Decided on January 15,1960



- (1.)This is an application for grant of a certificate of fitness for appeal to the Supreme Court under Article 133(1)(a) and (b) of the Constitution. The dispute is between the defendants, Managing Committee, T.K. Ghosh Academy, Patna, and others, and the Palit family whose ancestors brought the school into existence. The case of the plaintiffs was that the school which was originally, no doubt, started by their ancestors in 1878 actually, was put under a trust which was created in 1950. In terms of the trust, the school authorities were liable to pay rental of Rs. 250/- per month, Reference was made to clauses 9 and 11 of the trust deed. The rent in question was not . paid and hence the present suit had to be instituted for recovery of rent. The amount claimed was a sum of Rs. 10,600/-. The defence was that the school was started in 1878 and continued to be in its present location all through and that the plaintiffs had no title to claim rent and that the defendants were entitled to occupy the building without having to pay any rent for it. The suit was decreed by the trial court. In appeal, however, to this Court the finding in regard to the construction of the trust deed and other matters was in favour of the plaintiffs but the suit was dismissed on the ground that notice under Section 106 of the Transfer of Property Act to be given by the landlord to the tenant before institution of a suit for eviction was not given in the present case, The petitioners are aggrieved lay the judgment of this Court in so far as the substantial finding in regard to the right of the plaintiffs to realise rent in terms of the trust deed is concerned.
(2.)Two questions have been raised by Mr. Prem Lall in support of the application. The first is that the value of the school building where the school is held together with the site on which it stands, admittedly, exceeds much more than Rs. 20,000/- and, the other, that the judgment of the High Court is a judgment of reversal in which it has been held that the suit of the plaintiffs has to be dismissed on account of a technical defect. Apparently, therefore, the appeal of the petitioners has been allowed but the petitioners are nevertheless not content with the judgment because they apprehend that the substantial finding in regard to the plaintiffs' right to claim rent and the consequent right to evict the defendants having been found in favour of the plaintiffs by this Court as well, the defendants have in substance been saddled with decree against them. The judgment of this Court, therefore, is one of reversal although on a technical point the suit has been dismissed. There was some argument before us at this stage as to the true nature of the judgment of reversal as contemplated under Article 133 of the Constitution and Sections 109 and 110 of the Code of Civil Procedure. In view of the Full Bench decision of this Court in Kanak Sunder Bibi v. Ram Lakhan Pandey on which reliance was placed by Mr. Prem Lall, Mr. K. D. Chatterji for the opposite party has conceded that the present judgment must be treated as a judgment of reversal.
Mr. Chatterji, however, has emphasised that the criterion of valuation in this case of the amount in dispute between the parties at the trial stage as also involved in appeal in the Supreme Court being Rs. 20,000/- or more is not satisfied, inasmuch as the suit of the plaintiffs was for a decree only for recovery of the amount of rent being Rs. 10,600/-, That amount being below a sum of Rs. 20,000/-, it should be held that the requirement of valuation is not fulfilled. Mr. Chatterji in this connection placed before us the plaint and the written statement of the parties. His contention is that in the plaint the simple plea of the plaintiffs was for recovery of the amount of rent and in the written statement also the defendants did not challenge the plaintiffs' title to the property. It is a limited question to the effect that they were not liable to pay rent. Thus, this is a suit between the landlord and tenant simpliciter and the value of the building, therefore, cannot be taken into consideration for the purpose of determining the amount in dispute between the parties either in the trial Court or in this Court in first appeal or for the purpose of the application for leave to appeal to the Supreme Court. It is true, no doubt, that the point is arguable as to what exactly was the plea of the defendants in substance. They did not claim, no doubt, any title to the building as such but they did claim that they had a right to occupy the house without the liability to pay any rent for it as the school had been occupying the building since 1878 and the plaintiffs who are the descendants of the founders, are not entitled to claim any rent and to ask the school authorities to shift to some other building as is purported to be done under the trust deed. They have challenged the trust deed as a mere device on the part of the plaintiffs to get rid of the T.K. Ghosh Academy School which is being run in that building since 1878, Mr. Prem Lall has referred to a number of decisions including Chittarmal v. Shah Pannatal Chandutal and T. D. Gopalan v. Commissioner (or Hindu Religious and Charitable Endowments, Madras . It is, no doubt, true that the facts of those cases are slightly different but the principle has been explained as to what is meant by the indirect value of the subject matter of a suit. Mr. K.D. Chatterji has conceded that if a claim is laid on behalf of the defendants to occupy the building without having to pay rent, it is a claim to the building itself. If that be so, undoubtedly Clause (a) of Article 133(1) of the Constitution will apply. In view of this Mr. Prem Lall has urged that the authority of the Allahabad High Court in Central Talkies v. Lala Dwarka Prasad is attracted to the facts of the present case. That too was a case where the tenant laid claim for possession over the building of a cinema-house which was worth considerably more than Rs. 20,000/-. It was held that, in the circumstances of that case, it did involve directly a claim in respect of a property worth Rs. 20,000/- and it satisfied the requirements of Sub-clause (b) of Article 133(1) of the Constitution. Their Lordships placed reliance on Kastur Bhai Mani Bhai v. Hiralal A.I.R. 1323 Bom. 23(1) and Maneklal v. Hormusji A.I.R. 1945 Bom. 113. Since the claim of the defendants was that they had a right to be in occupation of the house without the liability to pay rent to the plaintiffs and that the plaintiffs could not require the defendants to shift to another building as contemplated under the trust deed or even their liability to pay rent for a period of five years as provided in the trust deed, it must be held that the dispute between the parties does relate to the free and unfettered use and occupation of the property of the value exceeding a sum of Rs. 20,000/-.

4. In our opinion, therefore, it is a fit case in which certificate of fitness for leave to appeal to the Supreme Court must be granted to the petitioners under Article 133(1)(a) and (b) of the Constitution.

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