relevant order is set out below: ?present Shri Chinmoy Samaddar, Munsif deficit Court, fees of Rs. 1128/- filed already but the Court is empowered to try suits under ordinary procedure upto the value of Rs. 2000/- only and as such, the suit being valued at Rs. 3500/- is beyond the pecuniary jurisdiction of this Court and transferred to the local 1st Munsif's Court for tiral. C. Sammaddar? on transfer to the Court of the First Munsif, Chandernagore, on February 14, 1956, the suit was registered as Title Suit No. 29 of 1956. Thereafter the value of the suit was raised to Rs. 8501/- which was beyond the jurisdiction of the said Court and the plaint was accordingly returned on February 7, 1958. The relevant order of the learned Munsif is as follows: -?by order No. 46 dated 7. 2. 58, the plaint has been order to be returned to the filing pleader for presentation to the proper Court, as the value of the suit has been raised to Rs. 8501/- which is beyond the pecuniary jurisdiction of this Court. The plaint was filed in this Court on 23. 2. 54 and is returned to-day. Sd/- D. C. Chakrabarti, munsif, 1st Court, chandernagore, 7. 2. 8501/- which is beyond the pecuniary jurisdiction of this Court. The plaint was filed in this Court on 23. 2. 54 and is returned to-day. Sd/- D. C. Chakrabarti, munsif, 1st Court, chandernagore, 7. 2. 58 on the same date the plaint was filed in the Court of the Subordinate Judge, First Court, Hooghly and registered as Title Suit No. 9 of 1958. ( 7 ) THE suit, as we have sen, was ultimately tried in the Court of the Subordinate Judge, First Court, Hooghly. The plaint was filed in that Court on February 7, 1958 while the limitation for filing the suit expired on October 17, 1954. The plaintiffs have therefore to establish that they were prosecuting with due diligence another civil proceeding in the mean time in a different Court upon the same cause of action. Apart from the question of valuation of the suit with which we shall deal later, it was submitted that the plaint was presented to the Court of the Munsif, Chandernagore on January 19, 1956, though the order for returning the plaint was passed on March 30, 1955 by Shri K. K. Maitra, Munsif Second Court (Exercise. 3 ). Mr. Ranjit Kumar Banerjee, learned Advocate appearing for the defendant-respondent, on authority of judicial decisions, contended that onus to explain the delay in filing the plaint is to be discharged by the plaintiffs but they have failed to do. Mr. Apurbadhan Mukherjee, learned Advocate for the appellants contended that the plaint all through remained in Court and was never taken away by the plaintiffs, as would appear from records. ( 8 ) WE have seen that the plaint was transferred from the Serampore Court to the Court of the Munsif, Second Court, Chandernagore on November 2, 1954. The suit was originally valued at Rs. 2,000/- and after the first Commissioner's report, the suit was valued at Rs. 3,500/ -. By order of Shri C. Samaddar, dated February 11, 1956, the suit was transferred to the local First Munsiff's Court. The suit was accordingly received on February 14, 1956 on transfer by the Munsif, First Court numbered as Title Suit No. 29 of 1956 with the following order : ?received by transfer from the local Munisf, Second Court, Register?. By order of Shri C. Samaddar, dated February 11, 1956, the suit was transferred to the local First Munsiff's Court. The suit was accordingly received on February 14, 1956 on transfer by the Munsif, First Court numbered as Title Suit No. 29 of 1956 with the following order : ?received by transfer from the local Munisf, Second Court, Register?. In this state of affairs it seems unlikely that the plaint which was already in the Second Munsifs Court since November 2, 1954 should be presented over again to the same Court on January 19, 1956 as would appear from the filing stamp impressed on all pages of the plaint which is to the following effect: ?the Munsifs 2nd Court Chandernagore filed on January 19, 1956. ? It accordingly appears that the order of January 19, 1956, recording the presentation of the plaint to the Munsif's Court on January 19, 1956, renumbering the suit against as Title Suit No. 6 of 1956 as also the stamp impressed on the plaint are all ministerial errors with Courts order superimposed. The real position, at it appears, was that the plaint was and continued to be in the Court of the Munsif, Second Court, from November 2, 1954 till the plaint was transferred on February 11, 1956 by Sri C. Samaddar to the local First Munsif's Court under order as stated above. That there was error is also supported by the fact that Sri K. K. Maitra as Munsif, Second Court was returning the plaint on January 19, 1956 and on the same day he himself was receiving back the plaint on alleged further presentation as the Munsif. Accordingly it could not be said that there has been any delay in ?re-presenting? the plaint on January 19, 1956 as contended by the defendant as there was no occasion for the same. ( 9 ) MR. Banerjee further contended that to obtain the benefit of section 14 of the Limitation Act, the plaintiffs have to establish that hey had been prosecuting with due diligence and in good faith another civil proceeding. It has been held in judicial decisions that the test of good faith is the real and bonafide belief of the plaintiff that he could institute the proceedings in the Court where he first instituted it. It has been held in judicial decisions that the test of good faith is the real and bonafide belief of the plaintiff that he could institute the proceedings in the Court where he first instituted it. Fraudulently undervaluing a suit and instituting it in another Court which throw it out for want of pecuniary jurisdiction is not prosecuting a suit in good faith. Relying on these principles Mr. Banerjee has contained that the plaintiffs ultimately accepted the valuation of the Second Commissioner who valued the suit lands at Rs. 8501/- while the suit was first filed at valuation of Rs. 200/- which was assessed by the plaintiffs as the valuation of the suit lands. This gross under valuation fraudulently done by the plaintiffs, it is contended proves that the plaintiffs were not prosecuting the suit in good faith, remembering further that on the basis of the report of the first Commissioner the suit was valued at Rs. 3500/ -. ( 10 ) EVEN though the plaintiffs have accepted the valuation made by the Second Commissioner it cannot be said merely on that ground that the plaintiffs deliberately undervalue the suit. It does not appear that this commissioner's report sets out the valuation of the suit lands as on the date of the suit which is the valuation relevant in law. On the other hand the Commissioner appears to have taken in consideration even documents of title of or period from 1954 to 1957 in arriving at the valuation on the suit lands. For these reasons we are unable to hold that the suit lands were of such valuation at the date of the suit as found by the said Commissioner though without reference to the valued the suit lands at Rs. 3481/- while in the order of March 30, 1955, it is stated that according to the defendant the value of the reliefs would not be less than Rs. 5000/ -. It would be obvious that the plaintiff valued the suit lands at Rs. 2000/- on the date of the suit while the First Commissioner, a senior member of the bar on personal inspection of the lands valued them at about Rs. 3481/ -. Accordingly it cannot be said, with such difference in valuation, that the plaintiff's valuation at Rs. It would be obvious that the plaintiff valued the suit lands at Rs. 2000/- on the date of the suit while the First Commissioner, a senior member of the bar on personal inspection of the lands valued them at about Rs. 3481/ -. Accordingly it cannot be said, with such difference in valuation, that the plaintiff's valuation at Rs. 2000/- was without due care or attention or was gross or reckless under statement of the value of the property as found by the first Appellate Court. For these reasons we are of opinion that the original valuation given by the plaintiff is not such as to disentitle them of the protection or ambit of section 14 of the Limitation Act. It could not also be said in the prevailing state of affairs that such valuation was given without due care or attention as the plaintiffs believed that the said valuation represented the value of the properties on the date of the suit. ( 11 ) IT has been further contended that the finding that the valuation of the suit was an act without due care and attention on the part of the plaintiffs is a finding of fact and not liable to be interfered with this Court in second appeal. Obviously there can be no dispute over the proposition but when the judgment under appeal based its conclusion on the Second Commissioner's Report which as we have seen is not a proper guide for valuation of the suit lands at the date of institution of the suit, we find no legal impediment in our interfering with the conclusion on the point arrived at by the Appellate Court. ( 12 ) FOR these reasons we held that the suit is not barred by limitation. The appeal accordingly is allowed with costs and the judgment and decree under appeal are set aside. The case will now go to the first Appellate Court for its consideration and disposal in accordance with law on the other points not considered in the judgment under appeal. Let the records go down as early as possible. Dutt, J. : I agree. Appeal allowed.