KIRAN SINGH AND OTHERS versus CHAMAN PASWAN AND OTHERS.

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 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.

pp. 118–119

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.

p. 119

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.

p. 119

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 of a Full Bench of that Court in Ramdeo Singh v. R~j Narain ( 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. ·

pp. 119–120

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. ' ~ ~~49

p. 120

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.

p. 121

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 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. .

pp. 121–122

, On behalf . of the appellants Rajlakshmi Dasee v. Katyayani Dasee( 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 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 :

pp. 122–123

"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."

p. 123

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. 9-66

p. 123

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. · · · ·

p. 124

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

p. 124

·"The Court Fees Act was passed not to arm a 'litigant with a weapon of technicality against his 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

pp. 124–125

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."

p. 125

· 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

p. 125

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. .. · · ' ·

p. 125

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

p. 125

. 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 therefore ·be · held, without more, to constitute prejudice: This argument proceeds on a· misconception. The right of appeal

p. 125

· is no doubt a substantive right, and its deprivation · is

p. 125

~ 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

p. 125

appeal and that to the High Court if the suit had been

p. 125

, 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 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.

pp. 125–126

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( and Ramdeo Singh v. Rai Narain( 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 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 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 .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.

pp. 126–127

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 ( 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 ( 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.

p. 127

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 10~; conclusions 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"

pp. 127–128

So far, the definition of "prejudice" has · been. negative in terms-that it cannOt be mere change of forum 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.

pp. 128–129

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 \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"

p. 129

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 ?

p. 130

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 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 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.

pp. 130–131

In the result, the appeal fails and is dismmised with costs.

p. 131

Appeal dismissed. WUNTAKAL YALPI CHENABASAVANA GOWD

p. 131

v. RAO BAHADUR Y. MAHABALESHWARAPPA

p. 131

AND ANOTHER. [BIJAN KUMAR MuKHERJEA, VIVIAN BosE, GHULAM

p. 131

HASAN and T. L. VENKATARAMA AYYAR JJ.]

p. 131

Co-sharers-faint property-Adverse possession by a co-sharer against another co-sharer-Ouster-Principles applicable thereto.

p. 131

Once it 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 in exclusive possession acknowledges the title of his co-owner or discontinues his exclusive possession of the property.

p. 131

The fact that one co-sharer who had allowed himself to be dispossessed 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.

p. 131

CIVIL APPELLATE JuRisDICTION : Civil· Appeal No. 89 of 1953.

p. 131