Decided on March 18,1953

Palagani Balarami Reddy Appellant
Shaik Masthan Saheb Respondents


Govinda Menon, J. - (1.) THERE is no dispute that the wakf in question relates to property worth more than Rs. 50,000 as the same has been conceded by both the parties. But the question that has been decided in the second appeal is with respect to the trusteeship of the Mobideenia mosque in the village of Dama -ramadugu, Kovur taluk, Nellore district. We have found that the plaintiff -respondent is entitled to the trusteeship and the subject matter of the appeal to the Supreme Court is whether the plaintiff has the right to function as such. Such being the case, it cannot be said that the subject matter of the suit is capable of valuation and as such para (1) of Section 110, Civil P. C. and Clause (I) (a) of Article 133 of the Constitution cannot, in strict terms, apply. But what is contended for the petitioner is that in the plaint the relief asked for includes, in addition to the prayer for a declaration that the plaintiff is a validly appointed trustee of the Moheedeenia mosque and that the appointment of the defendant was void and inoperative, another prayer for the recovery of possession of the properties endowed to the mosque and the sums of money which may be found due from the defendant on a proper rendition of accounts by him for the period of his possession of the properties. Under these circumstances we are asked to say that the possession of property worth about Rs. 50,000 is the value of the subject matter of the proceedings and since the judgment and decree of the High Court have reversed the judgment and decree of the lower appellate Court, the petitioner is entitled to a certificate for leave to appeal to the Supreme Court of India.
(2.) IN our opinion this contention cannot be accepted for, though there is an ancillary prayer for recovery of possession of properties and sums of money on a rendition of accounts, and a prayer for a permanent injunction restraining the defendant and his men from interfering with the plaintiff's right to manage the mosque and its endowments, still the essential subject matter of the suit is the post of trusteeship of the mosque and nothing more. If it is found that the plaintiff is the validly appointed trustee, then automatically the other reliefs follow. If, on the other hand, the plaintiff's title as trustee is negatived, then the other reliefs cannot be granted. Therefore we have to take it that the real relief asked for is with respect to trusteeshio and if that is so, Clause (I) (a) of Article 133 of the Constitution cannot be invoked. But it is contended that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of that value and since there is a reversing judgment even if the appeal does not involve any substantial question of law, still the appellant is entitled to be granted leave. Clause (I) (b) of Article 133 of the Constitution is in 'pari materia' with para 2 of Section 110, Civil P. C. and that statutory provision has been the subject of construction in this Court. The trend of decisions of this Court has been to the effect that para (1) applies to cases where the decree awards a particular sum, or property of a particular value or refuses that relief. That is, where the subject matter of the dispute is of a particular value. In - - 'Subramania Aiyar v. Sellammal',, AIR 1916 Mad 985 (A), Srinivasa Ayyan -gar J. observes as follows : "In my judgment the first clause applies to cases where the decree awards a particular sum, or property of a particular value or refuses that relief (i.e.) to cases where the object matter in dispute is of a particular value. In fact the words 'objects in dispute' are used in the provisions relating to appeals from Guernsey. If the operation of the decision is confined only to the particular object matter, Clause (2) does not apply, and unless the case satisfied the conditions in Clause (1) there is no right of appeal. If the decision beyond awarding relief in respect of the particular object matter of the suit affects rights in other properties, Clause (2) would apply; also if the matter in dispute is one which is incapable of valuation as in the case of easements, Clause (2) may apply." This decision has been approved by the Privy Council in - - 'Mangamrna v. . Where the plaintiffs brought a suit for declaration of their right to have their lands irrigated from certain tank and from a channel and the finding of the lower Courts was that the detriment or injury caused to the plaintiffs by their being deprived of this source of irrigation was negligible and was less than the amount fixed in Section 110, Civil P. C. though the lands irrigated were worth more than that sum, it was held in - - 'Appala Raja v. Rangappa Naicker', : AIR 1918 Mad 632 (C), that the case did not satisfy the requirements either of the first or the second clause of S. 110, Civil P. C. as regards the value of the subject matter of the suit and hence no leave shall be granted. Sadasiva Aiyar J.'s observations at page 14 of the report are also pertinent. He says : "But in construing the word 'property' in para 2, we cannot lose sight of para 1 of Section 110 to which the second is an alternative. I think 'property' in para 2 of Section 110 means rights in property inferior to full ownership where such inferior rights alone are the subject matter in dispute. Hence para 2 means that the suit must, to satisfy its conditions, involve rights and claims to property which rights and claims are worth Rs. 10,000 and upwards." We may also refer to the observations of Page C. J. in - - 'U Ba Oh v. M. A. Razak',, AIR 1935 Rang 113 (D), where the learned Judge is of opinion that if it is impossible to estimate in money or by any pecuniary standard, the loss or detriment which the applicant has suffered by the passing of the decree from which it is sought to obtain leave to appeal, then Section 110 would not apply. Though our attention was invited to cases where the discussion centred round the question as to whether in suits for redemption the subject matter of the dispute is the value of the property which had been mortgaged or whether it is the amount of the mortgage money, and the decision was that the subject matter is the mortgage money for which the security was given and not the value of the property, we think that it is only by analogy that the principles laid down in such cases can be applied here. See - - 'Venkataswami v. : AIR1951Mad723 (E) and - - 'Sati Bala Dasi v. : AIR1949Pat448 (F). A Bench of this Court consisting of Satyanarayana Rao and Chandra Reddi JJ. in C. M. P. No. 9899 of 1949 (Mad) (G) has discussed, AIR 1916 Mad 985 (A) and other cases which followed the same and a similar conclusion was arrived at. It is clear that the subject matter of the dispute is the trusteeship and not any property and therefore para (1) of Section 110, Civil P. C. and Sub -clause (a) of Article 133(1) of the Constitution also would not apply. We do not think that the case involves any substantial question of law.
(3.) THIS petition is not maintainable and is therefore dismissed.;

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