# Manila[ Mohanlai Shah arid Others v. Sardar Sayed Ahmed Sajed Mahmadand ·Another

- **Citation:** [1955] 1 S.C.R. 117
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil Appeal No. 14 of 1953
- **Bench:** MuKHERJEA, VIVIAN BosE, GttuLAM Ht\SAN ·, Venk~Tarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manila-mohanlai-shah-arid-others-v-sardar-sayed-ahmed-sajed-mahmadand-another-325
- **Pages:** 15

## Headnote

Suits Valuation Act (Vll of 1887), s, 11-Appeal under-valued
and presented to a Court of inferior jurisdiction-Whether a decree
passed by it on the merits is a nullity-Whether mere
change of
form or error in a decision on the merits, prejudice tuithin the meaning of section 11 of the Suits Valuation Act-Whether a party who
invokes a jurisdiction of a Court can complain of prejudice on the
ground of over-valuation or under-valuation.
The policy underlying section ll of the Suits
Valuation Act,
as also of sections 21 and 99 of the Code of Civil Procedure, is that
when a case has been tried by a Court on the merits and judgment
rendered, it sh01,1ld not be liable to be reversed purely on technical
grounds, unless a failure of Justice has resulted. The policy of the
Legislature has been
to treat
objections as to jurisdiction, both
territorial and pecuniary, as technical
and not open to
consideration by an appellate Court, unless there has been prejudice on the
merits.
Mere change of form is not prejudice within
the
meaning of
section 11 of the Suits Valuation Act ; nor a mere error in the
decision on the merits of the case.
It must be one directly attributable to over-valuation or under-valuation.
Whether there has been prejudice or not is a matter to he
determined on the facts of each case. The jurisdiction under se<:-
tion 11 is an equitable one to be exercised, ·when there has
been
an erroneous assumption of jurisdiction by a Subordinate Court as
a result of over-valuation or under-valuation and
a
consequential
failure of justice. It is
neither possible, nor desirable to define
tiUCh jurisdiction closely or confine it within stated bounds,
1954
Manila[ Mohanlai
Shah arid Others
v.
Sardar Sayed
Ahmed Sajed
Mahmadand
·Another.
1954
April 14.
'954
Kiran Singh and
OthetS . .
.
v.
Chaman Paswan
and (!~hers.
Vtnkatarama
Ayyar.].
118
SUPREME COURT REPORTS
[1955]
A party who has resorted to :l forum. of his .own choice o~ his
own valuation cannot himself be heard to complain of any
pre~
ju dice.
Ramdeo Singh v. Raj Narain (I.L.R. 27 Patna 109) ; Rajlakshmi
Dasee v. Katyayani Dasee (I.L.R. 38 Cal. 639); Shidappa Venkatrao
v'
Rachappa
Subrao
(I.L.R. 36
Born. 628) ; Rachappa Subrao
/adhav v. Shidappa Venkatrao /adhav {46 I.A. 24); Kelu Achan v.
Cheriya Parvathi Nethiar (J.L.R. 46 Mad. 631); Maol Chand v.
Ram Kishan (I.L.R. 55 All. 315) referred to.
C1v1L
APPELLATE
JuRISDICTION:
Civil
Appeal
No. 14 of 1953.
Appeal by special leave granted
by
the
Supreme
Court by its Order dated the 29th October, 1951, from
the
Judgment and Decree dated the 19th July,
1950,
of the High Court of Judicature
at Patna (Sinha and
Rai JJ.) in appeal from Appellate Decree No. 1152 of
1946 from the Judgment : and Decree dated the 24th
day of May,
1946, of the Court of the 1st Additional
District Judge in S. J.
Title Appeal No. 1 of
1946
arising out of the Judgment and Decree dated the 27th
November, 1945, of the First Court of Subordinate
Judge at Monghyr in Title Suit No. 34 of 1944.
S. C. Issacs ( Ganeshwar Prasad
and . R. C. Prasad,
with him) for the appellants.
.
B. K. Saran and M. M. Sinha for respondents
Nos. 1-9.
·
1954.
April 14. The Judgment of the Court was
delivered by
VENKATARAMA AYYAR J.-This appeal raises a question on the construction of section 11 of the Suits
Valuation Act.
The appellants instituted the suit
out
of which his appeal arises, in the Court of the Subordinate Judge, Monghyr, for recovery of possession "of
12 acres 51 cents of land situated in mauza Bardih, of
which defendants No~. 12 and 13, forming the second
party, are the proprietors. . The allegations in the plaint
are that on 12th April, 1943, the plaintiffs were admitted by the second party as occupancy tenants on payment of a sum of Rs. 1,950
as
salami and put · into
possession
of the lands, and that thereafter, the first
party consisting of defendants Nos. 1 to 11
trespassed
on them . and carried away the crops. · The suit was
'
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S.C.R.
SUPREME COURT REPORTS
1

## Text

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S.C.R.
SUPREME COURT REPORTS
117
circumvent
the mandatory provisions of the Code and
relieve the purchasers of their obligation to make the
deposit. The appellants
by misleading the Court want
to benefit by the mistake to which they themselves
contributed. They cannot be allowed to
take advantage of their own wrong.
The appeal fails and is dismissed · with costs .
Appeal dismissed.
KIRAN SINGH AND OTHERS
v.
CHAMAN P ASWAN AND OTHERS.
[MuKHERJEA, VIVIAN BosE, GttuLAM Ht\SAN
·and VENK~TARAMA AYYAR JJ.]
Suits Valuation Act (Vll of 1887), s, 11-Appeal under-valued
and presented to a Court of inferior jurisdiction-Whether a decree
passed by it on the merits is a nullity-Whether mere
change of
form or error in a decision on the merits, prejudice tuithin the meaning of section 11 of the Suits Valuation Act-Whether a party who
invokes a jurisdiction of a Court can complain of prejudice on the
ground of over-valuation or under-valuation.
The policy underlying section ll of the Suits
Valuation Act,
as also of sections 21 and 99 of the Code of Civil Procedure, is that
when a case has been tried by a Court on the merits and judgment
rendered, it sh01,1ld not be liable to be reversed purely on technical
grounds, unless a failure of Justice has resulted. The policy of the
Legislature has been
to treat
objections as to jurisdiction, both
territorial and pecuniary, as technical
and not open to
consideration by an appellate Court, unless there has been prejudice on the
merits.
Mere change of form is not prejudice within
the
meaning of
section 11 of the Suits Valuation Act ; nor a mere error in the
decision on the merits of the case.
It must be one directly attributable to over-valuation or under-valuation.
Whether there has been prejudice or not is a matter to he
determined on the facts of each case. The jurisdiction under se<:-
tion 11 is an equitable one to be exercised, ·when there has
been
an erroneous assumption of jurisdiction by a Subordinate Court as
a result of over-valuation or under-valuation and
a
consequential
failure of justice. It is
neither possible, nor desirable to define
tiUCh jurisdiction closely or confine it within stated bounds,
1954
Manila[ Mohanlai
Shah arid Others
v.
Sardar Sayed
Ahmed Sajed
Mahmadand
·Another.
1954
April 14.
'954
Kiran Singh and
OthetS . .
.
v.
Chaman Paswan
and (!~hers.
Vtnkatarama
Ayyar.].
118
SUPREME COURT REPORTS
[1955]
A party who has resorted to :l forum. of his .own choice o~ his
own valuation cannot himself be heard to complain of any
pre~
ju dice.
Ramdeo Singh v. Raj Narain (I.L.R. 27 Patna 109) ; Rajlakshmi
Dasee v. Katyayani Dasee (I.L.R. 38 Cal. 639); Shidappa Venkatrao
v'
Rachappa
Subrao
(I.L.R. 36
Born. 628) ; Rachappa Subrao
/adhav v. Shidappa Venkatrao /adhav {46 I.A. 24); Kelu Achan v.
Cheriya Parvathi Nethiar (J.L.R. 46 Mad. 631); Maol Chand v.
Ram Kishan (I.L.R. 55 All. 315) referred to.
C1v1L
APPELLATE
JuRISDICTION:
Civil
Appeal
No. 14 of 1953.
Appeal by special leave granted
by
the
Supreme
Court by its Order dated the 29th October, 1951, from
the
Judgment and Decree dated the 19th July,
1950,
of the High Court of Judicature
at Patna (Sinha and
Rai JJ.) in appeal from Appellate Decree No. 1152 of
1946 from the Judgment : and Decree dated the 24th
day of May,
1946, of the Court of the 1st Additional
District Judge in S. J.
Title Appeal No. 1 of
1946
arising out of the Judgment and Decree dated the 27th
November, 1945, of the First Court of Subordinate
Judge at Monghyr in Title Suit No. 34 of 1944.
S. C. Issacs ( Ganeshwar Prasad
and . R. C. Prasad,
with him) for the appellants.
.
B. K. Saran and M. M. Sinha for respondents
Nos. 1-9.
·
1954.
April 14. The Judgment of the Court was
delivered by
VENKATARAMA AYYAR J.-This appeal raises a question on the construction of section 11 of the Suits
Valuation Act.
The appellants instituted the suit
out
of which his appeal arises, in the Court of the Subordinate Judge, Monghyr, for recovery of possession "of
12 acres 51 cents of land situated in mauza Bardih, of
which defendants No~. 12 and 13, forming the second
party, are the proprietors. . The allegations in the plaint
are that on 12th April, 1943, the plaintiffs were admitted by the second party as occupancy tenants on payment of a sum of Rs. 1,950
as
salami and put · into
possession
of the lands, and that thereafter, the first
party consisting of defendants Nos. 1 to 11
trespassed
on them . and carried away the crops. · The suit was
'
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S.C.R.
SUPREME COURT REPORTS
119
accordingly laid for ejecting defendants Nos. 1 to
11
arid for mes.ne profits, past and future, and it was valued at Rs. 2,950, made up of Rs. 1,950 being the value
'of the relief for possession and Rs. 1,000, being the
past 'mesne profits claimed.
Defendants Nos. 1 to 11 contested the suit. They
pleaded that they had been in possession of the lands
as tenants on batai system, sharing the produce with
the landlord, from fasli 1336 and had acquired occupancy rights in the tenements, that the
second party
had no right to settle them on the plaintiffs, and that
~he fatter .acquired no rights under the
settlement
dated 12th April,
1943. Defendants Nos. 12 and 13
remained ex parte.
The Subordinate Judge held, relying on certain
receipts marked as Exhibits A to A-114 which were in
the handwriting of the patwaris of the
second
party
and w~ic~ ranged over the period from fasli 1336 to
1347, that defendants Nos. 1 to 11 had been in posses-
.sion for ovh 12 years as cultivating tenants and had
acquired occupancy
rights,
and
that
the
settlement
dated 12th April, 1943, conferred · no rights on the
plaintiffs.
He accordingly
dismissed the suit. The
plaintiffs
preferred an appeal against this decision to
the Court of the District Judge, Monghyr, who agreed
with the trial Court that the receipts, Exhibits
A to
A-114 were genuine, and that defendants Nos. 1 to 11
had acquired occupancy
rights,
and accordingly dismissed the appeal.
The plaintiffs took up the matter in second appeal to
the High Court, Patna, S.A. No. 1152 of
1946, and
there, for the first time, an objection was taken by the
Stamp Reporter to the valuation in the plaint and after
enquiry, the Court determined that the correct valuation of the suit was Rs. 9,980. The plaintiffs paid the
additional Court-fees required of them, and then raised
tlie contention that on the revised valuation, ·the appeal
from ~he decree of the Subordinate Judge would lie not
to the District Court but to the High Court, and that
accordingly S. A. No. 1152 of 1946 should be heard as
a first
appeal, ignoring the judgment of the District
Court. The learned Judges held, following the decision
!954
Kirar. Singh and
Others
v.
Chaman Paswan
and Others.
V enkatarama
AY.)'ar J.
1954
Kiran Singh and
Others
v.
Chaman Paswan
and Others.
.Venkatarama
Ayyar J.
120
SUPREME COURT REPORTS
[1955]
of a Full Bench of that Court in Ramdeo Singh v. R~j
Narain ( 1 ), that the appeal to the District Court was
competent,. and that its decision could be reversed onlv
if
the
appellants
could establish prejudice on
the
merits, and holding that on a consideration of the
evidence no such prejudice had been shown, they dismissed the second
appeal.
The matter now comes before us on special leave.
·
It will be noticed· that the proper Court to try the
present
action would
be the
Subordinate Court,
Monghyr, whether, the
valuation of ·the suit was
Rs. 2,950 as given in the plaint, or Rs. 9,880
as
determined by the High Court ; but it will make a differenc~
in the forum to which the appeal from its judgment
would lie, whether the one valuation or the other is to
be accepted as the deciding factor. On the plaint valuation, the appeal would lie to the District Court ; on the
valuation as determined by the High Court, it is that
Court that would be competent to entertain the appeal.
The contention of the appellants is that as on the valuation of the
suit as ultimately determined, the District
Court was not competent to entertain the appeal, the
decree and judgment passed by that Court must be treated as a nullity, that the High Court should have accordingly heard S.A. No. 1152 of 1946 not as a second
appeal with its limitations under section 100 of the Civil
Procedure Code but as a first appeal against the 'judge
ment and decree of the Subordinate 'Judge, Monghyr,
and that the appellants were entitled to a foll hearing as
well on questions of fact as of law. And alternatively, it
is .contended that even if the decree and judgment of
the District .Cqurt ·op. appeal are not to be treated as a
nullity and the matter is to be dealt with under section
11' of the Suits Valuation Act, the appellants had
suffered "prejudice" within ·the meaning of
that section, in that their appeal. against. the judgment of the
Subordinate Judge was heard not by the High Court
but by a Court • of inferior jurisdiction, viz., ·the District
Court of Monghyr, .and. that its decree was therefore liable to be set aside, and the ?Ppeal heard by.
the High
Court <in the merits, as. a first. appe~l.
'
. (1)' I.LR. 27 Patna Iog; ~ I.R ~~49 Patna 278
. •
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I •
S.C.R.
SUPREME COURT REPORTS
121
The answer to these contentions must depend on
what the position in law is when a Court entertains a
suit or an appeal over which it has no jurisdiction, and
what the effect of section 11 of the Suits Valuation Act
is on that position. It is a fundamental principle wellestablished
that a decree
passed by a Court without
jurisdiction is a nullity, and that its invalidity could be
set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and
even in collateral proceedings. A defect of jurisdiction,
whether it is pecuniary or territorial, or whether it is
in respect of the subject-matter of the action,
strikes at
the very authority of the Court to pass any decree, and
such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be
determined only on the application of general principles
governing the matter, there can be no doubt that the
District Court of Monghyr was coram non judice,
and
that its judgment and decree would be nullities.
The
question is what is the effect of section 11 of the Suits
Valuation Act on this position.
Section 11 enacts that notwithstanding anything in
section 578 of the Code of Civil Procedure, an objection
that a Court which had no jurisdiction over a suit or
appeal had exercised it by reason of over-valuation or
under-valuation,
should
not
be
entertained
by
an
appellate Court, except as provided in the section. Then
follow provisions as to when the objections could be
entertained, and how they are to be dealt with. The
drafting of the section has come in-and deservedlyfor considerable .criticism ; but amidst much that is
obscure and confused, there is one principle which
stands out clear and conspicuous. It is that a decree
passed by a Court, which would have had no jurisdiction to hear a suit or appeal but for over-valuation or
under-valuation, is not to be treated as, what it would
be but for the section, null and void, and that an objection to jurisdiction based on over-valuation or undervaluation should be dealt with under that section and
not otherwise. The reference to section 578, now section 99, of the Civil Procedure Code, in the opening
words of the section
is significant. That section, while
providing that no decree shall be reversed or varied in
1954
Kiran Singh and
Others
v.
Chaman Paswan
and Others.
Venkatarama
AyyarJ.
1954
Kiran Singh and
Others
v.'
Chaman Paswan
and Oihers.
Venkatarama
A~ar J.
122
SUPREME COURT REPORTS
[1955.J
appeal on account
of the defects
mentioned
therein
when they do not affect the merits of the case, excepts
from its operation
defects of
jurisdiction. . Section 99
therefore
gives
no protection to
decrees
passed on
merits,
when the
Courts which passed them lacked
jurisdiction as
a result of over-valuation or undervaluation. It is with a view to avoid this result that
section 11
was
enacted. It provides
that · objections
to the jurisdiction of a Court based
on over-valuation
or
under-valuation
shall
not
be
entertained by
an
appellate Court except in the manner and to the extent
mentioned in the section.
It is a self-contained provision ·complete .in itself, and no objection to jurisdiction
pased on over-valuation or under-valuation can be raised otherwise than in accordance with it. With reference
to objections relating to territorial jurisdiction, · section
21 of the Civil Procedure Code enacts that no objection
to the place of suing should be allowed by an appellate
o.t revisional Court, unless there was a consequent failure of justice, It is the same principle that has been
adopted in section 11 of the Suits Valuation Act with
reference to pecuniary jurisdiction.
The policy underlying .sections 21 and 99 of. the Civil Procedure Code
and section 11 of the Suits Valuation Act is the same,
~amely, that wheri a case had been tried by a Court on
the merits. and judgment rendered, it should not be
liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy
of . the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and
not. open to consideration by an appellate Court, unless
there has been a prejudice on the merits. The contention. of the appellants, therefore, that the decree and
judgment of the District Court, Monghyr, should be
treated as a nullity eannot . be sustained under section
p of the Suits .Valuation Act.
.
, On behalf . of the appellants
Rajlakshmi Dasee v.
Katyayani Dasee( 1 ) and Shidappa Venkatrao v. Rachappa
Subrao(' ) which was affirmed by the· Privy Council in
Rachappa
Subrao
/adhav
v.
Shidappa
Venkatrao
Jadha11( •) were relied on as supporting tire contention
(t) I.L.R. 38 Cal. 639.
(3) 46_!.A:·24.
(2) I.L.R. 36 Born. 628.
·
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.~~-
S.C.R.
SUPREME COURT REPORTS
123
that if the appellate Court would have had no jurisdiction to entertain the appeal if the suit had been correctly valued, a· decree passed by it must be treated as
a nullity. In Rajlakshmi Dasee v. Katyayani Dasee(1),
the facts
were that one Katyayani Dasee instituted
a
suit to recover the estate of her husband Jogendra in
the Court of the Subordinate Judge, Alipore, valuing
the claim at Rs.
2,100, whereas the estate was worth
more than a lakh of rupees. The suit was decreed, and
the defendants preferred an appeal to the District
Court, which was the proper Court to entertain the
appeal on the plaint valuation. There, the parties,
compromised the matter, and a consent decree was
passed, recognising the title of the defendants to portions
of the estate.
Then, Rajlakshmi Dasee, the
daughter of Jogendra, filed a suit for a declaration that
the consent decree to which her mother was a party
was not binding on the reversioners. One of the grounds
urged by her was that the suit of Katyayani was deliberately under-valued, that if it had been correctly
valued, it was the High Court that would have had the
competence to entertain the appeal, and that the consent decree passed by the District
Judge was accordingly a nullity. In agreeing with this contention, the
High Court observed that a decree passed by a Court
which had no jurisdiction was a nullity, and that even
consent of the parties could not cure the defect. In
that case, the question was raised by a person who
was not a party to the action and in a collateral proceeding, and the Court observed :
"We are not now called upon to consider what the
effect of such lack of jurisdiction would be upon
the
decree, in so far as the parties thereto were concerned.
It is manifest that so far as a stranger to the decree is
concerned, who is interested in the property affected
by the decree, he can obviously ask for a declaration
that the· decree is a nullity, because made by a Court
which had no jurisdiction over the subject-matter of
the litigation."
On the facts, the question of the effect of section 11
. of the Suits Valuation Act did not arise for determination, and was not considered.
(1) I.L.R. 36 Cal. 639.
9-66 S. C India/59
195,,,
Kiran Singh and
Others
v.
Chaman Paswan
and Others.
Venkatarama
Ayyar ].
!1955
Kiran.Singh and
Others
'
v.
·chaman Paswan
and Others.
:y tnkatarama
<lY.)'ar ],
124
SUPREME COURT REPORTS
[1955]
In Shidappa Venkatrao v. Rachappa Subrao( ., ) the
plaintiffs instituted a· suit in the Court of the Subordinate Judge, First Class, for a declaration that he was
the adopted son of one Venkatrao and for an injunction restraiiiing the defendant' from interfering with
his possession of a house. The plaint· valued the declaration at Rs.
130 and the injunction at Rs. 5, and
the suit was valued for purposes of pleader's fee at
Rs. 69,016-9-0 being the value of the estate. The suit
was decreed by the Subordinate Judge, and against his
decree the defendant preferred an appeal to the District
Court, which allowed the· appeal and dismissed the suit.
The plaintiff took up the matter in ·second appeal to
the High Court, and contended that ·on the valuation
in the plaint ··the · appeal ··against . the decree of the
Subordinate Judge lay to the High· Court, and that the
appeal to the ·District Court · was incompetent.· This
contention was upheld, and the decree· of ·the District
Judge was set aside. It will be seen that the· point in
dispute was whether on the allegations in -the plaint the
·value for purposes of· jurisdiction was·'• Rs: 135 or Rs.
·69,016-9-0, and the ·decision was that it was ·the· latter.
No question of· over-valuation or under'valuation: · arose,
'and n'o deCision on tlie scope of section·:n of the ·Suits
Valuation Act was given.
· · · ·
As ·a result of its decision, the High Court . ·came to
·entertain ·the matter as a first appeal
and: •affirmed · the
decree of the Subordinate Judge. The defendant then
·took up the matter
in appeal to the Privy Council . in
Rachappa
Subrao Jadhav v.
Shidappa ·
Venkatrao
']adhav (2), and there, his contention was that, in fact,
·on its true valuation the suit was triable by the Court
of the Subordinate Judge of the Second Class, and that
the District Court was the proper Court to entertain
the appeal.
The Privy Council held that this objection
which was "the most
technical of technicalities"
was
not taken in the Court of first instance, and· that the
Court would not be justified "in assisting an
objection
of that type," and that it was also untenable. Before
concluding, it observed !
·"The Court Fees Act was
passed not to arm a
'litigant with a weapon of technicality against
his
(1) I. L. R. 36 Jlom 628.
(2) 46 I A 24.
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S.C.R.
'SUPREME COURT' REPORTS
.125
opponent but to secure revenue for the benefit of· the
State ........ The defendant in this suit seeks to utilise the
provisions of the Act not to safeguard the interests of
the State, but to obstruct the plaintiff ; he does not
contend that the Court wrongly decided to
t_he detriment of the· revenue but that it dealt with the case
without
jurisdiction.
In
the
cir.cumstances
this
l
plea, advanced for the first time at the hearing of the
>
appeal in the District Court, is misconceived, and was
rightly rejected by the High Court."
· Far from supporting · the contention of.the appellants
that the decree passed in appeal by the District .Court
of Mcmghyr ·should be · regarded as a nullity,.: these
·observations show that an objection of the kind ·now
put forward being highly technical in character should
... · not be entertained if not raised in the Court of first
instance. We are therefore of opinion that· the decree
and judgment of the District Court, Mbnghyr;· _cannot
be regarded·as a nullity.
.. · · '
·
It is next .ccmtended that even treating the · matter
. as g@verned by section 11 of· the· Suits Valuation· Att,
there was prejudice to the appellants, ·in that by reason
. of the under"valuation, their appeal . was heard 'by . a
"'" . Court of inferior jurisdiction, while they ·Were ··en-
. titled to a hearing by the· High Court on· the •facts .
. It was argued that the right of appeal Was a valuable
. one, and that deprivation of the right of the appellants
to appeal to the High Court on facts must
1therefore ·be
· held, without more, to constitute prejudice: This argument proceeds on a· misconception. The right of appeal
· is no doubt a substantive right, and its deprivation · is
~ a serious prejudice ; but the appellants have ·not been
~~ deprived of the right of appeal against the judgment · of
the Subord_inate Court. The law does provide an appeal
. against that judgment to the District Court, and the
plaintiffs have exercised that right. Indeed, the undervaluation has
enlarged the appellants' right of appeal,
because while they would have had only a right of one
appeal and that to the High Court if the suit had been
,
correctly valued, by reason of the under-valuation . they
~ ..... ,,.. · obtained right to two appeals, one to the District Court
and another to the High Court. The complaint of the
1954
Kirdn Singh and
Others
v.
Chatrian Paswan
and Ot/zers.
· V enkatarama
AyyarJ.
1954
Kiran Singh and
Others
v.
Chaman Paswan
and Others.
V enkatarama
4J>yar J.
126
SUPREME COURT REPORTS
[1955]
~;
appellants really is not that they had been deprived of
a right of appeal against the judgment of the Subordinate Court, which they have not been, but that an
appeal on the facts against that judgment was heard by
the District Court and not by the High Court. This
objection therefore amounts to this that a change in
the forum of appeal is by itself a matter of prejudice
for the purpose of section 11 of the Suits Valuation Act.
The question, therefore, is, can a decree passed on
appeal by a Court which had jurisdiction to entertain
it only by reason of under-valuation
be set aside on
the ground that on a true valuation that Court was not
competent to entertain the appeal ? Three High Courts
have considered the matter in Full Benches,
and have
come. to the conclusion that mere change of forum is
not a prejudice within the meaning of section 11 of the
Suits Valuation Act.
Vide Kelu Achan v. Cheriya Parvathi Nethiar('), Moo/ Chand v. Ram Kishan(2 )
and
Ramdeo Singh v. Rai Narain( 8 ). In our judgment, the
opinion expressed in these
decisions is correct. Indeed,
it is impossible on the language of the section to come
,.,,
to a different conclusion. If the fact of an appeal being
heard by a Subordinate Court or District Court where V
the appeal would have lain to the High Court if the
correct valuation had been given is itself a matter of
prejudice,
then the decree passed by the Subordinate
Court or the District Court must, without more, be
liable to be set aside, and the words "unless the overvaluation or under-valuation
thereof has
prejudicially
-
-
· affected the disposal of the suit or appeal on its merits"
would become wholly useless. These words clearly show
that the decrees passed in such cases are liable to be Ji~
interfered with in an appellate Court, not in all cases ~.
and as a matter of course, but only if prejudice such as
is mentioned in the section results. And the prejudice
envisaged by that section
therefore must be something
t'
other than the appeal being heard in a different forum.
A contrary conclusion will lead to the surprising result
that the section was enacted with the object of curing
(1) LL.R. 46 Mad. 631.
. ..(_,;,-
(2) I.L.R. 55 AU. 315.
(3) I.L.R. 27 Patna 109j A.LR; 1949 Patna 278.
·~
,t,.
>
:s.c.R.
SUPREME COURT REPORTS
127
.defects
of jurisdiction arising by reason of over-valuation, or under-valuation but that, in fact, this object
has not been achieved. We are therefore clearly of
·opinion that the prejudice contemplated by the section
is something different from the fact of the appeal having been heard in a forum which would not have been
competent to hear it on a correct valuation of the suit
~s ultimately determined.
It is next argued that in the view that the decree of
'the lower appellate Court is liable to be reversed only
•on proof of prejudice on the merits, the second appellate Court must, for the purpose of ascertaining whether
there was prejudice, hear the appeal fully on the.. facts,
.and that, in effect, it should be heard as a first appeal.
Reliance is placed in support of this .contention on the
·observations of two of the learned Judges in Ramdeo
.Singh v. Raj Narain ( 1 ). There, Sinha J. observed
:that though the second appeal could not be treated as
:a first appeal, prejudice could be established by going
'into the merits of the decision both on questions of
:fact and of law, and that that could be done under
:section 103 of the Civil Procedure Code. Meredith J.
:agreed that for determining whether there was preju-
<lice or not, there must be an enquiry on the merits of
the decisions
on questions of fact ; but he was of
opinion that that could be done under section 11 of the
Suits Valuation Act itself.
Das J.,
however,
declined
to express any opinion on this point, as it did not arise
:at that stage. The complaint of the appellants is that
the learned Judges who heard the second appeal,
though they purported to follow the decision in Ramdeo Singh v. Raj Narain ( 1 ) did not, in fact, do so, and
that there was no consideration of the evidence bearing
on the questions of fact on which the parties were in
dispute.
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
_(1) I.L.R. 27 Patna 10~; A,J,R, 1949 Patna 278.
1954
Kiran Singh and
Others
v.
Chaman Pa.rwan
and Others.
Venkatarama
AyyarJ.
'954·
Kiran Singh and
Others·
v.
Chaman Paswan
and Others~
V enkatarama
AVJ'arJ.
128
SUPREME COURT REPORTS
[19553conclusions reached by the · lower appellate Court are·
right. If it agrees with those findings, then it will
affirm the judgment ; if it does not, 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 . overvaluation 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 there"
fore be clearly precluded by the language of the section. .fo must further be noted that there is no provi;,
sion 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. S_ection 103 was ·relied on irr
Ramdeo Singh v. Raj Narain(')
as conferring such a
power.
But that section . applies only· when the lower
appellate Court has failed to record ·a finding on any
issue, or when there had been -irregularities or defects··
such as fall -under section 100 of the
Civil
Procedure·
Code. 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 Civif
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 Ji
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 that se-ction"
So far, the definition of "prejudice" has · been. negative in terms-that it cannOt be mere change of forum
(1) I.L.R, 'J.7 Patna 109. · -
.
-
-
S.C.R.
SUPREME. COURT REPORTS.
129
•
>
}
or mere error in the decision on the. merits. What then
is positively prejudice for the purpose of . section 11 ? .
That is a question which has agitated . Courts. in India
ever since the enactment of the section. It has .. been
suggested th\lt if there was no proper hearing of the
suit or appeal .and that had resulted in injustice, that
would
be. prejudice . within
~ection 11
of th.e
Suits
Valuation Act. Another instance of prejudice is when
a suit which ought to have been filed as an original suit
is filed as a result of under-valuation on the small cause
side. The procedure for trial of suits in ·the · Small
Cause Court is summary ; . there are no ·provisions for
discovery or inspection ; evidence is not . req>rded · in
extenso, and there is' no right of appeal against its de.cision. The defendant thus loses the benefit . of an elaborate procedure. and a right ot' appeal which he would
have had, if the suit had been filed on the original side.
It can be said in such a case that the disposal of. the
suit by the Court of Small Causes has. prejudicially
affected the merits of the cas~. ·No purpose, however,
is served by attempting to enumerate exhaustively .. all
possible cases of prejudice which might. come under
section 11 of the Suits . Valuation Act. · The jurisdiction
that is conferred on appellate Courts under that section
is an equitable one, to be , exercised when there has
been
an erroneous assumption of jurisdiction 'by a
Subordinate Court· as a result of over-valuation or undervaluation and a .consequentia(failure of justice. It is
neither possible nor even . desirable to define such a
jurisdiction closely, qr. confine it within stated b9unds.
It can only be predicated of it that it is. in the nature
of a revisional jurisdiction to be exercised with caution
and for the en.ds· .9f justice, whenever the facts and
situations call for it.. .Whether there .. has been prejuc
dice or not. is, accordingly, a matter. to be determined
on the facts of each case.
I
\
I
'
r
We have ·now to. see whether the appellants have
suffered any prejudice . by reason
of the
under-valuation.
They were the plaintiffs
in
t4e
action. They
·,t. •· \va~ue~ the suit ~t !ls·. 2;950 .. The defendants raised .no
"11ect10n to the 1.unsd1ct10n of.the Court at any .time.
Then the plaintiffs lost the suit after an elaboratt"
1954
KiranfSingh anit
Others
v.
Chaman Paswan
and Others.
Venkatarama
Ayyar].
1954
Kiran Singh and
Others
v.
Chaman Paswan
tind Others.
V enkatarama
AY.7ar j.
130
SUPREME COURT REPORTS
[1955]
trial, it is
they who appealed to the District Court as
they were bound to, on their valuation. Even there,
the defendants took no objection to the jurisdiction of
the District Court to hear the appeal. When the decision went on the merits against the plaintiffs, they
preferred S. A. No. 1152 of 1946 to the High Court of
Patna, and if the Stamp Reporter had not raised the
objection to the valuation and to the Court-fee paid,
the plaintiffs would not have challenged the jurisdiction of the District Court to hear the appeal. It would
be an unfortunate state of the 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.
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 undervaluation 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 ?
There is considerable authority in the Indian Courts
that clauses (a) and (b) of section 11 of the Suits Valuation Act should be read conjunctively, notwithstanding
the use of the word "or." If that is the correct interpretation, the plaintiffs would be precluded from raising
the objection about jurisdiction in an appellate Court.
But even if the two provisions are to be construed disjunctively, and the parties held entitled under section 11 (I) (b) to raise the objection for the first time in
the appellate Court, even then, the requirement as to
prejudice has to be satisfied, and the party who has
resorted to a forum of his own choice on his own valuation cannot himself be ·heard to complain of any
prejudice. Prejudice can be a ground for relief only when
it is due to the action of another party and not when
it results from one's own act.
Courts cannot recognise
that as prejudice which flows from the action of the
-
'
_) .
S.C.R.
SUPREME COURT REPORTS
131
very party who complains about it. Even apart from
this, we are satisfied that no prejudice was caused to
the appellants by their appeal having been heard
by
the District Court. There was a fair and full hearing
of the appeal by that Court ; it gave its decision on
the merits on a consideration of the entire evidence in
the case, and no injustice is shown to have resulted in
its disposal of the matter. The decision of the learned
Judges that there were no grounds for interference
under section 11 of the Suits Valuation Act is correct.
In the result, the appeal fails and is dismmised with
costs.
Appeal dismissed.
WUNTAKAL YALPI CHENABASAVANA GOWD
v.
RAO BAHADUR Y. MAHABALESHWARAPPA
AND ANOTHER.
[BIJAN KUMAR MuKHERJEA, VIVIAN BosE, GHULAM
HASAN and T. L. VENKATARAMA AYYAR JJ.]
Co-sharers-faint property-Adverse possession
by a co-sharer
against another co-sharer-Ouster-Principles applicable thereto.
Once it is held that a possession of a co-sharer has
become
adverse to the other co-sharer as a result of ouster, the mere assertion of his joint title by the dispossessed co-sharer would not interrupt the running of adverse
possession.
He must actually
and
effectively break up the exclusive possession of
his
co-sharer by
re-entry
upon the
property or by
resuming
possession in such
manner as it was possible to do. It may also check the running of
time if the co-sharer who is in exclusive possession acknowledges
the title of his co-owner or discontinues
his exclusive
possession
of the property.
The fact that one co-sharer who had allowed himself to be dispossessed by another co-sharer as a result of ouster exhibited later
on his animus to treat the property as
the joint property of himself and his co-sharer cannot arrest the running of adverse possession in favour of the co-sharer.
A mere mental act on the part of
the person dispossessed unaccompanied by any change of
possession cannot
affect the
continuity of adverse possession of the
<leseizor.
CIVIL
APPELLATE
No. 89 of 1953.
JuRisDICTION : Civil·
Appeal
1954
Kiran Singh and
Others •
v.
Chaman Paswan
and Others.
Venkatarama
AyyarJ.
1954
April 15.