Decided on November 10,1953

Purna Chand Sahu Appellant
Chamra Bariha Respondents


MOHAPATRA, J. - (1.) THIS application for leave to appeal to Supreme Court has been filed by defendant No. 1 against the confirming judgment and decree dated 7 -11 -1949 of Sri P.C. Dey, Subordinate Judge of Sambalpur. The suit is for recovery of possession of sir lands attached to the Thikadari tenure of which defendant No. 3 was the ex -Thikadar and defendant No. 2 Lal Sadananda Singh is the Zamindar. Plaintiff No. 1 is the son of ex -Thikadar Raghu Bariha (defendant No. 3) and plaintiff No. 2 is the uncle of plaintiff No. 1 belonging to the junior branch of the family which had a common ancestor. The Zamindar (defendant No. 2) filed O. S. No. 16/33 in the Munsif's Court against defendant No. 3 alone for realisation of arrears of rent or Rs. 375/ - and odd and for ejectment of defendant No. 3. The suit was decreed on 5 -6 -33. Defendant No. 3 was directed to pay up the decretal dues within three months, failing which he was to be evicted. The present defendant No. 2 having taken delivery of possession of the suit lands in execution of that decree, and defendant No. 1, the appellant, having taken lease of these lands from defendant No. 2 and having entered upon the disputed lands, the present suit was brought mainly on the allegation that the previous decree was a personal decree against defendant No. 3 and the plaintiffs not having been represented in the previous decree, their interest in the suit lands, which are ancestral properties, is not affected. The plaintiffs, therefore, prayed for recovery of possession of the suit lands. The plaintiffs' further contention was that the Thikadar was not liable to be ejected solely on the ground of non -payment of rent.
(2.) THE trial Court granted relief in favour of the plaintiffs mainly on the ground that the previous decree was merely a personal decree against the ex -Thikadar (defendant No. 3) and it did not bind the interest of the present plaintiffs. It was found that the Thikadari interest along with the disputed sir lands were the ancestral properties of the parties. In appeal, the High Court confirmed the finding of the trial Court that the previous decree against defendant No. 3 was a mere personal decree and further that the properties in dispute are the ancestral properties and, as such, the interests of the plaintiffs were not affected by the previous decree. It is not disputed before us that the previous decree was a personal decree wherein the present plaintiffs were not represented at all. Furthermore, it is not disputed that the properties along with the Thikadari interest are the ancestral properties of the parties. This being the position, the case is fully covered by the decision of this Court in the case of - - 'Tirtha Naik v. Sadananda', AIR 1952 Orissa 99 (A). Some of the principles laid down in that case, after a review of the entire case law on the subject are that the Thikadari leases, either permanent or temporary but renewed or renewable from time to time, are, like any other property, capable of being possessed by a coparcenary; and that the joint family estate in such (Thikadary) leases can grow either if they are acquired with the joint family funds, or with joint family labour or is allowed to be treated as joint family property by the acquirer. When the manifest position in the case is that the disputed properties are ancestral and the other members of the family had interest, the same cannot be extinguished by execution of a mere personal decree against the ex -Thikadar. We are, therefore, of the opinion that it is not a fit case where leave can be granted nor is it a case where any substantial question of law is involved.
(3.) MR . B. N. Das, appearing for the appellant, contends, relying upon the affidavit filed on behalf of the appellant, that the suit properties will be valued at more than ten thousand rupees. Even if the valuation of the properties be more than ten thousand rupees, leave cannot be granted unless there is any substantial question of law involved, as the judgment of the High Court is one confirming the judgment and decree of the trial Court. We have found that the case does not involve any substantial question of law. But that apart, it is clear that the appellant will not be allowed to take up the position that the suit properties are valued at more than ten thousand rupees in the face of the fact that he, being the appellant before the High Court, had valued the properties in suit at Rs. 3000/ -. The principle is well established that a party cannot approbate and reprobate for the purpose of filing an appeal to the Supreme Court when he had taken advantage of the position by putting a much lower value of the properties in dispute in the lower appellate Court. It is to be noted here that the court -fees payable in the lower Court were on the marked value of the subject matter of the suit. We may here refer to a decision of Rankin C.J. in Division Bench of the Calcutta High Court reported in - - 'Mahendra Narayan v. Jankinath', AIR 1931 Cal 417 (B). The same view was also taken in the Bombay High Court reported in - - 'Anant Narayan v. Ramchandra Gangadhar', AIR 1918 Bom 224 (C).;

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