P L D 1952 Dacca 176 (PLP)

SHAHABUDDIN, C. J.

‑This is an Application for leave to appeal to the Federal Court of Pakistan from the judgment and decree of this Court, dated the 30th of May, 1950, in Second Appeal No 913 of 1944. The Second Appeal arises out of "Other Suit" No. 15 of 1941, in the 1st Court of the Subordinate Judge, Chittagong, filed for a declaration of plaintiff's maliki right in the Noabad Taluq 20675 Yasin and for recovery of Khas possession of the suit lands by ejecting the defendants by the removal of struc tures and other obstacles and mesne profits. The trial Court decreed the suit except with regard to the claim for mesne profits which was not pressed. It dir ected the defendants to remove all the superstructures within six months at their own cost. It also declared that in case the defendant failed to remove the superstructures, the plaintiff could have them removed and recover the cost of doing so from the defendants. Against this decree three appeals were filed by different sets of defendants, which the District Judge of Chittagong disposed of by one judgment. He dismissed the plaintiff's suit in toto. But this Court allowed the second appeal filed by the plaintiff reversed the decision of the learned District judge and restored the judgment and decree of the learned Subordinate Judge. The result is that according to the decree of this Court, the present petitioners have to remove the superstructures. The plaintiff had valued his claim in the suit at Rs. 2,100 ; but in the application before us the defendants contend that the superstructures are worth more than Rs. 50,000 and that, therefore, under the 2nd paragraph of section 110 of the Code of Civil Procedure they are entitled to appeal to the Federal Court. This application is opposed by the plaintiff opposite party on two grounds, viz., (1) that as the claim in suit which related only to the site was below Rs. 10,000. it cannot be said that the decision of this Court involves directly or indirectly a claim to the superstructures and therefore, even if the structures were worth Rs. 10,000 or above, leave to appeal cannot be granted under section 110 of the Code of Civil Procedure and (2) thus in fact the superstructures are not worth Rs. 10,

000. As regards the latter contention, the finding called for from the lower Court is definitely to the effect that the super structures were worth Rs. 50,000 on the date of the decree of this Court and that they were certainly worth more than Rs. 10,000 ‑on the date of the decree of the trial Court. No objection to this finding was taken, and we accept it. The only question for determination, therefore, is whether the fact that under the decree the superstructures have to be removed entitles the petitioners to appeal to the Federal Court even though the value of the site is below Rs. 10,

000. The argument of the learned Advocate for the petitioners is that as the judgment and decree of this Court from which they propose to appeal direct the removal of the superstruc tures which are worth more than Rs. 10,000, the decision from which they wish to appeal does involve directly or indirectly their claim to maintain the superstructures as they are, their case being that they have acquired a right of occupancy. On behalf of the plaintiff opposite party it is contended that as the claim in the suit did not include the superstructures, their value cannot be taken into consideration. Several decisions were cited on both sides, but, in our opinion, reference need be made only to the case of Dhanna Mal and others v. Rai Sahib Lala Moti Sagar A I R 1923 Lah. 286, relied on by the learned Advocate for the opposite party and to the case of Maneklal Mansukhbhai v: Hormusji Amshedii A I R 1945 Bom. 113, cited on behalf of the peti tioners. In those cases as in the present case the value of the property to which the plaintiff had laid claim was below Rs. 10,000, but the value of the‑ superstructures which the defendants were asked to remove was above Rs, 10,

000. In the Lahore case the suit was for ejectment of the defendants from a site valued at Rs. 300 and for recovery of Rs. 1,700 being the rent due for seventeen months at the rate of Rs. 100 per mensem. The value of the superstructures was estimated in the course of the trial at Rs. 23,479 and odd and the decree sought to be appealed from gave the applicants, i.e., the defendants, the choice of removing all the superstructures or accepting a sum of Rs, 23,400 as their value. The contention of the plaintiff was that it was the value of the subject matter of the suit that was material. In accepting this contention, it was observed thus "At the same time we are unable to see that the subject -matter of the suit in the present instance was other than involved in the decision of the question whether the appli cants were permanent tenants‑of the site, or mere tenants at will. Nor are we able to see that the decree of this Court involved directly or indirectly any claim or question to or respecting property of the value of Rs. 10,000 or upwards. The plaintiff in this case laid no claim whatever to the buildings on the site. Indeed, his prayer was that the said buildings should be removed. The matter in dispute between the parties was solely the nature of the tenancy of the site ..The second paragraph meant that the suit must, to satisfy its conditions, involve rights and claims to property which rights and claims were worth Rs. 10,000 or upwards, not that the rights affected properties whose value was Rs.10,000 or more." Referring to this decision the judges of the Bombay High Court in Maneklal Mansukhbhai's case (Supra) observed that they were unable to see why on the facts of the Lahore case, it did not fall within paragraph 2 of section 110 of the Code of Civil Procedure. Their view was that under that paragraph a certificate could be granted if the decree or final order indirectly involved a question respecting property of the amount or value of Rs. 10 000 or upwards. There, the plaint had been valued at Rs. 1,500, but the value of the superstruc tures which the decree directed to be removed was more than Rs. 10,

000. The learned Judge who delivered the judgment of the Bench observed :‑ . As I have said before, the value of the claim so fat as the unsuccessful litigant is concerned is the value of the loss to the property which he would possess, and if that amount is more than Rs. 10,

000. I fail to see why his case should not fall under that paragraph. In the early part of the judgment occurs the following pas sage taken from Allan v. Pratt, 13 A C 780 :‑ .the judgment is to be looked at as it affects the interests of the party who is prejudiced by it, and who seeks to relieve himself from it by appeal. If there is to be a limit of value at all, that seems evidently the right principle on which to measure it. The person against whom the judg ment is passed has either lost what he demanded as plaintiff or has been adjudged to pay something or to do something as defendant. It may be that the value to the defendant of an adverse judgment is greater than the value laid by the plaintiff in his claim. If so, which was the case in (1873) 15 Moore P C 181 it would be very unjust that he should be bound, not by the value to himself but by the value originally assigned to the subject‑matter of the action by his opponent. We are in agreement with the view of, the learned judges of the Bombay High Court that the language of paragraph 2 of section 110 of the Code of Civil Procedure is not violated by the application of the principles enunciated in Allan v. Pratt (supra). It appears to us that the learned judges of the Lahore High Court viewed the case from the stand‑point of the plaintiff but as pointed out in Allan v. Pratt, the same property may be of greater value to the defendant than it was to the plaintiff. In the present case the plaintiff claims rent and the right to eject the tenants. It does not matter to him what happens to the superstructures. But when the plaintiff's claim is allowed the defendants who claim the right to stay on the land with the superstructures, will have to lose not only the land but also the superstructures and his loss would be the value of the superstructures. There seems to be no reason why the words of the second clause of section 110 of the Code of Civil Pro cedure should be confined only to the claim of the plaintiff. We. therefore, agree with the decision in Maneklal Mansnkhbhai's case (Supra) and disagree with that in Dhanna Mal's case (Supra). The decision of this Court was one of reversal and in view of the finding of the lower Court regarding the value of the superstructures which has been accepted, we consider that this is a fit case for granting leave to appeal to the Federal Court. The application is, therefore, allowed with costs. ELLIS. J.‑--I agree. A. H. Leave granted.