Patna High Court
Smt. Kashi Bai vs Brajendra Nath And Ors. on 31 March, 1953
Equivalent citations: AIR1953PAT380, 1953(1)BLJR375, AIR 1953 PATNA 380
JUDGMENT Narayan, J.
1. This is an application for leave to appeal to the Supreme Court against a decision of this Court in Appeals from Original Decrees Nos. 252 and 254 of 1948. The applicant is one Shreemati Kashi Bai whs was the appellant in both the appeals. The opposite parties Nos. 1 to 3 had filed a suit. Title Suit No. 16 of 1945, against this petitioner in the Court of the Subordinate Judge at Dhanbad, and the case pub forward by them was that the defendants had encroached upon their coal land. They had, therefore, prayed that the intermediate boundary line between their coal land and the coal land of the defendant Shreemati Kashi Bai be fixed and determined, that their possession over the encroached land be restored and that they be awarded compensation for the coal cut and removed, by the defendant from the disputed coal land.
2. This suit had been instituted on 24-3-1945, and on 31-7-1945 Shreemati Kashi Bai filed another suit Title Suit No. 50 of 1945, against opposite parties Nos. 1 to 3 and certain other persons, and this suit was also in respect of the very piece of coal land for which Title Suit No. 16 had been instituted. The reliefs sought in this suit were almost the same as in the previous suit. The decision in the two suits was against the petitioner; that is, Suit No. 16 was decreed and Suit No. 50 was dismissed. The petitioner had to prefer appeals against the two decisions, and this Court affirmed the decree granted by the Subordinate Judge in the two suits with this modification that in Title Suit No. 16 certain new persons were added as co-plaintiffs and they were granted a joint decree along with the other plaintiffs.
3. The submission on behalf of the petitioner is that though the suits were valued at Rs. 5100 only for the purposes of court-fee and jurisdiction, the real value of the property in suit and the claim involved in the two suits considerably exceeded Es. 20,000, and that consequently the judgment and the decree under appeal involve, directly or indirectly, claim or question respecting property of the value of more than Rs. 20,000. It is further contended that the decree passed in Title Suit No. 16 has been subsequently varied, and the decree of this Court cannot, therefore, be regarded as a decree of affirmance, and that in accordance with the provisions of Order 45, Rule 4 the suits which involve substantially the same questions for determination and which have been decided by the same judgment have to be consolidated. In the alternative, it is suggested that if the decree of this Court be treated as a decree affirming the decision of the Court below, then in that case the appeal involves some substantial questions of law,
4. There can be no doubt that the judgment and the decree involve, directly or indirectly, some claim or question respecting property of the value of more than Rs. 20,000. The report of the Commissioner submitted on 26-6-1946 is a part of the decree in Title Suit No. 16 of 1945. The Commissioner has fixed the intermediate boundary line between the plaintiffs' land and the defendants' land, and he has found that inclines Nos. 1 and 2 which have been worked are outside the southern boundary of the defendant. The volume of coal cut and removed from the said two mines has been found to be 2,87,103 C. ft. This would amount to 10,254 tons. And it could not, therefore, be disputed before us that the real dispute was and is with regard to more than 10,000 tons of coal. Whether it is inside the earth or outside the earth, the value of 10,000 tons of coal cannot be less than Rs. 20,000, and the judgment and the decree thus involve claim or question respecting property of the value of more than Rs. 20,000. Arguments were addressed to us on the question whether the right of appeal would be governed by Section 110, Civil P. C. or by Article 133(1) of the Constitution of India. The suits had undoubtedly been instituted before the new Constitution of India came into force, and therefore the question arises whether Article 133 had retrospective effect and would govern a suit which had been instituted before the new Constitution came into force. This question appears to be academic in this case, inasmuch as the value of the coal in dispute, whether it is underneath the ground or whether it had been removed, cannot be less than Rs. 20,000.
A Bench of this Court has, however, very recently come to the decision that a right of appeal is not a mere matter of procedure and that the vested right which the litigant had on the date of the institution of the suit cannot be deemed to have been taken away by the Constitution. We are bound by the decision of the Division Bench of this Court in -- 'Narayan Prasad v. Raj Kishore', AIR 1953 Pat 275 (A)', and it is not open to us to investigate whether this decision is correct in law or not though in certain other decisions of this Court observations appear to have been made which do not seem to agree fully with the view taken by Ramaswami and Jamuar JJ. in this Supreme Court Appeal, e.g., Lakshmikant Jha C. J. and Chatterji J. observed in -- 'Lalmina Singh v. M.K. Kamal Singh', AIR 1952 Pat 450 (B), that after the Constitution of India came into force the law has been changed and certificate for leave to appeal has now to be granted under the provisions of Article 133(1) of the Constitution. Their Lordships further observed that if there is any conflict between the provisions of this Article with those of Order 45 Rule 3 and Section 110, Civil P. C., the Constitution will prevail. The question of a vested right of appeal was discussed by the special Bench which decided the case of -- 'Mahendra v. Dersan', AIR 1952 Pat 341 (SB) (C). But, when the question has been directly decided in -- 'AIR 1953 Pat 275 (A)', I think, we are bound to follow this decision. Moreover, as I have already said, this question is only of academic interest in this case, inasmuch as. as indicated above, this is really a case in which the judgment and the decree involved claim or question respecting property of the value of more than Rs. 20,000.
5. The next question which arises is whether the judgment and the decree against which the petitioner is appealing have affirmed the decision of the court immediately below. If the judgment and the decree of this Court are interpreted as a judgment and decree confirming the decision of the Court below, then in that case no leave can be granted, unless the appeal involves some subtantial question of law. I have no hesitation in agreeing with Mr. R.S. Chatterji that the decision of this Court cannot be regarded as a decision of affirmance. Title Suit No. 16 had been decreed by the Court below only in favour of the present opposite parties Nos. 1 to 3. By an order of this Court defendants 4 to 10 of Title Suit No. 50 were added as co-plaintiffs, and the order of this Court is that in Title Suit No. 16 the newly added co-plaintiffs will be granted a joint decree along with the other plaintiffs. This is certainly a variation of the decree of the Court of first instance, and it would, in my opinion, be wrong to say that the decree of this Court passed in the appeal arising out of Title Suit No. 16 is a decree of affirmance.
In a very recent decision -- 'Viraraghava Rao v. Narasimharao', AIR 1950 Mad 124 (D), the High Court of Madras has held that where the High Court modifies the decree of the lower appellate Court only by varying the quantum of damages awarded and that variation is in favour of the person who seeks to appeal against the decision of the High Caurt, an appeal lies to the Federal Court without the consideration of the question whether the appeal involves a substantial question of law, as the decree of the High Court is not one of affirmance. Their Lordships have taken the view which appears to have been consistently taken in this Court that a variation whether to the prejudice or in favour of the person seeking leave to appeal would not alter the decree of variance into one of affirmance.
A Bench of this Court had held in -- 'Homeshwar Singh v. Kameshwar Singh', AIR 1933 Pat 262 (E), that the question whether the judgment of the High Court is a judgment of affirmance or not does not depend upon whether the appellant is the plaintiff or the defendant and that it is immaterial whether the effect of the modification is in favour of the appellant or adds to his detriment. This decision has been referred to with approval in the Special Bench case of -- 'Brajasunder Deb v. Rajendra Narayan', AIR 1941 Pat 269 (SB) (P). The Calcutta High Court has followed the Patna rulings in -- 'B. N. Ry. Co. Ltd. v. Ruttanji Ramji', AIR 1935 Cal 250 (G) and has quoted with approval the observation of Courtney-Terrel C. J. in the said case of -- 'AIR 1933 Pat 262 (E)1. A Special Bench of the Allahabad High Court also held in --'Nathu Lal v. Raghubir Singh', AIR 1932 All 65 (SB) (H), that if the decree of the Court below has been varied, no matter to what extent, the decree cannot be one of affirmance. The position is so obvious that it will be needless to cite further authorities on this point, and because the decree in Title Suit No. 16 is now a decree in favour of several other persons besides the original plaintiffs of this suit, the decree passed in this suit cannot be deemed to be a decree of affirmance.
According to the provisions of Order 45, Rule 4 suits involving substantially the same questions for determination and decided by the same judgment can be consolidated. The most significant circumstance in this case is that both the suits relate to the same piece of coal land, and according to the contention of the opposite parties the title suit instituted by the lady was a counter-blast to Title Suit No. 16 instituted earlier by the opposite parties. There cannot be a better case in which the provisions of Order 45, Rule 4 can be applied, and if leave has to be granted in the appeal arising out of Title Suit No. 16, leave ought to be granted in the other appeal as well arising out of Title Suit NO. 50.
6. Lengthy arguments were advanced before us on the point as to whether there is a substantial question of law to be decided in this case, but this point becomes immaterial when we find that the decree is not a decree of affirmance. The main ground on the basis of which it was urged that there is a substantial question of law to be decided in the case is that the question of title has not been decided by this Court and that a certain map has been used which, according to the submissions of the applicant, is inadmissible in evidence. But in view of the observation of the Judicial Committee in -- 'Kesho Prasad Singh v. Mt. Bhagjogna Kuer', AIR 1937 PC 69 (I) the map which is a part of the decree which was passed in the suit of 1896 should be regarded as admissible in evidence, that map was incorporated in decree and in my opinion no improper use has been made of this map in the judgment of this Court. I should like to quote the following passage from the judgment of the Privy Council in -- 'AIR 1937 PC 69 (I)':
"On the other hand apart from all discussion whether a judgment is or is not a 'transaction' within the meaning of Section 13 of the Evidence Act (cf. -- 'Gujja Lall v. Fatteh Lall, 6 Cal 171 (FB) (J) -- 'Dimomani v. Brojo Mohini', 6 Cal W N 386 (PC) (K) ) the judgment of 1916, together with the plaint which preceded it and the steps in execution which followed, are evidence of an assertion by the Raj of the right which it claims to have acquired in 1903 and are thus admissible evidence of the right."
The previous litigation was a litigation between one Ramdayal Mazumdar and Bhudhar Chandra Roy. The plaintiffs in Title Suit No. 16 have derived their interest in some way or other from the Mazumdars, and Bhudhar Chandra Roy having surrendered his lease, there was a fresh settlement with one W.H. Benett who is the predecessor-in-interest or the predecessor-in-title of the petitioner Sheemati Kashi Bai. By the map which, was attached to the decree of the suit of 1893, the intermediate boundary line between the plaintiffs coal land and the defendants' coal land had been demarcated, and the conclusion arrived at by Ramaswami and Sinha JJ. in this case was that the Commissioner had correctly surveyed the eastern and the northern boundaries of the plaintiffs' land according to the map attached to the decree of 1898, that the intermediary boundary line between the plaintiffs' coal land and the defendants' coal land had been correctly demarcated by the Commissioner in his comparative map, that the disputed coal land including the two inclines, 1 and 2, belonged to the plaintiffs and that the defendants had made encroachment thereon.
My own view is that the map of the previous litigation cannot be rejected as an inadmissible piece of evidence, but there are cases which lay down that the question regarding the non-admissibility of a document is a substantial question which will entitle the petitioner to have a certificate. (See -- Mahadeva Royal v. Veerabasava Chikka Royal', AIR 1942 Mad 368 (L)). In -- -- 'Tayamma v. Varadacharyulu,' AIR 1929 Mad 827 (M), it was held that where High Court affirms the judgment of lower Court and gives a finding against a party in respect of the existence of necessity for the alienations of lands made by a Hindu widow without advertence to the rule regarding recitals in ancient documents, there is a substantial question of law involved in the appeal. The well-known decision of the Judicial Committee in -- 'Raghunath Prasad Singh v. Deputy Commr. of Partabgarh', AIR 1927 PC HO (N) may also be referred to in this connection. The view taken by the Privy Council is that 'substantial question of law1 is a substantial question of law as between the parties, and it does not mean that the question of law involved must be of general importance.
The question of the admissibility of documents is very often a question of some importance, and it appears from the judgment of Ramaswami J. that he did not decide the question whether the judgment of Title Suit No. 32 of 1896 will operate as res judicata. He proceeded on the assumption that it would not operate as res iudicata, but still he was of opinion that the decree of the previous suit and the map incorporated therein were admissible for the purpose of determining what was the northern boundary of the coal land. The question on the whole appears to be a substantial question, and, therefore, I would have been inclined to grant the certificate even if I would have been of the opinion that the decree of the Court was a decree of affirmance. In any view of the matter, therefore, these applications must succeed.
7. The applications are allowed, and a certificate will be granted to the petitioner for leave to appeal to the Supreme Court under Article 133 of the Constitution of India read with Section 110, Civil P. C. against the decisions of this Court in Appeals from Original Decrees Nos. 252 and 254 of 1948. The petitioner is entitled to her costs; hearing fee two gold mohurs in each case.
Ahmad, J.
8. I agree.