ORDER : 1. An interesting question is raised in this appeal. This appeal is by the plaintiff who lost in both the courts below. The suit was decided by the Subordinate Judge, Sasaram. The suit was filed in the year 1960. The valuation of the suit was at Rs. 16,500/-. The learned Subordinate Judge vide his JUDGMENT : dated 13th September, 1973 dismissed the suit. The suit was filed for declaration of title, recovery of possession and partition of the plaintiff's 1/3rd share in respect of 5.16 acres of land described in schedule of the plaint and the case of the appellant was disbelieved. 2. The valuation of the suit being Rs.16,500/- the appeal against the decree of the Subordinate Judge should have been filed befoe this court. Unfortunately plaintiff-appellant preferred appeal before the District Judge, Rohtas. It escaped the notice of saristedar that appeal was not maintainable as the valuation was beyond the pecuniary jurisdiction of the District Judge. However, the appeal was decided on merit by the District Judge vide the JUDGMENT : dated 30th April, 1981 in Title Appeal No. 4 of 1975. The learned District Judge after consideration of the evidence and record dismissed the appeal ex-parte. The learned Additional Sessions Judge in paragraph no. 9 of his JUDGMENT : has observed as follows : "In view of all these documentary evidence along with the oral evidence adduced on behalf of the contesting defendants, one is led to believe that at the time of C.S. operation the suit lands were in possession of Gaya and Hiraman and they along with their descendants continued to be in possession till they sold the lands to some of the defendants who came in possession thereafter. Dipan or his descendants had no manner of concern with any of the lands and they were never in possession over any of these lands. Plaintiff's case of possession and dispossession are unreal and against facts. I agree with the finding of the court below that the plaintiffs have had no right, title or interest in the lands in question and are not entitled to a decree for partition. I find little justification to interfere with the impugned JUDGMENT : and decree of the learned court below." 3. Both the courts below held against the appellant on facts. I find little justification to interfere with the impugned JUDGMENT : and decree of the learned court below." 3. Both the courts below held against the appellant on facts. This appeal was liable to be dismissed as finding of facts can not be reviewed by this Court in second appeal. 4. It was argued that the JUDGMENT : of the appellate court was a nullity and this appeal should be decided as a regular First Appeal. In other words, this court should review the evidence. 5. The following substantial questions of law was raised in this appeal while admitting the appeal : (a) Whether in view of the value of the suit as disclosed in the plaint itself, the appeal in the lower appellate court was maintainable and if not, whether the appeal ought to have been dismissed without consideration of the merits of the case ? (b) Whether in view of the decision in the A.I.R 1949 Patna 278, the appellant is entitled to press this second appeal on the ground that the lower appellate court committed an error of law in deciding the appeal ? (c) Whether in view of the findings of the lower appellate court in paragraph nos. 6 and 7, the suit could have been dismissed without a finding of ouster? 6. In Ramdeo Singh vs. Raj Narain Singh (A.I.R. 1949 Patna 278) the plaintiff had valued the suit at Rs. 4000/-. The defendants did not challenge the valuation of the suit in w.s. but added that, on his own showing, the plaintiff should have paid court fee on fifteen thousand rupees. No issue was raised as regards the valuation of the suit. The trial court decreed the suit. The defendant went up in appeal to the District Judge. The memorandum of appeal was valued at Rs. 4000/- and court fee paid on that valuation. The only point raised for determination by that court was as regards the merits of the decision of the trial court. There was no reference in the memorandum of appeal to any question of under valuation of the suit or non-payment of court fees on a proper valuation. The District Judge came to the same conclusion as the court of first instance, and dismissed the appeal. The defendants preferred second appeal before the High Court from the concurrent findings of the court below. The District Judge came to the same conclusion as the court of first instance, and dismissed the appeal. The defendants preferred second appeal before the High Court from the concurrent findings of the court below. In this court also second appeal was valued at Rs. 4000/-. In this court no question of jurisdiction or under valuation of the suit was raised. The stamp reporter, however, on examination of the record reported to the Taxing Officer of this Court that the proper valuation of the suit and appeal to the lower appellate court, and consequently of the second appeal to this court, was in each case Rs. 15,000/- and that, on that basis, the plaint was insufficiently stamped by Rs. 750/- which must be made by the plaintiffs, and the same amount was payable by the defendants-appellants on the memorandum of appeal to the lower appellate court and on that to this court in second appeal. The defendants-appellants called upon to make good the deficit of Rs. 750/- on the memorandum of appeal. The appellants contended that on the valuation as found by the learned Registrar as the Taxing officer of the court, the memorandum of appeal to this court should be treated as one in a first appeal. The appellants relied upon the precedents of this court. The soundness of the precedent was examined by the Full Bench. After review of all the decisions on this point of various High Courts in the light of the provision contained in section 11 of the Suits Valuation Act, 1857 it was held by full bench, the JUDGMENT : of court having no pecuniary jurisdiction is not a nullity, if no prejudice is caused in disposal of an appeal by the District Judge having no pecuniary jurisdiction, instead of High Court. It was held second appeal cannot be treated automatically as first appeal. It was further held that simply because the lower appellate court had no jurisdiction over the appeal, which should have been heard as a first appeal in the High Court, would not by itself amount to prejudice in the disposal of the case on merits. It was held that established practice of this court to treat the second appeal as a first appeal is not in accordance with the provisions of the Suits Valuation Act or the Court Fees Act. 7. It was held that established practice of this court to treat the second appeal as a first appeal is not in accordance with the provisions of the Suits Valuation Act or the Court Fees Act. 7. In Kiran Singh vs. Chaman Paswan (A.I.R. 1954 S.C. 340) the Full Bench decision of this Court in Ramdeo's Case (supra) was approved. Venkatarama Aiyer, J, speaking for the court observed in paragraph no. 14 as follows : "That brings us to the question as to what is meant by "prejudice" in section 11 of the Suits Valuation Act. Does it include errors in findings on questions of fact in issue between the parties. If it does, then it will be obligatory on the court hearing the second appeal to examine the evidence in full and decide whether the conclusion reached by the lower appellate court are right. If it agrees with those findings, then it will reverse it. That means that the court of second appeal is virtually in the position of a court of first appeal. The language of section 11 of the Suits Valuation Act is plainly against such a view. It provides that over valuation or under valuation must have prejudicially affected the disposal of the case on the merits. The prejudice on the merits must be directly attributable to over valuation or under valuation and an error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused by over valuation or under valuation. Mere errors in the conclusions on the points for determination would therefore be clearly precluded by the language of the section. It must further be noted that there is no provision in the Civil Procedure Code, which authorises a court of second appeal to go into questions of fact on which the lower appellate court has recorded findings and to reverse them. Section 103 was relied on in A.I.R. 1949 Pat 278 (FB) (A) as conferring such a power. It must further be noted that there is no provision in the Civil Procedure Code, which authorises a court of second appeal to go into questions of fact on which the lower appellate court has recorded findings and to reverse them. Section 103 was relied on in A.I.R. 1949 Pat 278 (FB) (A) as conferring such a power. But the section applies only when the lower appellate court has failed to record a finding on any issue, or when there has been irregularities or defects such as fall under section 100 C.P.C. If these conditions exist, the JUDGMENT : under appeal is liable to be set aside in the exercise of the normal powers of a court of second appeal without resort to section 11 of the Suits Valuation Act. If they do not exist, there is no other power under the Civil Procedure Code authorising the court of second appeal to set aside findings of fact and to re hear the appeal itself on those questions. We must accordingly hold that an appellate court has no power under section 11 of the Suits Valuation Act to consider whether the findings of fact recorded by the lower appellate court are correct, and that error in those findings cannot be held to be prejudice within the meaning of the section." 7. The Supreme Court has observed that it would be an unfortunate state of law, if the plaintiffs who initiated proceedings in a court of their own choice could subsequently turn round and question its jurisdiction on the ground of an error in valuation which was their own. 8. If the law were that the decree of a court which would have had no jurisdiction over the suit or appeal but for the over valuation or under valuation should be treated as a nullity, then of course, they would not be estopped from setting up want of jurisdiction in the court by the fact of their having themselves invoked it. That, however, is not the position under section 11 of the Suits Valuation Act. Why then should the plaintiffs be allowed to resile from the position taken up by them to the prejudice of their opponents, who had acquiesced therein ? 9. In this case the plaintiff was fully aware that the District Judge has no pecuniary jurisdiction to entertain the appeal, preferred the appeal before the District Judge. Why then should the plaintiffs be allowed to resile from the position taken up by them to the prejudice of their opponents, who had acquiesced therein ? 9. In this case the plaintiff was fully aware that the District Judge has no pecuniary jurisdiction to entertain the appeal, preferred the appeal before the District Judge. The stamp reporter unfortunately did not notice this fact. The plaintiff therefore, in view of the decision of the Supreme Court cannot re open the question of fact decided against them, by both the courts below. 10. Shri Jagidsh Pandey, learned counsel for the appellants, however, placed before me entire evidence and made efforts to convince me that the findings of the court below recorded in paragraph no. 9 of the JUDGMENT : was erroneous. To satisfy myself I have examined the evidence and found that the findings of the courts below are fully supported by the evidence adduced by the defendants. If this appeal was treated as a first appeal the result would have been the same. The suit filed by the appellants was totally misconceived. 11. In the result, this appeal fails and is dismissed. In the facts and circumstances of the case parties to their own costs.