Arjun Ram Kesari v. Sheo Charan Ram — 1976 DIGILAW 90 (PAT)

Judgment HARI LAL AGRAWAL, J. 1. This application by defendant No. 3, the appellant in the court of appeal below is directed against an order of that court returning the memorandum of the title appeal on the ground that it had no pecuniary jurisdiction over the same. The facts of the case are very complex and in order to ascertain the same I had to look into the original records and the various interlocutory orders passed in the case on different occasions, some of which were brought to this court as well. 2. The suit was originally filed by Yogmaya Devi in the court of the Munsif, Giridih, in the year 1963, and on her death, her heirs and legal representatives were substituted, who are opposite party Nos. 7 to 15. The suit was filed against Narsingh Halwai and his son-in-law Bhuneshwar Halwai for a declaration of title and recovery of possession with respect to a house situated in the town of Giridih. The value of the suit originally given was Rs. 2,000.00, but subsequently the same was raised from Rs. 2,000.00 to Rs. 5,100.00 and the plaint was returned by the Munsif for presentation before the proper court and, thereafter, it was filed in the court of the subordinate Judge, Hazaribagh, on 18-11-1965. On the death of defendant No. 1, his daughter Shrimati Rekhamani Devi (Opposite Party No. 16) was substituted. On 11-9-1967, a compromise petition was filed in the suit and thereby the share of the plaintiffs was determined to the extent of -/11/- annas and that of the defendants to the extent of -/5/- annas in the disputed house. Earlier to that, by an agreement for sale dated 21-8-1967, the plaintiffs and the aforesaid defendants Nos. 1 and 2 are said to have agreed to sell their respective shares to Shrimati Uma Devi alias Parwati Devi, wife of Sheo Charan Ram (Opposite Party No. 1 and Shrimati Naurangi Devi (Opposite Party No. 6) wife of Banshi Ram for Rs. 13,500.00 and Rs. 6,500.00 respectively, thereby fixing the total valuation of the whole house at Rs. 20,000.00. The original plaintiffs in pursuance of this agreement also executed a sale deed on 24-11-1967, but the defendants did not; rather defendant No. 1 filed an objection to the recording of the compromise on various grounds. 13,500.00 and Rs. 6,500.00 respectively, thereby fixing the total valuation of the whole house at Rs. 20,000.00. The original plaintiffs in pursuance of this agreement also executed a sale deed on 24-11-1967, but the defendants did not; rather defendant No. 1 filed an objection to the recording of the compromise on various grounds. An elaborate enquiry was held by the trial court and ultimately by its order dated 12-2-1969, an order for recording of the compromise was passed. The plaint was thereafter amended and the aforesaid purchasers got themselves substituted as plaintiffs and prayed for a relief for specific performance of the contract for sale against defendants Nos. 1 and 2 to the extent of their -/5/- annas interest in the suit house. 3. In the meantime a further development took place. The house in question was sold in execution of a decree obtained by the Giridih Municipality for arrears of taxes and was purchased by the petitioner for Rs. 1,050.00 only on 16-1-1971. The plaint was again amended and the petitioner was impleaded as defendant No. 3 and a further relief was brought in the plaint for setting aside the aforesaid court sale. The value of the suit was fixed at Rs. 7,800.00 in the following manner: (i) Value of -/5/- annas interest in the house according to the agreement for sale .................. Rs. 6,500.00 (ii) Value of the relief for setting aside the court sale ......... Rs. 1,050.00 (iii) Value of temporary injunction ..................... Rs. 250.00 All the aforesaid amendments obviously and practically resulted in substitution of a different set of plaintiffs for different reliefs and causes of action entirely different than that for which the original plaintiff had instituted the suit. As the matter is still sub judice, I refrain from making any observation so that it may not cause prejudice to either party. 4. Against the order dated 12-2-1969 of the trial court ordering for recording the compromise, the defendant No. 1 filed a miscellaneous appeal in the Court of the District Judge of Hazaribagh challenging the order on various grounds. One of the grounds urged there was that the original value of the suit being Rupees 5,100.00 and the subsequent value of the suit property having been fixed at Rupees 20,000.00, the plaint should have been amended and court-fee paid thereon, before the compromise could be ordered to be recorded. One of the grounds urged there was that the original value of the suit being Rupees 5,100.00 and the subsequent value of the suit property having been fixed at Rupees 20,000.00, the plaint should have been amended and court-fee paid thereon, before the compromise could be ordered to be recorded. The learned District Judge answered this question as follows: "That property was valued at Rupees 20,000.00 not for the purposes of the suit, but for the purpose of sale and I do not think that that amount can be taken as the value of the suit................" Civil Revision No, 842 of 1969 was filed in this court against the appellate order and ultimately it failed. 5 The suit was ultimately decreed in full by the trial court holding that the plaintiffs were entitled to a decree for specific performance of a contract against defendants Nos. 1 and 2 to the extent of their -/5/- annas share and also that the auction sale of the house in execution of the decree of the Giridih Municipality was fraudulent and defendant No. 3 did not acquire any valid title by his purchase and the right of the plaintiffs and defendants Nos. 1 and 2 was not affected or impaired by reason of that auction sale. 6. Defendant No. 3 filed an appeal in the Court of the District Judge of Hazaribagh valuing the appeal at Rupees 7800.00 according to the valuation of the suit. An objection was raised by the seristedar to the valuation and the opinion of the Government pleader was taken in the matter, and by his order dated 18-11-1973, the learned District Judge accepted the valuation as correct. After their appearance, the plaintiffs-opposite party made an application challenging the jurisdiction of the court of appeal below on the plea that the value of the appeal should be Rs. 20,000.00 and the learned Additional District Judge by the impugned order has upheld their objection on the view that in view of the amendment brought in, the value of the disputed house was certainly Rs. 20,000.00 and, therefore, he had no jurisdiction over the appeal. He rejected the plea of the petitioner that the appeal must be valued on the valuation of the suit itself and until the valuation of the suit was amended, he could not be directed to raise the valuation of the appeal. 20,000.00 and, therefore, he had no jurisdiction over the appeal. He rejected the plea of the petitioner that the appeal must be valued on the valuation of the suit itself and until the valuation of the suit was amended, he could not be directed to raise the valuation of the appeal. Accordingly, the defendant-appellant in the court below has filed the present application. 7. Mr. Thakur Prasad appearing for the petitioner contended that the plaintiffs having themselves put the value of the suit at Rs. 7,800.00, they could not be heard to challenge the correctness of the said valuation and that the learned District Judge having once found the value of the appeal to be correct, the matter could not be re-opened. The point raised by Mr. Thakur Prasad has got no substance and must be rejected. But nonetheless, I would set aside the order of the Court of appeal below on entirely different grounds. 8. Mr. Thakur Prasad placed reliance upon a decision of the Supreme Court in the case of Kiran Singh V/s. Chaman Paswan ( AIR 1954 SC 340 ) as also a decision of this court in the case of Rajaram Sah V/s. Narad Thakur, ( AIR 1960 Pat 136 ). Both these cases are based on Sec.11 of the Suits Valuation Act, 1887 , Sec.11 provides that the jurisdiction of the court of first instance in respect of a suit or of the lower appellate court in respect of an appeal would not be challenged by reason of the overvaluation or under-valuation unless - (a) the objection was taken in the court of first instance at or before the hearing, or in the lower appellate court in the memorandum of appeal to that court, or (b) that has prejudicially affected the disposal of the suit or appeal on its merits. The second contention of Mr. Thakur Prasad that the valuation once having been determined by the District Judge could not be re-opened on the appearance of the respondents, therefore, must be rejected on the face of it as the respondents at that stage had not appeared and it was their right to agitate the question on their appearance. 9. The principles contained in Sec.11 at the Suits Valuation Act have no application at the present stage. 9. The principles contained in Sec.11 at the Suits Valuation Act have no application at the present stage. If at all, that stage might be when the court of appeal below would have proceeded to dispose of the appeal, and if a further appeal would have been taken to this court against that decision, a question might arise as to whether the decree of the court of appeal below was a nullity on account of the lack of jurisdiction, that court being "coram non-judices Both the above authorities, therefore, simply enunciate the above proposition and discuss the principles contained under Sec.11 of the Suits Valuation Act. 10. The matter, however, can be examined from an entirely different angle The suit as originally framed by the original plaintiffs was for declaration of title and recovery of possession and was valued at Rupees 5,100.00 only. Later on when the plaint was amended and the original plaintiffs practically walked out of the suit on executing a sale deed in pursuance of a compromise arrived at between them and the original defendants Nos. 1 and 2 on executing a sale deed to the extent of their -/11/- annas share in the house, the scope of the suit, as already seen, was entirely changed and it was confined to the specific performance of the remaining part of the contract for sale, jointly entered into by the original plaintiffs and defendants Nos. 1 and 2 to the extent of the remain-Ing -/5/- annas share in the house in question, the consideration of which was fixed by agreement of the parties at Rs. 6,500.00. The learned Additional District Judge has referred to some of the statements made in paragraph 24 of the plaint where the value of the suit house was said to be mentioned even much higher by the defendant, to derive support for his order. The question, however, remains as to whether in the absence of any admissible materials on the record, could he take into account the value of the house in question which was raised to 20,000.00 by a compromise entered into between the parties during the pendency of the suit. The original plaintiffs had valued it at Rs. 5,100.00 only when the suit was filed in 1965. The compromise petition and the agreement for sale are two years later and the auction sale was still later in the year 1971. The original plaintiffs had valued it at Rs. 5,100.00 only when the suit was filed in 1965. The compromise petition and the agreement for sale are two years later and the auction sale was still later in the year 1971. The valuation of the house fixed at Rs. 20,000.00 was as a result of compromise during the pendency of the suit and that could not retrospectively be applied from the date of the presentation of the plaint, as the value of the suit. 11. There is yet another aspect of the matter. After the amendment, the scope of the suit remained for specific performance of the contract for sale to the extent of -/5/- annas share only, the value of which according to the own case of the substituted plaintiffs was Rs. 6,500.00 and the value in the court auction sale was Rs. 1050.00. There seems to be great force in the observation of the learned District Judge in his order in the aforesaid miscellaneous appeal giving rise to Civil Revision No. 842 of 1969, already referred to earlier, that the said amount of Rs. 20,000.00 could not be taken as the value of the suit. It is, no doubt, true that this court did not got into this question in the aforesaid civil Revision, but there is no observation in the least which detracts the value of the observation of the court of appeal below in any way. The fact that the auction sale In favour of the petitioner has also been set aside, which matter is also for consideration in the court of appeal below, nonetheless, the plaintiffs themselves having valued the relief that they have secured from the trial court at Rs. 1050.00 the amount for which the property was sold in execution proceeding, cannot be now permitted to turn round and challenge the correctness of the value put by themselves. The principles contained in the doctrine of estoppel although having no direct application must apply against them. 12. For the reasons discussed above, this application must be allowed and the impugned order set aside. I would, accordingly, direct the learned Additional District Judge to proceed to dispose of the appeal on its merits and in accordance with law. In the circumstances of the case, however, there shall be no order as to costs.