P L D 1957 Dacca 566 (PLP)

RAHMAN, J.‑This is an application for leave to appeal to the Federal Court against a judgment and decree passed on an appeal by a Division Bench of this Court to which my Lord the Chief Justice was a party. That was First Appeal No. 50 of 1948 in this Court, and it arose out of a suit for the declaration of the applicant's occupancy raiyati right in 21' 17 decimal of nal lands of the worst quality situated at Mauza Char Fashon in the District of Bakarganj acquired by possession of the disputed lands for more than 12 years, for setting aside an ex parte decree in Title Suit No. 16 of 1940 obtained by the opposite party No. 1 in the present application against the applicants herein, and the opposite party No. 2 and for con firmation of the applicants' possession of the said lands. The said suit was originally valued at Rs. 2,100 on the basis of 15 times the net annual income derived therefrom; but on the Sheristadar's report the Court did not accept the said valuation, and directed the plaintiffs, applicants before us, to show cause why it should not be raised. Thereafter when the opposite party No. 1 also in her written statement challenged the correctness of the valuation, alleging that the proper value of the lands is Rs. 14,000, a specific issue was raised with regard thereto, and the same was taken up as a preliminary issue for hearing upon evidence. Although the order passed on the said issue has not been printed in the Paper Book of the appeal in this Court, the valuation appears to have been thereafter raised to Rs. 5,500, and as such, the appeal to this Court was also valued at the said sum of Rs. 5,

500. The trial Court dismissed the suit. In this Court also the appeal was dismissed, and the decree of the trial Court affirmed. It is against this judgment of affirmance that the applicants now seek to prefer an appeal to the Federal Court, and claim that they are entitled to do so; firstly because the value of the subject‑matter in dispute both in the Court of first instance and on appeal to the Federal Court is over Rs. 10,000, and substantial questions of law are involved; secondly, in any event, since substantial questions of law of great public and private importance are involved a certificate that the case is otherwise a fit one for appeal to the Federal Court, should be granted under clause (c) of section 109 of the Code of Civil procedure. On the question of valuation the contention of the learned Advocate, appearing for the applicants, is that even though the suit and the appeal to this Court were both valued for purposes of Court fees at Rs. 5,500 only, the applicants are not estopped from now saying that that was a mistake, and the real market value of the lands in dispute was Rs. 14,000 as stated by the opposite‑party No. 1 in her written statement. In support of this contention the learned Advocate has placed great reliance on a decision of the Calcutta High Court in the case of Radhika Nath Biswas v. Midnapore Zamindari Co. Ltd. (41 C WN 289). In that case the applicants for leave instituted a suit for a declaration of title, recovery of possession and mesne profits which was valued at Rs. 2,500 inclusive of mesne profit. The suit was decreed for Rs. 6,

348. So, the defendant therein preferred a first appeal to the High Court which allowed the appeal. Thereupon the plaintiff filed an application for leave to appeal to the Privy Council, and contended that as the approximate valuation of the lands in dispute of Rs. 2,100 given in the plaint was a mistake, and since the trial Court had found that the rents and profits of the lands were being realised at Re. 1 per bigha, the yearly rents and profits amounted to Rs. 1,

062. On that basis, calculating even at 12 times the yearly rent, the value of the lands came to over Rs. 10,

000. Furthermore, that since this error had, in fact, not caused any prejudice by compelling the defendants to resort to a forum other than the one to which they would have resorted, if the correct valuation had been put in the plaint, the applicants were not estopped from now showing that the real value of the subject‑matter in dispute for the purposes of appeal to the Privy Council was over Rs. 10,

000. S. K. Ghose and McNair, JJ., accepted the said conten tions, and upon a review of a large number of decisions came to the following conclusion: "On the other hand the trend of authorities is to the effect that, whether by way of estoppel or of res judicata, the Courts have considered whether the question of valu ation has been raised and decided at an earlier stage, and also whether the opposite party has been led to act upon such valuation, as for instance, by way of second appeal; or to put it another way, whether the party seeking to vary the valuation for the purposes of appeal to England is in the position of approbating and reprobating. Where this is the case, variation of value should not be allowed. But where this is not the case, a party should not be shut out from his right to appeal to England merely because of an erroneous valuation in the plaint." To this enunciation of the principles governing such cases, we cannot possibly have any objection, but we fail to see how this assists the present applicants in any way, for in the facts of the present case, we find that the question of valu ation was raised and decided at an earlier stage in the suit, and also that the applicants for leave did themselves adopt that valuation for the purposes of their appeal to this Court. To allow them, therefore, to vary the valuation to this stage would really amount to allowing them to approbate and reprobate. As already indicated the plaintiffs' valuation in the plaint was at once objected to by the Sheristadar of the trial Court, and the applicants were directed to show cause why the valuation should not be raised. Again when the opposite -party No. 1 also disputed the valuation, a specific issue was raised with regard thereto, and set down for hearing as a preliminary issue upon evidence. Then the valuation was raised from Rs. 2,100 to Rs. 5,

500. This valuation was accepted and acted upon by both the parties to the dispute‑the defendant No. 1 did not press her objection to the valuation at the trial, and the plaintiff's, acting upon the said valuation, preferred a first appeal to this Court. The plaintiffs, applicants for leave, cannot now, in these circumstances, be allowed to resile from that valuation and adopt for the purposes of the appeal to the Federal Court the valuation given by the defendant No. 1 in her written statement. In the case of Kristo Indro Saha and Issur Chunder Saha v. Huromonee Dossee (L R 1 I A 84), where a similar attempt made by the defendant‑respondent to object to the valuations given in the plaints of two suits, which were consolidated at the time the plaintiff prayed for leave, had succeeded in the High Court, their Lordships of the Judicial Committee observed that the defendant having herself adopted the said valuation for the purposes of her appeal to the High Court could not in the same suit object to that valuation at a letter stage, and granted special leave although the High Court had refused leave. Again in the case of Kumar Basanta Kumar Roy and others v. The Secretary of State for India in Council (14 C W N 872), Jenkins, C. J. and Doss, J. of the Calcutta High Court in similar circumstances opined that where "the endeavour was to lower the value of the subject‑matter, and this was made by one, who had adopted it for the purposes of the previous appeal preferred by him," he should not be allowed to do so, for "the principle that a party cannot approbate or reprobate governed." This view is also in accord with the opinion of their Lord ships of the Judicial Committee expressed in the case of Mutuswamy Jagavera Yettapa Naiker v. Vencataswara Yettia (10 M I A 313), that where in the Court of appeal below "both parties proceed on the footing, and upon the admission that the sum in dispute is under Rs. 10,000 the appealable amount to Her Majesty in Council, then, "it would not have been competent to the parties, in this state of circumstances, to turn round and say that the value was above Rs. 10,

000. In the case of Mahendranarayan Ray Choudhuri v. Janakinath Ray (I L R 58 Cal. 68), Rankin, C. J., and C. C. Ghose J. con sidered the last cited case as distinct authority "to show that the doctrine that a party cannot for this purpose approbate and reprobate applies to the case where he appeals to the lower appellate Court upon a valuation inconsistent with the valuation upon which he seeks a certificate enabling him to appeal to the Privy Council". On these authorities it is clear that in the present case too the plaintiff's having themselves appealed to the High Court upon one valuation cannot now be allowed to set up another valuation for the purposes of appeal to the Federal Court, and thus be allowed to both approbate and reprobate. In addition to this there is also the added circumstance that in this case the question of valuation was raised and decided as an earlier stage when the valuation was increased from Rs. 2,100 to Rs. 5,

500. We, accordingly, hold that the applicants for leave are not in the present case entitled to leave to appeal to the Federal Court under section 110 of the Code of Civil Procedure. The only question then is whether we can certify this to be a fit case for appeal to the Federal Court under clause (c) of section 109 of the Code of Civil Procedure. The learned Advocate for the applicants for leave contends that there are at least two substantial questions of law of general importance involved in the present appeal. His first point is that since in the present case the applicants claimed that they bad acquired an occupancy right in the lands in dispute, and such occupancy right was created by sections 20 and 21 of the Bengal Tenancy Act, an important question arises; whether such right can be said to be excluded by the special provisions of clause (b), subsection (1) of section 180 of the said Act, as has been held by this Court in the first appeal from which this appeal to the Federal Court is sought to be preferred. To start with, it was not the case of the appli cants in the plaint that they had acquired an occupancy right in the lands in dispute by virtue of the provisions of section 21 on account of their being under section 20, the settled rayats of that village. There is not only no suggestion even of such a case in the plaint, but the case actually made therein is that the plaintiffs have held the lands in dispute for more than 12 years continuously, and thus acquired an occupancy right therein. This rather suggests that the plaintiffs themselves sought to rely on clause (b) of subsection (1) of section 180 of the said Act. However, even if the plaintiffs had made out any such case in the plaint, as is now sought to be argued by the learned Advocate, that would not have made any difference, for, the lands were, as in fact they were, found to be by both the Courts on the admission of the plaintiffs' witnesses themselves, char lands, and had moreover not been in the continuous possession of the applicants for 12 years. Besides the provisions of section 180 have been expressly made applicable notwithstanding the other provisions contained in the said Act, and as such, the said section when applicable must clearly prevail over the other provisions on a plain reading of the section itself. This is so patent that this can hardly be said to be a substantial question of law, far less one which can be said to involve any question of general importance. The next point urged on behalf of the applicants was that the Division Bench of this Court had misconstrued clause (b) of subsection (1) of section 180 by holding that it was sufficient under that section to make a land a char land within the meaning of the said section, if it was situated in a char. It is pointed out that since under sub section (3) of the said section itself, it is possible for a char land to cease to be so the evidence that the land is in a char does not make it a char land. The learned Advocate urges that before section 180 can be attracted it must be shown that the land partakes of the nature of a char land, namely, that the land has come out of the bed of a river, and that it has not as yet been declared by the Collector to have ceased to be a char. This is an ingenious attempt to get over the difficulty that the finding that the lands are char lands is one of fact, and that too a concurrent one based on the evidence of one of the plaintiffs himself (P. W. 8) who in clear terms stated that "these are char lands," whilst the other plaintiffs and another witness stated that they are situated in a char. In these circumstances, we do not think that this raises even a question of law. No semblance even of a case has thus been made out for the grant of a certificate under clause (c) of section 109 of the Code of Civil Procedure either. This application is accordingly dismissed with costs, which we assess at five Gold Mohurs. AMIN AHMED, C. J.‑I agree. K. B. A. Application dismissed.