J.P. Jain, J.
1. Civil Suit No. 11 of 1959 filed by Prabhu Narain respondent No. 1 has been decreed by the Civil Judge. Jaipur City, and upheld by the Additional District Judge No. 3, Jaipur City, (Civil Appeal No. 48/1970). The first and the second defendants have come in second appeal in this court.
2. On 3-1-59 Prabhu Narain instituted the suit under appeal in the court of Civil Judge, Jaipur City, against Nand Kishore. his father Radha Vallabh and four others who are tenants in the suit property. The suit property is a haveli facing North situate in Surajpole Bazar, Chowkari Topkhana Hazuri. Jaipur. This house originally belonged to one Har Bux who died on 23-9-1949. One Govind Nara-in obtained a decree against Prabhu Narain as legal representative of Har Bux. He got the suit haveli attached in that decree. A claim was put up by Nand Kishore, who was at that time minor, through his father, Radha Vallabh under Order 21, Rule 58, Civil P. C. It was claimed that the suit property was in his possession and he was son of deceased Har Bux. This claim was allowed by the Execution Court on 15-7-50. The plaintiff then instituted a suit on 14-7-51 under Order 21. Rule 63, Civil P. C. in the court of Munsif (East). Jaipur seeking declaration that he was the adopted son of Har Bux, and the suit property was liable to be attached and sold in the decree against him obtained by Govind Narain This suit was later on found to be under-valued and it was returned to be represented in the proper court. The suit was then filed in the court of Civil Judge, Jaipur, which was later on transferred in the court of Civil Judge, Jaipur District. That suit was decreed on 31-7-54 and it was held that Prabhu Narain was the adopted son of deceased Har Bux and the property could be attached and sold in the decree against him which was obtained by Govind Narain. The appeal on behalf of Nand Kishore was dismissed on 16-12-1957. There was a second appeal in the High Court. This appeal was pending in the High Court when the present suit was filed. According to the plaintiff the limitation to recover possession was about to run out and as such he filed the present suit without waiting for the final decision of the High Court. It is no longer in dispute that Nand Kishore's appeal was dismissed by the High Court as well on 30-1-63. It was also claimed by the plaintiff that Radhey Shyam. defendant No. 3, Satya Narayan defendant No. 4, Madan Lal defendant No. 5, and Allanoor defendant No. 6, were the tenants in some portions of the suit property, and defendant No. 1 had recovered during six years preceding the institution of the suit Rs. 360 @ Rs. 5 per month from each one of them. The defendant Nand Kishore was also alleged to be in possession on some part of the suit property. Plaintiff claimed damages for use and occupation of that part of the property @ Rs. 20 per month. He thus claimed Rs. 2.880 as mesne profits from the defendants Nos. 1 and 2. Besides he prayed for perpetual injuction against the defendants Nos. 3 to 6 not to pay rent henceforward to the defendants Nos. 1 and 2.
3. Nand Kishore, the principal defendant resisted the suit by his written statement dated 17-12-1959. It was contended by him that Prabhu Narain was not the adopted son of Har Bux nor was he in fact adopted. He admitted the earlier proceedings relating to Order 21. Rule 58, Civil P. C. and eventual suit proceedings at the instance of Prabhu Narain under Order 21, Rule 63, Civil P. C He however submitted that the appeal was pending in the High Court and as such the matter was subjudice. He denied plaintiff's claim to the recovery of possession and mesne profits. It was also pleaded that the plaintiffs' suit for mesne profits for six years is not within time. He submitted in para 7 of the written statement that the suit has been undervalued. By way of additional pleas he reiterated that he was the adopted son of Har Bux. He referred to the decree dated 1-3-1948 which he obtained against Har Bux declaring that he was the adopted son of Har Bux. Reference of adoption deed dated 15-3-48 was also made. He further pleaded that the first storey of the house on the death of Har Bux was not fully constructed. He made improvements, got the house plastered, the floor done, and got the roof put up. He is also alleged to have constructed a bath-room, a lavatory, and a tin shed in the second storey. According to him the valuation of the suit property in 1951 was Rs. 4951/15 and its valuation in 1959 when the suit under appeal was filed, was Rs. 12,387/2/- as such there is encumbrance of Rs. 7,435/3/- on the suit property and without payment of the same the plaintiff's suit is not maintainable.
4. Radhavallabh also filed his written statement on the same lines. The tenants namely defendants Nos. 3 to 6 also filed the written statements. They alleged that the plaintiff is not entitled to recover any rent from them. According to them Nand Kishore is the adopted son of Har Bux and he admitted them to tenancy. He alone could recover the rent from them.
5. On these pleadings learned trial Judge framed the following six issues on 21st August, 1963:--
(1) Whether the plaintiff is entitled, to get the mesne profits as detailed in para 7 of the plaint. If so from whom? (P).
(2) Whether the valuation of the property in suit is more than Rs. 10.000/- and the suit is not cognizable by this Court. (D).
(3) Whether the suit is barred under Order 2, Rule 2. C.P.C.?
(4) Whether the defendant No. 2 at the time of minority of defendant No. 1 made constructions, repairs as detailed in para 13 of the additional pleas of written statement, if so, whether there is a charge of Rs. 7,435/3/- on the suit property, and the plaintiff cannot get possession over the suit property, without payment of the said amount?
(5) Whether the defendant is in adverse possession of the property in dispute?
(6) Relief.
6. Issue No. 2 was decided as preliminary issue on 24-5-1972(?) The valuation given by the plaintiff was accepted by the Judge and he accordingly held that he could try the suit. After trial the learned Judge decided the other issues in favour of the plaintiff and decreed the suit by his judgment dated 30-9-66. He ordered the recovery of possession of the suit property to the plaintiff. He, however, allowed mesne profits only to the extent of Rs. 1,368. A sum of Rs. 219/14/- was allowed to the defendant as price of some land spent by him. Thus the decree passed in favour of the plaintiff was for Rs. 1148/2/-. He also granted injunction against the defendants Nos. 3 to 6 directing them not to pay the rent to the defendants Nos. 1 and 2, Defendants Nos. 1 and 2 were also restrained from realising the rent of the suit property from the tenants. This decree was challenged in appeal. The case came before the learned Additional District Judge No. 3. Jaipur City, for disposal. The learned lower appellate Court reversed the finding on issue No. 2. It was held that the valuation of the suit was more than Rs. 10,000. But placing reliance on Section 11 of the Suits Valuation Act and the decision of the Supreme Court in Kiransingh v. Chaman Paswan, AIR 1954 SC 340, he held that there was no prejudice caused to the appellants and there being enough material to decide the case, he decided the appeal on merits. Other contentions raised by the appellants did not weigh with the appeal Judge and accordingly he dismissed the appeal on 21-4-1973. This decision is the subject-matter of appeal in this Court, which has been filed by Nandkishore and his father Radhavallabh. Besides Prabhoo Narain, only Madan Lal and Allanoor, who were defendants Nos. 5 end 6 have been impleaded in the appeal. Radhey Shyam and Satya Narayan have not been impleaded, nor have they filed any appeal against the decree. On behalf of the appellant Mr. D.D. Patodiya addressed this-court at length. Mr. S.C. Bhandari represented the case of Prabhu Narain respondent. I also permitted Mr. Datt to give rejoinder in answer to the arguments of Mr. Bhandari.
7. On the basis of the finding of the learned lower appellate Court on issue No. 2 it has been vehemently argued that the Court of Civil Judge had no jurisdiction to try the suit. Reference was made to the provisions of Section 11 of the Suits Valuation Act, 1887, which corresponds to Section 49 of the Rajasthan Suits Valuation Act. There is no controversy between the parties that on the date of the suit, the Suits Valuation Act, 1887, was applicable. Mr. Patodiya urged that the plaintiff under-valued the suit and an objection to that effect was raised at the earliest possible opportunity in the written statement and as such the Civil Judge was not competent to hear and try the suit. On the other hand, it was submitted by Mr. Bhandari that even in a case where an objection has been raised in the court of first instance before settlement of the issues, the appellate Court has still to be satisfied that under-valuation has prejudicially affected the disposal of the suit on its merits. Attention was also invited to Sub-section (2) of Section 11, which lays down that if the objection was taken in the manner mentioned in Clause (a) of Sub-section (1). but the Appellate Court is not satisfied as to both the matters mentioned in Clause (b) of that subsection and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the court of first instance or lower Appellate Court. On having given my careful consideration to the rival contentions, I am of the opinion that the construction put on Section 11 of the Suits Valuation Act by Mr. Patodiya does not appear to be sound. Section 11 of the Suits Valuation Act reads as follows:
'Section 11 Procedure where objection is taken on appeal or revision that a suit or appeal was not properly valued for jurisdictional purposes--(i) Notwithstanding anything in Section 578 of the, Code of Civil Procedure, an objection that by reason of the over-valuation or under-valuation of a suit or appeal a Court of first instance or lower appellate Court which had no jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an Appellate Court unless-
(a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower Appellate Court in the memorandum of appeal to the court, or
(b) the Appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit or appeal was over-valued or under-valued, and that the overvaluation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.
(2) If the objection was taken in the manner mentioned in Clause (a) of Subsection (1) but the Appellate Court is not satisfied as to both the matters mentioned in Clause (b) of that Sub-section and has before it the materials necessary for the determination of the other grounds of appeal 'to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower Appellate Court.
(3) If the objection was taken in that manner and the Appellate Court is satisfied as to both these matters and has not those materials before it, it shall proceed to deal with the appeal under the rules applicable to the Court with respect to the hearing of appeals; but if it remands the suit or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its order to a Court competent to entertain the suit or appeal.
(4) The provisions of this section with respect to an Appellate Court shall, so far as they can be made applicable, apply to a Court exercising revisional jurisdiction under Section 622 of the Code of Civil Procedure or other enactment for the time being in force.
(5) This section: (* * *) shall come into force on the first day of July 1887.'
8. It is abundantly clear from this provision that where the objection as to jurisdiction has not been taken in the Court of first instance objection to that effect in the Appellate Court shall not be entertained at all. In cases where objection has been taken before the framing of issues in the Court of first instance, but the merits of the case have not been affected, the appellate Court has to ignore the objection and proceed as if there was no defect of jurisdiction. Conditions of Clauses (a) and (b) have to be satisfied subject of course to Sub-section (2) of Section 11. If necessary material is not on record for determination of other grounds of appeal, the appeal shall have to be disposed in accordance with Sub-section (3). Learned counsel for both the parties referred to the Supreme Court decision in Kiran Singh's case (AIR 1954 SC 340). In this appeal before the Supreme Court the question as to the construction of Section 11 of the Suits Valuation Act was involved. Venkatarama Ayyar J.. who spoke for Court, at the outset, referred to the fundamental principle well established that a decree passed by a court without jurisdiction is a nullity and that its validity 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, when it is in respect of the subject-matter of 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. After having dealt with the general principles governing the matter, his Lordship addressed himself to the question as to the effect of Section 11 of the Suits Valuation Act on this position in this context, it was observed :
'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 overvaluation or under-valuation, should not be entertained by an appellate Court, except as provided in the section.........'
The Supreme Court pointed out that reference to Section 578 (now Section 99) Civil P. C. in the opening words of the section, is significant. That section provides 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. 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 under-valuation. It was observed that :
'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 undervaluation shall not be entertained by an Appellate Court except in the manner and to the extent mentioned in the section. It is self-contained provision complete in itself, and no objection to jurisdiction based on over-valuation and under-valuation can be raised otherwise than in accordance with it.'
8-A. His Lordship again observed:
'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 or 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, C.P.C. and Section 11 of the Suits Valuation Act is the same, namely, that when 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.'
9. The Supreme Court also took notice of word 'or'' appearing between Clauses (a) and (b) and in this connection it was observed :
'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 pliantiffs 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(1)(b) to raise the objection for the first time in the appellate Court, even then, the requirement as to prejudice has to be satisfied,.........''
10. In Sat Paul v. Jai Bhan Ananta Saini, AIR 1973 Punj & Har 58, the learned Judge dealing with the case held that where in a case the plaintiff preferred an appeal before Senior Subordinate Judge on the basis of valuation that was put by him on the plaint and not on the valuation as determined by the trial Court with the result that in entertaining the appeal the Judge exercised jurisdiction over it by reason of under-valuation, it was held that no objection to jurisdiction of the Court could be taken unless the failure of justice was shown to have resulted from such exercise of powers.
11. Mr. Patodiya referred to Sureshkumar v. State of Madhya Pradesh. AIR 1975 Madh Pra 30. This was a revision application which arose out of a suit instituted in the court of Civil Judge Class II, Gwalior, the limit of whose pecuniary jurisdiction was Rs. 5,000. The trial Court passed a decree for declaration and injunction against the defendant. On appeal the learned Additional District Judge Gwalior found that the suit was undervalued and it should have been Rs. 10,000. The appellate Court therefore set aside the judgment and decree of the trial Court and remanded the suit to the Civil Judge Class I, Gwalior to try the suit afresh. The plaintiff went in revision. The decision in Kiran Singh v. Chaman Singh, (AIR 1954 SC 340) was referred to. The learned Judge while observing that a defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action striking at the very authority of the Court to pass any decree, cannot be cured even by consent of parties, conceded that defect of jurisdiction has to be considered subject to the provisions of Section 11 of the Suits Valuation Act He then observed:
'Section lays down two exceptions; one of them is: unless specific objection was taken in the trial Court. In the present case a specific objection was taken in the trial Court in paragraph 12 of the written statement and an issue was also framed on that objection. (Issus No. 4). That being so, Section 11 of the Suits Valuation Act is out of the way.'
12. It is quite evident that the learned Judge did not consider the second exception contained in Section 11(1)(b) and Sub-section (2) of the Act. With great respect to the learned Judge, I am unable to accept this decision as an authority for the interpretation of Section 11.
13. In view of the law laid down by their Lordships of the Supreme Court in Kiran Singh's case (AIR 1954 SC 340) it is difficult to accept the contention of Mr. Patodiya that on the facts of the case, an objection as to under-valuation having been raised in the court of first instance at the earliest possible opportunity, the appellate Court, irrespective of prejudice, was bound to hold that the suit ought not to have been tried or heard by the trial Court.
14. This now brings me to the question if the appellants have been prejudicially affected by the disposal of the suit. The learned lower appellate Court held that no prejudice was caused to the appellants. In this regard the learned counsel for the appellants canvassed before me that the appellants have been prejudiced for two reasons; firstly if the trial had taken place in the Court having pecuniary jurisdiction of more than Rs. 10,000 they would have had a right to come in first appeal before the High Court and in the event of dismissal of appeal, they could also go in for special appeal before the Division Bench; secondly, the defendants could raise the plea that the finding relating to the adoption of the plaintiff by Har Bux in the earlier suit did not bind them by the principle of res judicata. if the case had been tried by the Senior Civil Judge or Additional District Judge having pecuniary jurisdiction of trying suits of more than Rupees 10,000. It could be urged that the former Court was not competent to hear the present suit.
15. As regards the first contention there appears to be no substance. In Kiran Singh's case (AIR 1954 SC 340) before the Supreme Court (1) it was argued that by reason of under-valuation their appeal was heard by a court of inferior jurisdiction while they were entitled to be heard by High Court on the facts. It was contended 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. In this respect it was observed.
'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 subordinate court. The law does provide an appeal against that judgment to the District Court, and the plaintiffs have exercised that right. Indeed, the under-valuation 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 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.'
This decision concludes the matter that a change in the forum of appeal is not by itself a matter of prejudice within the meaning of Section 11 of the Suits Valuation Act. The facts in the present case bearing on this question are similar.
16. On behalf of the appellant reliance has been placed on Mathura Das v. Jalal Din, AIR 1933 Lah 8, a decision of a Single Judge, and on Sheoraj Singh v. Mt. Phulbasa Kuer, AIR 1925 Oudh 561 a Division Bench decision. In the Lahore case the learned Judge observed:
'The hearing of an appeal by a Court of inferior jurisdiction must raise a presumption that the party concerned has been materially prejudiced by the hearing of the appeal by such Court.'
17. In the Oudh case dissenting from the Full Bench decision in Kelu Achan v. Parwathi Nethiar, AIR 1924 Mad 6 (FB) their Lordships held that the disposal of a suit on its merits is prejudicially affected under Section 11 of the Suits Valuation Act, when that disposal is made by a District Judge, when it ought to have been made by a Bench of two Judges of the Court of highest jurisdiction in a Province. This view is no longer good law, in view of the Supreme Court's decision in Kiran Singh's case referred to above (AIR 1954 SC 340). The Supreme Court approved the Full Bench decision in Kelu Achan's case.
18. That apart learned counsel for the appellant does not appear to have taken notice of the later decisions of the Lahore High Court in Allah Baksh v. Shivji Maharaj AIR 1939 Lah 451 and B. Kanhaiya Lal v. Hamid Ali, AIR 1940 Oudh 164. These decisions accepted the Full Bench view expressed by the Madras High Court in Kelu Achan's case.
19. Now adverting to the next contention that if the case had been tried by the Senior Civil Judge the defendants' plea that the plaintiff was not an adopted son of Har Bux, was open to them and they would not have been barred by the principle of res judicata. In the earlier suit which was instituted by the plaintiff a declaration was sought on the basis that Prabhu Narain was adopted son of Har Bux. This question was directly and substantially in issue before that court. This point was finally decided in favour of the plaintiff and it was held that it was Prabhu Narain who was the adopted son of Har Bux. In the present suit he claimed recovery of possession of the suit property which belonged originally to Har Bux on the ground that he was the adopted son of Har Bux and it was so held in the earlier proceedings arising under Order 21, Rule 63, Civil P. C. The suit was decreed by the trial Court and the appellate Court and the appeal before the High Court which was pending at the time of the institution of the suit under appeal, was dismissed on 30-1-63. In the written statement to the averments of the plaintiff in this regard. Nand Kishore admitted the decree having been passed against him and upheld by the District Judge in appeal. It was alleged that as the appeal in the High Court was pending, the matter was sub judice. In para.9 it was pleaded that as the second appeal is pending in the High Court, the present suit, which raises the same question as to the plaintiff's adoption to Har Bux, be stayed under Section 10, Civil P. C. till the High Court decides the appeal. He took the plea in para 5 that the appellate decree of the District Judge does not operate as res judicata as the second appeal in the High Court has been pending. From the pleadings. ,it is obvious that Nand Kishore did not raise the plea that he was not bound by the finding in the earliest suit. On the contrary, his plea has been that it is the decision of the High Court in appeal, (then pending before it) which could operate as res judicata.
20. It is not in dispute that the Civil Judge, who tried the earlier suit had the pecuniary jurisdiction to try cases upto the valuation of Rs. 10,000. The plaintiff valued the suit property at Rs. 6,400. mesne profits at Rs. 2,880 and for perpetual injunction at Rs. 100, thus the suit was valued at Rs. 9,380. The defendant Nand Kishore's pleading in this regard was that the value of the suit property was Rs. 12,387/2/-. The appellate Court while dealing with issue No. 2 did not accept the estimate of the property as given by the defendant. The two estimates Ex. A/2 of 1951 and Ex. A/5 of 1959 were relied upon. The learned appeal Judge observed:
'Thus the position is that after the preparation of the previous estimate Ex. A-2. three rooms were constructed which definitely must have costed (sic). Without incurring expenses these rooms could not have been constructed. So it is definite that the value of the property which was in the year 1951 had increased in the year 1959 when these rooms were constructed. Apart from this it is also in the evidence of the defendants that the value of the property had increased 1 1/2 times than that of 1951. So according to this evidence, the property which was valued at about Rs. 4951/15/- was of about Rs. 7,500 in the year 1959. It is correct that the defendants should have proved the value of the property. They have led evidence in this regard also. But the evidence is not worth reliable (sic) which I will discuss later on. So how much value of the property has increased after 1951 has not been established correctly but there is no doubt that on account of new construction the value of the property must have increased and if roughly taken then the value of the property in the year 1959 would be not less than Rs 7,500.'
21. From the discussion it appears, that the learned Judge accepted the estimate of 1951 as the admitted basis. He kept in view the alleged improvements, and the fact that the prices have appreciated, and then reached the figure roughly at Rs. 7,500. Adding to this, value of the mesne profits and for the relief of perpetual injunction he held that the valuation of the suit must be of more than Rs. 10,000 (Rs. 7,500 + Rs. 2,880 + 100). In view of the finding, he was of the opinion, that the Civil Judge, whose pecuniary jurisdiction was upto Rs. 10,000 had no jurisdiction to try the present suit.
22. On this premise, the submission made on behalf of the appellant is that the Court trying the former suit was not competent to try the present suit and therefore they are deprived to take the plea that the decision in the earlier suit regarding adoption does not operate as res judicate. Mr. Bhandari submitted that in order to determine whether a Court, which decided the former suit had jurisdiction to try the present suit, regard must be had to the jurisdiction of the court at the date of the former suit and not to its jurisdiction at the date of the subsequent suit. According to him if the present suit had been brought at the time the earlier suit was filed, the court trying the former suit was clearly competent to hear the present suit and this fulfils the requirement of Section 11, Civil P. C. He built this argument on the admitted case of the defendant that the market value of the property in 1951 was Rs. 4951/15. In the present suit mesne profits in the sum of Rs. 2,880 have also been claimed and prayed for. perpetual injunction has been asked for, thus it has been urged by the learned counsel for the respondent, if these amounts are added, the valuation of the suit remains much below Rs. 10,000. The Civil Judge, who tried the earlier suit, was well within his preliminary jurisdiction to hear the present suit. He also submitted that the value of the property if appreciated, whether on account of general rise in the value of the property or by making certain improvements cannot be taken notice of and would not affect the jurisdiction of that court. In support of this argument he has placed reliance on Gopinath Chobey v Bhugwat Pershad. (1884) ILR 10 Cal 697. Their Lordships were dealing with the construction of Section 13 of the Civil Procedure Code, 1882, which corresponds to Section 11 of the present Code. It was observed:
'We are of opinion that this construction of Section 13 is not correct. It is well known that in this country the value of landed property is increasing every day. A suit regarding a particular property may be, so far as the pecuniary value of it, properly cognizable by a Munsiff today, and ten years hence a suit for that property, having regard to its pecuniary value then, might not be cognizable by the Munsiff. But it would be unreasonable to hold, in a suit which might be brought ten years hence, that a decision between the same parties today passed by a Munsiff having full jurisdiction would not be res judicata ten years hence. The reasonable construction of the words 'in a Court of jurisdiction competent to try such subsequent suit' seems to us to be that it must refer to the jurisdiction of the Court at the time when the first suit was brought, that is to say, if the Court which tried the first suit was competent to try the subsequent suit if then brought. the decision of such court would be conclusive under Section 13, although on a subsequent date, by a rise in the value of such property or from any other cause, the said Court ceased to be the proper Court, so far as pecuniary jurisdiction is concerned, to take cognizance of a suit relating to that property.' (Underlinings are mine.)
23. Reliance has also been placed on a decision Jeevantha v. Hanumantha, AIR 1954 SC 9. It was observed that:
'It is unnecessary to go into the merits of the case because we think that the defendants have made out their plea of 'res judicata' and the decisions of the Courts below on this issue are erroneous. It is true that in order to make out a plea of 'res judicata' it is _ necessary to prove that the Court that tried the former suit was competent to try the present suit. There can be no question about it but it is also well settled that in order to determine whether a Court which decided the former suit had jurisdiction to try the subsequent suit, regard must be had to the jurisdiction of that Court at the date of the former suit and not to its jurisdiction at the date of the subsequent suit. If at that time such a Court would have, been competent to try the subsequent suit, had it been then brought, the decision of such Court would operate as 'res judicata' although subsequently by a rise in the value of the property that Court had ceased to be a proper Court, so far as regards, its pecuniary jurisdiction, to take cognizance of a suit relating to that very property.'
24. In Ram Ratan Lal v. Kashinath Tewari, AIR 1966 Pat 235, Jeevantha's case (AIR 1954 SC 9) has been followed, and it was held that in order to determine whether a court, which decided the former suit, had jurisdiction to try the subsequent suit, regard must be had to the jurisdiction of the court at the date of the former suit and not to its jurisdiction at the date of the subsequent suit. If at that time such a court would have been competent to try the subsequent suit, had it been then brought, the decision of such court would operate as 'res judicata'. although subsequently by a rise in the value of the property that court has ceased to be a proper court so far as regards its pecuniary jurisdiction to take cognizance of the suit relating to the very property.
25. There is no dispute that the subject-matter in the present suit is identical except that it was alleged in the written statement that some improvements have been made in the property. Here reference may be made to a Supreme Court decision in Ram Gobinda Daw v. Smt. H. Bhakta Bala Dassi, AIR 1971 SC 664 where their Lordships observed that the test of res judicata is the identity of title in the two litigations and not the identity of actual property involved in the two cases. The property in both the litigations in the case on hand is the haveli left by Har Bux. In the earlier suit the plaintiff Prabhu Narain claimed the property on the ground that he was the adopted son of Har Bux. Here as well he claimed recovery of possession of the property left by Har Bux on the same ground. No decision taking the contrary view has been cited before me.
26. After having considered these decisions referred to above I am clearly of the opinion that the Court trying the previous suit was competent to hear the present suit. The mere fact that there has been a rise in the value of the property either on account of inflation in prices or on account of some improvements made by the defendant would not prevent the former Court to hear the present suit, particularly in view of the fact that the value of the property was admittedly Rs. 4951/15/- in the year 1951 when the earlier suit was instituted.
27. Learned counsel for appellant placed reliance on the following decisions:
(a) Miseer Raghubardial v. Sheo Baksh Singh, (1883) ILR 9 Cal 439 (PC).
(b) Mst Gulab Bai v. Manphool Bai, AIR 1962 SC 214.
(c) Ram Dayal Singh v. Indrasen Kuer, AIR 1964 Pat 452.
28. The facts in the Privy Council case ((1883) ILR 9 Cal 439 (PC)), were that the first suit was 'brought by the appellant before the Privy Council, on 7th December, 1877 in the court of Assistant Commissioner for interest due on the balance of an interest account Rs. 1,665 giving in credit for the interest paid Rs. 2,475. In the defence it was alleged that the payment of Rs. 2,475 was not made only towards the interest but in part for principal it should have been so credited. The suit was finally dismissed. The present appellant filed another suit out of which an appeal before Privy Council arose for the principal amount of Rupees 12,000 and interest Rs. 2,475 due on the bond of 1875. The Deputy Commissioner, Sitapur, who tried the case, gave judgment for the balance of Rs. 4,790 only and interest thereon, holding the claim for Rs 12,000 is barred under Section 13 of the Civil P. C. On appeal the Judicial Commissioner upheld the decree. In this context their Lordships observed:
'The words 'Court of competent jurisdiction' used in Section 13 of the Code of Civil Procedure, include the meaning that the first Court must not have been precluded by the pecuniary limit of its jurisdiction from deciding the question raised in the other. The two courts must exercise such concurrent jurisdiction in regard to the pecuniary limit of their powers that the subject-matter of the second suit would not have been beyond the powers of the Court which disposed of the prior one.'
29. It was held that the issue as to the amount of principal due on the bond had not been heard and finally decided by a Court of competent jurisdiction within the meaning of Section 13. The first suit was for Rs. 1,665 for interest only. The principal not being then due, and the matter in issue was whether the interest was due. The second suit was for the principal amount.
30. Their Lordships further explained the meaning of the expression 'concurrent jurisdiction' :
'As to what is a Court of concurrent jurisdiction it is material to notice that there is, in India, a great number of Courts; that one main feature in the Acts constituting them is that they are of various grades with different pecuniary limits of jurisdiction; and that, by the Code of Civil Procedure a suit must be instituted in the Court of the lowest grade competent to try it............ In their Lordships' opinion it would not be proper that the decision of a Munsif upon (for instance) the validity of a will, or of an adoption in a suit for a small portion of the property affected by it, should be conclusive in a suit before the District Judge or in the High Court, for property of a large amount the title to which might depend upon the will or the adoption.'
31. In the case of Mst. Gulab Bai v. Manphool Bai, AIR 1962 SC 214. a question arose as to the meaning of the word 'suit' occurring in the clause 'in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised' of Section 11 of Civil P. C. Their Lordships of the Supreme Court discussed the legislative background and the earlier Privy Council decision and it was held that the word 'suit' in the context must be construed literally and it denotes the whole of the suit and not part of it or a material issue pending in it.
32. In Ramdayal Singh's case (AIR 1964 Pat 452) the earlier suit was for redemption, subject-matter of which was a small portion of area valued at Rs. 100 only and it was filed in the court of Munsif. The subsequent suit was for title and recovery of the possession of the entire area valued at Rs. 9,000. The learned Judge held placing reliance on the Supreme Court decision in Gulab Bai v Manphool Bai (AIR 1962 SC 214) that ' Munsiff's Court which decided the former suit had no jurisdiction to decide the subsequent suit.
33. The question that arises in the present case was not involved in any of the cases relied upon by the learned counsel for the appellants. He could not lay his hands on any decision taking a view different to the one expressed in Gopnath Chobey's case (1884-ILR 10 Cal 697). The same view has been taken by Mahajan J. in Jeevantha's case (AIR 1954 SC 9).
34. I am, therefore, of the view that the judicial interpretation of the expression competent to try such subsequent suit in Section 11. is the competency of the former court to try the subsequent suit, at the time, when the first suit was brought. Subject-matter of the 'suit in both cases is the haveli left by Har Bux. The fact that a Court in which the previous suit has been deemed is incompetent to entertain the present suit merely because the value of the property was since increased would not bar the application of the doctrine of res judicata. In this view or the matter I hold that the defendants-appellants have no case to urge that they are prevented to say that the decision in the earlier suit was not barred by res judicata. It therefore, follows that they are not prejudiced within the meaning of Section 11 of the Suits Valuation Act.
34-A. Another contention that has been raised on behalf of the appellant is that the present suit is barred under Order 2., Rule 2, Civil P. C. This controversy is the subject-matter of issue No. 3. The Courts below did not accept the plea, me basis of the argument is that in the earlier suit the plaintiff only prayed for a declaration that the property under attachment namely the suit haveli was liable to be attached and sold in the decree against mm. According to learned counsel the plaintiff could nave claimed recovery of possession in that suit, and since he had not done, Order 2, Rule 2, Civil P. C. comes in his way and it bars the present suit. Order 2, Rule 2 reads as follows :
' Rule 2 (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court.
(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes. any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) A person entitled to more than one relied in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs he shall not afterwards sue for any reliefs so omitted.
Explanation--For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.'
35. The real controversy centres round as to what was the 'cause of action' for the earlier suit. It is not disputed that the defendant Nand Kishore's claim under Order 21, Rule 58. Civil P. C. was allowed and the plaintiffs' suit was under Order 21, Rule 63, Civil P. C. It is no doubt true that the plaintiff was out of possession of the suit property but the question is whether he was bound to claim relief for recovery of possession. Order 21, Rule 63, Civil P. C. lays down that where a claim or an objection is preferred the party against whom the order is made may institute a suit to establish the right which he claims to the property in dispute, but. subject to the result of such suit, if any, the order shall be conclusive. Since the claim of the defendant Nand Kishore was allowed, the plaintiff Prabhu Narain, for the removal of that order, was bound to institute a suit to establish the right he claimed to the property in dispute. The period of limitation for this purpose is one year. It is thus manifest that the cause of action for a suit under Order 21, Rule 63, is the order passed under Order 21, Rule 58. Civil P. C. In Sawai Singhal Nirmal Chand v. Union of India, AIR 1966 SC 1068 their Lordships of the Supreme Court observed in para 9 as follows :
'In this connection, we ought to bear in mind that the scope of the enquiry under Order 21, Rule 58 is very limited and is confined to question of possession as therein indicated while suit brought under Order 21, Rule 63 would be concerned not only with the question of possession, but also with the question of title, Thus the scope of the suit is very different from and wider than that of the investigation under Order 21, Rule 58. In fact, it is the order made in the said investigation that is the cause of action of the suit under Order 21, Rule 63.'
36. It is no doubt true that a suit contemplated by Order 21, Rule 63, Civil P. C . is of a comprehensive nature and the words 'to establish the right' are wide enough to cover not only a mere declaratory suit but also one for consequential relief such as the recovery of the value of the property if it had already been sold, the recovery of possession or the enforcement of a mortgage. But the plaintiff is not bound to ask for a consequential relief. He may ask for a mere declaration of the suit and it cannot be dismissed as offending the proviso to Section 34 of the Specific Relief Act, 1963. If the defeated claimant asks for a bare declaration and succeeds, a subsequent suit for possession is not barred under Order 2, Rule 2, Civil P. C. The reason is obvious that the cause of action of recovery of possession is different than the one for filing the suit for declaration under Order 21. Rule 63, Civil P. C. In this view of the matter the contention raised on behalf of the appellants is devoid of merit.
37. Next it was argued that Nand Kishore came into possession of the suit haveli in the lifetime of Har Bux and he continued to be in possession after his death on 23-9-1949. According to his case he was adopted son of Har Bux. He also obtained a decree against him on 1-3-48 and after the said decree an adoption deed was also executed by Har Bux in his favour on 15-3-1948. According to him certain constructions were made ranging from May, 1951 to February, 1952 and in these improvements he incurred an expenditure of Rs. 7435/3/-. On these facts it was urged that he held the property in good faith and was entitled to the value of the improvements under Section 51 of the Transfer of Property Act. In the alternative it was argued that if the provisions of Section 51 of Transfer of Property Act are not applicable, he was entitled to the value of the improvements on the principle of justice, equity and good conscience. Reliance was placed on Karan Singh v. Budh Sen, AIR 1938 All 342 and a decision of this Court in Mst. Kesar v. Ram-chander, ILR (1957) 7 Raj 473. On the other hand, Mr. Bhandari learned counsel for the plaintiff-respondent submitted that no case of good faith has been made out in the pleadings, and Section 51. Transfer of Property Act has no application on the facts of the case. In addition to this, it was urged that Nand Kishore did not even plead that he spent Rupees 7,435/3/- in making the alleged improvements in the suit property. As a matter of fact he did not even claim that amount. It is no doubt true that Nand Kishore did not plead that he held the suit property in good faith and he made the improvements believing himself to be the absolute owner of the property. As regards improvements reference may be made to para 13 of his written statement. He did not specifically mention that he spent Rs. 7435/S/- in making the said improvements. From the case as set forth in his pleadings it was stated that in the year 1951 the market value of the property was Rs. 4951/15/- but according to the estimate in the year 1959 the value of the property was Rs. 12,387/2/-. I am not expressing my view with regard to the two estimates Ex. A/2 of 1951 and Ex. A/5 of 1959 but here I am only concerned to observe that he did not state that he incurred such and such expenditure for making the said constructions. What he said was that in view of the two estimates of 1951 and 1959 there is a charge of Rupees 74S5/3/- on the property and without payment of the said amount the suit is not maintainable. Mr. Bhandari is, therefore, right in his submission that the defendant Nand Kishore only worked out the figure of Rs. 7435/3/_ on the difference of the two estimates, and he did not allege what he actually spent in undertaking the alleged improvements. That apart, it has come in evidence that the suit property was attached by one Govind Narain in a debt due to him from deceased Har Bux with regard to which he obtained a decree against Prabhu Narain as legal representative of Har Bux. This attachment took place on 20-1-1950. Against this attachment claim was preferred by Nand Kishore. himself disputing the adoption of Prabhu Narain and claiming his own adoption to Har Bux. It was opposed by Prabhu Narain. Though the claim was allowed on 15-7-50 (order on record), yet Nand Kishore became aware that Prabhu Narain is one to contest the right to stay in the suit property. The suit for declaration under Order 21, Rule 63, Civil P. C. was instituted on 14-7-51 where each party claimed himself to be the adopted son of Har Bux. Though the suit was subsequently returned to be presented in the Court of Civil Judge but Nand Kishore came to know well of the allegations of Prabhu Narain. In these circumstances it cannot be said that Nand Kishore had reason to believe that he was the undisputed owner of the property. The case of good faith or being the bona fide owner of the property has no legs to stand.
38. Section 51 of the Transfer of Property Act reads as follows:--
'Section 51 When the transferee of immoveable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted there from by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement.
The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.
When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted there from, he is entitled to such crops and to free ingress and egress to gather and carry them.'
39. This provision applies in terms to a transferee who makes improvements in good faith believing himself to be an absolute owner of the property. Nand Kishore is not a transferee and I found above that he had no reason to believe that he was the absolute owner of the property. Constructions cannot, therefore, be said to have been done in good faith. He is not entitled to any value of the improvements either under Section 51 of the Transfer of Property Act and on principle of justice, equity and good conscience. This principle can only be invoked if Nand Kishore had acted in good faith. The case of good faith was neither pleaded nor proved rather it stands demolished. The decision relied upon on behalf of the appellants have no applicability to the circumstances of the case.
40. Again it was argued that under issue No. 4 the court should have allowed at least Rs. 7121/- to the defendant Nand Kishore before passing a decree for possession. Ex. A/3 a sanction by the Municipal Council, Jaipur and Ex. A/4 the approved plan were referred to in this connection. Evidence produced in the case by the parties bearing on this point was also read out before me Nanag Ram D.W. 7 is said to have undertaken the constructions under the agreement Ex. A/7. Receipts of various payments Ex. A/8, Ex. A/9, Ex. A/10 and Ex. A/11 were also relied upon. It was argued that the finding of the learned lower appellate Court is perverse on this point. I have noticed above that the defendant Nand Kishore did not actually plead as to what expenditure he incurred in making the alleged improvements. He has claimed the difference of the two estimates which are said to have been prepared by his witness Shanker Lal D.W. 2. The submission of Mr. Bhandari cannot be said to be with-out substance when he pointed out that (sic)actual cost must have been incurred (sic)the year 1951-52. when the improvements were actually undertaken. The fig-(sic)has been worked out by subtracting (sic)estimated value of 1951 out of the (sic)reciated value of the property in 1959. (sic)lag Ram admitted to have been work-(sic)on daily wages with the firm Radha (sic)llabh Sitaram, who were working as (sic)ntractors in 1951. Radha Vallabh father (sic)of Nand Kishore was a partner of that firm. It is not understandable why the (sic)firm of Radha Vallabh Sita Ram. which was working as contractors could not undertake the improvements itself and entrusted the work to Nanag Ram, its own employee, a boy of 20 years of age at that time. The learned court below has considered the entire evidence and found that the plaintiff Nand Kishore has not been able to prove that he spent Rupees 7435/3/- in making the alleged improvements. It came to the conclusion that the documents Ex. A/7. Ex, A/8, Ex. A/9, Ex. A/10 and Ex. A/11 were subsequently prepared. This is a finding of fact and supported by the evidence on record and facts and circumstances of the case. In view of the law laid down by their Lordships of the Supreme Court in V. Ramehandra Ayyar v. Ramalingam Chettiar, AIR 1963 SC 302 I find myself unable to interfere in this finding.
41. Yet another contention is with regard to mesne profits that have been allowed to the plaintiff-respondent. It has come on record that Radhey Shyam defendant No. 3, Satya Narayan defendant No. 4, Madan Lal defendant No. 5 and Allanoor defendant No. 6 were tenants in some part of the suit property. Their rent notes have been placed on record and they also admitted in their written statements that they were tenants and they were paying rent to defendants Nos. 1 and 2. According to the admitted rent notes the defendant Nand Kishore has been recovering Rs. 19 per month from them. It is also admitted that some part of the suit property has been in personal use and occupation of Nand Kishore and his father Radha Vallabh. The rental value of that portion has been estimated at Rs. 19 per month. Thus the mesne profits have been allowed at the rate of Rs. 38 per month. The plaintiff claimed mesne profits for six years. The court rightly held that he could only claim mesne profits for three years preceding the institution of the suit.
42. On behalf of the appellants it was argued that the suit property included the improvements made by defendant Nand Kishore as such mesne profits relating to that part of the property should not have been allowed. This argument does not stand much scrutiny. The defendant Nand Kishore has not been able to prove as to what improvements have been made by him and what has been actually spent by him in that regard. In the earlier suit Prabhu Narain was held to be the adopted son of Har Bux. This finding remained upheld up till the High Court. The possession of Nand Kishore was, therefore, wrongful. Being in wrongful possession he cannot be held to be in possession in good faith. He has been found not entitled to any compensation for the alleged improvements. As a trespasser he was not entitled to make any construction on the property left by Har Bux. He could at the most pray for the removal of the material but he did not do so. That apart, it is not possible to allow him to remove the material that he might have used in making the improvements as the improvements are not specific and cannot be severed with from the suit property. In this view of the matter the appellant's submission that the plaintiff, was not entitled to mesne profits, cannot be accepted.
43. No other point was argued.
44. In the result the appeal fails and it is hereby dismissed with costs.
45. On behalf of the appellants Mr. Datt prays for leave to appeal to Division Bench but it is refused.