Manila[ Mohanlai v. Sardar Sayed

the Supreme Court by its Order dated the 29th October, 1951, from Judgment and Decree dated the 19th July, 1950, of the High Court of Judicature at Patna (Sinha and Rai JJ.) in appeal from Appellate Decree No. 1152 of Judgment : and Decree dated the 24th 1946 from day of May, 1946, of the Court of the 1st Additional District Judge in S. J. Title Appeal No. 1 of 1946 arising out of the Judgment and Decree dated the 27th November, 1945, of the First Court of Subordinate Judge at Monghyr in Title Suit No. 34 of 1944. S. C. Issacs ( Ganeshwar Prasad and . R. C. Prasad, with him) for the appellants. . B. K. Saran and M. M. Sinha for Nos. 1-9. respondents ·

#1954. April 14. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-This appeal raises a ques tion on the Suits the construction of section 11 of Valuation Act. The appellants instituted the suit out of which his appeal arises, in the Court of the Subor dinate Judge, Monghyr, for recovery of possession "of 12 acres 51 cents of land situated in mauza Bardih, of which defendants No~. 12 and 13, the second party, are the proprietors. . The allegations in the plaint the plaintiffs were admit ted by the second party as occupancy tenants on pay salami and put · into ment of a sum of Rs. 1,950 as possession of the lands, and that thereafter, the first party consisting of defendants Nos. 1 to 11 trespassed the crops. · The suit was on them . and carried away that on 12th April, 1943, forming ' - ( ·- ' \ . ...._ S.C.R. SUPREME COURT REPORTS 119 accordingly laid for ejecting defendants Nos. 1 to 11 arid for mes.ne profits, past and future, and it was valu ed at Rs. 2,950, made up of Rs. 1,950 being the value 'of the relief for possession and Rs. 1,000, being the past 'mesne profits claimed. Defendants Nos. 1 to 11 contested the suit. They in possession of the lands pleaded that they had been as tenants on batai system, sharing the produce with the landlord, from fasli 1336 and had acquired occu pancy rights second party had no right to settle them on the plaintiffs, and that ~he fatter settlement dated 12th April, 1943. Defendants Nos. 12 and 13 remained ex parte. in the tenements, rights under .acquired no that the !954 Kirar. Singh and Others v. Chaman Paswan and Others. V enkatarama AY.)'ar J. trial Court rights, and The Subordinate the period from fasli 1336 relying on certain Judge held, receipts marked as Exhibits A to A-114 which were in second party the handwriting of the patwaris of the and w~ic~ ranged over that defendants Nos. 1 to 11 had been in posses 1347, tenants and had .sion for ovh 12 years as cultivating settlement acquired occupancy dated 12th April, 1943, conferred · no rights on plaintiffs. He accordingly dismissed the suit. The plaintiffs this decision preferred an appeal against the Court of the District Judge, Monghyr, who agreed that the receipts, Exhibits A to A-114 were genuine, and that defendants Nos. 1 to 11 had acquired occupancy rights, and accordingly dis missed the appeal. The plaintiffs took up the matter in second appeal to the High Court, Patna, S.A. No. 1152 of 1946, and there, for the first time, an objection was taken by the Stamp Reporter to the valuation in the plaint and after enquiry, that the correct valua tion of the suit was Rs. 9,980. The plaintiffs paid the additional Court-fees required of them, and then raised tlie contention that on the revised valuation, ·the appeal from ~he decree of the Subordinate Judge would lie not to the District Court but to the High Court, and that accordingly S. A. No. 1152 of 1946 should be heard as ignoring the judgment of the District a first appeal, Court. The learned Judges held, following the decision the Court determined 1954 Kiran Singh and Others v. Chaman Paswan and Others. .Venkatarama Ayyar J. 120 SUPREME COURT REPORTS [1955] ), of a Full Bench of that Court in Ramdeo Singh v. R~j that the appeal to the District Court was Narain ( 1 competent,. and that its decision could be reversed onlv the appellants could establish prejudice on merits, and holding that on a consideration of evidence no such prejudice had been shown, they dis missed the second appeal. The matter now comes be- fore us on special leave. · it is the appeal, action would It will be noticed· that the proper Court to try the present Subordinate Court, Monghyr, whether, the valuation of ·the suit was Rs. 2,950 as given in the plaint, or Rs. 9,880 as deter mined by the High Court ; but it will make a differenc~ to which the appeal from its judgment in the forum would lie, whether the one valuation or the other is to be accepted as the deciding factor. On the plaint valua tion, the appeal would lie to the District Court ; on the valuation as determined by the High Court, Court that would be competent to entertain the appeal. The contention of the appellants is that as on the valua suit as ultimately determined, the District tion of the Court was not competent to entertain decree and judgment passed by that Court must be treat ed as a nullity, that the High Court should have ac cordingly heard S.A. No. 1152 of 1946 not as a second appeal with its limitations under section 100 of the Civil Procedure Code but as a first appeal against the 'judge ment and decree of the Subordinate 'Judge, Monghyr, and that the appellants were entitled to a foll hearing as well on questions of fact as of law. And alternatively, it if the decree and judgment of is .contended the District treated as a .Cqurt ·op. appeal are not to be nullity and the matter is to be dealt with under section the appellants had 11' of suffered "prejudice" within ·the meaning of that sec tion, judgment of the Subordinate Judge was heard not by the High Court but by a Court • of inferior jurisdiction, viz., ·the District therefore lia Court of Monghyr, .and. that its decree was the High ble to be set aside, and the ?Ppeal heard by. ' Court <in the merits, as. a first. appe~l. the Suits Valuation Act, in that their appeal. against. that even . (1)' I.LR. 27 Patna Iog; ~ I.R ~~49 Patna 278 . • • I • .,- "' . r \.,_ 1954 Kiran Singh and Others v. Chaman Paswan and Others. Venkatarama AyyarJ. S.C.R. SUPREME COURT REPORTS 121 The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction, and the effect of section 11 of the Suits Valuation Act is on that position. It is a fundamental principle well that a decree passed by a Court without established jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enfor ced or relied upon, even at the stage of execution and jurisdiction, even in collateral proceedings. A defect of territorial, or whether it is whether it is pecuniary or in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of par ties. fell to be determined only on the application of general principles there can be no doubt that the governing District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities. The question is what is the effect of section 11 of the Suits Valuation Act on this position. If the question now under consideration the matter, to when should not .criticism ; but amidst much 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 reason of over-valuation or appeal had exercised it by be entertained by an under-valuation, appellate Court, except as provided the section. Then the objections could be follow provisions as to be dealt with. The entertained, and how they are drafting of the section has come in-and deservedly for considerable is one principle which obscure and confused, stands out clear and conspicuous. that a decree passed by a Court, which would have had no jurisdic tion to hear a suit or appeal but for over-valuation or treated as, what it would under-valuation, be but for the section, null and void, and that an objec tion to jurisdiction based on over-valuation or under valuation should be dealt with under that section and to section 578, now sec not otherwise. The reference tion 99, of the Civil Procedure Code, the opening is significant. That section, while words of the section providing that no decree shall be reversed or varied is not to be It is 1954 Kiran Singh and Others v.' Chaman Paswan and Oihers. Venkatarama A~ar J. 122 SUPREME COURT REPORTS [1955.J relating It is with a view to avoid It provides therein appeal on account of the defects mentioned they do not affect the merits of the case, excepts from its operation defects of jurisdiction. . Section 99 to decrees passed on therefore gives no protection merits, when the Courts which passed them lacked jurisdiction as a result of over-valuation or under result valuation. section 11 was enacted. that · objections to the jurisdiction of a Court based on over-valuation or under-valuation shall not be entertained by an appellate Court except in the manner and to the extent mentioned in the section. It is a self-contained provi jurisdiction sion ·complete .in itself, and no objection to pased on over-valuation or under-valuation can be rais ed otherwise than in accordance with it. With reference to objections 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 o.t revisional Court, unless there was a consequent fail ure of justice, It is that has been adopted in section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy under lying .sections 21 and 99 of. the Civil Procedure Code and section 11 of the Suits Valuation Act is the same, ~amely, that wheri a case had been tried by a Court on it should not be the merits. and technical grounds, un liable to be reversed purely on less it had resulted in failure of justice, and the policy of . the Legislature has been to treat objections to juris diction both territorial and pecuniary as technical and not. open to consideration by an appellate Court, unless there has been a prejudice on the merits. The conten the decree and therefore, tion. of the appellants, judgment of the District Court, Monghyr, should be treated as a nullity eannot . be sustained under section p of the Suits the same principle judgment rendered, .Valuation Act. . , On behalf . of the appellants Rajlakshmi Dasee v. Katyayani Dasee( 1 ) and Shidappa Venkatrao v. Rachappa Subrao(' ) which was affirmed by the· Privy Council in Rachappa Shidappa Venkatrao Jadha11( •) were relied on as supporting tire contention /adhav Subrao v. (t) I.L.R. 38 Cal. 639. (2) I.L.R. 36 Born. 628. (3) 46_!.A:·24. • · 195,,, Kiran Singh and Others v. Chaman Paswan and Others. Venkatarama Ayyar ]. \ ( .. :'-J S.C.R. SUPREME COURT REPORTS 123 recognising to entertain the plaint valuation. There, the estate of her husband Jogendra that if the appellate Court would have had no jurisdic tion to entertain the appeal if the suit had been cor rectly valued, a· decree passed by it must be treated as In Rajlakshmi Dasee v. Katyayani Dasee(1), a nullity. the facts were that one Katyayani Dasee instituted a suit to recover the Court of the Subordinate Judge, Alipore, valuing the claim at Rs. 2,100, whereas the estate was worth more than a lakh of rupees. The suit was decreed, and the District the defendants preferred an appeal Court, which was the proper Court appeal on the parties, the matter, and a consent decree was compromised to por passed, the title of the defendants tions of the estate. Then, Rajlakshmi Dasee, daughter of Jogendra, filed a suit for a declaration the consent decree to which her mother was a party was not binding on the reversioners. One of the grounds urged by her was that the suit of Katyayani was deli it had been correctly berately under-valued, that if valued, the appeal, and that the con competence to entertain Judge was accord sent decree passed by the District ingly a nullity. that a decree passed by a Court High Court observed which had no jurisdiction was a nullity, and that even consent of the parties could not cure the defect. In the question was raised by a person who that case, in a collateral pro was not a party to the action and ceeding, and the Court observed : it was the High Court that would have had In agreeing with this contention, "We are not now called upon to consider what effect of such lack of jurisdiction would be upon thereto were concerned. decree, in so far as the parties to the decree is It is manifest in the property affected concerned, who is interested by the decree, he can obviously ask for a declaration that the· decree is a nullity, because made by a Court the subject-matter of which had no jurisdiction over the litigation." that so far as a stranger ' ,,,.:, .~~- On the facts, the question of the effect of section 11 . of the Suits Valuation Act did not arise for determina tion, and was not considered. (1) I.L.R. 36 Cal. 639. 9-66 S. C India/59 !1955 Kiran. Singh and Others ' v. ·chaman Paswan and Others. :y tnkatarama <lY.)'ar ], l \ "'I 124 SUPREME COURT REPORTS [1955] In Shidappa Venkatrao v. Rachappa Subrao( ., ) the instituted a· suit in the Court of the Subordi plaintiffs nate Judge, First Class, that he was for a declaration injunc the adopted son of one Venkatrao and for an tion restraiiiing interfering with the defendant' from his possession of a house. The plaint· valued the decla ration at Rs. 130 and the injunction at Rs. 5, and the suit was valued for purposes of pleader's fee at Rs. 69,016-9-0 being the value of the estate. The suit was decreed by the Subordinate Judge, and against his decree the defendant preferred an appeal to the District Court, which allowed the suit. in ·second appeal to The plaintiff the High Court, and contended that ·on the valuation in the plaint ··the · appeal ··against . the decree of the to the High· Court, and that the Subordinate Judge lay appeal to the ·District Court · was incompetent.· This contention was upheld, and the decree· of ·the District Judge was set aside. that the· point in dispute was whether on the allegations in -the plaint the ·value for purposes of· jurisdiction was·'• Rs: 135 or Rs. ·69,016-9-0, and the ·decision was that it was ·the· latter. No question of· over-valuation or under'valuation: · arose, 'and n'o deCision on tlie scope of section·:n of the ·Suits Valuation Act was given. the· appeal and dismissed took up the matter It will be seen · · · · Subrao Jadhav v. As ·a result of its decision, the High Court . ·came to ·entertain ·the matter as a first appeal and: •affirmed · the decree of the Subordinate Judge. The defendant in appeal to the Privy Council . in ·took up the matter Rachappa Shidappa · Venkatrao ']adhav (2), and there, his contention was that, in fact, ·on its true valuation the suit was triable by the Court of the Subordinate Judge of the Second Class, and that the District Court was the proper Court to entertain the appeal. The Privy Council held that this objection which was "the most technicalities" was not taken in the Court of first instance, and· that the Court would not be justified "in assisting an objection of that type," and that it was also untenable. Before concluding, it observed ! technical of ·"The Court Fees Act was passed not to arm a 'litigant with a weapon of (1) I. L. R. 36 Jlom 628. technicality against (2) 46 I A 24. S.C.R. 'SUPREME COURT' REPORTS .125 opponent but to secure revenue for the benefit of· the State ........ The defendant in this suit seeks to utilise the provisions of the Act not to safeguard the interests of the State, but to obstruct the plaintiff ; he does not t_he detri contend that the Court wrongly decided the case ment of the· revenue but In without cir.cumstances time at the hearing of the plea, advanced for the first is misconceived, and was appeal in the District Court, rightly rejected by the High Court." it dealt with jurisdiction. 1954 Kirdn Singh and Others v. Chatrian Paswan and Ot/zers. · V enkatarama AyyarJ. l > - · .. · · ' ... · not be entertained · Far from supporting · the contention of.the appellants that the decree passed in appeal by the District .Court of Mcmghyr ·should be · regarded as a nullity,.: these that an objection of the kind ·now ·observations show technical in character should put forward being highly the Court of first that· the decree therefore of opinion instance. We are and judgment of the District Court, Mbnghyr;· _cannot be regarded·as a nullity. It is next .ccmtended if not raised inferior jurisdiction, while that even treating the · matter . as g@verned by section 11 of· the· Suits Valuation· Att, to the appellants, ·in that by reason there was prejudice their appeal . was heard 'by . a . of the under"valuation, they ·Were ··en "'" . Court of . titled to a hearing by the· High Court on· the •facts . . It was argued 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 1therefore ·be to constitute prejudice: This argu · held, without more, ment 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 the judgment · of the Subord_inate Court. The law does provide an appeal plaintiffs have exercised 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 to the District Court, and ~~ deprived of the right of appeal against . against that judgment that right. , 1954 Kiran Singh and Others v. Chaman Paswan and Others. V enkatarama 4J>yar J. 126 SUPREME COURT REPORTS [1955] ~; ,.,, therefore, The question, therefore amounts they had been deprived of appellants really is not a right of appeal against the judgment of the Subor dinate 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 that a change in objection the forum of appeal is by itself a matter of prejudice for the purpose of section 11 of the Suits Valuation Act. is, can a decree passed on to entertain appeal by a Court which had jurisdiction be set aside on it only by reason of under-valuation that Court was not the ground that on a true valuation the appeal ? Three High Courts competent to entertain have considered the matter in Full Benches, and have come. to the conclusion that mere change of forum not a prejudice within the meaning of section 11 of the Suits Valuation Act. Vide Kelu Achan v. Cheriya Par- vathi Nethiar('), Moo/ Chand v. Ram Kishan( 2 Ramdeo Singh v. Rai Narain( 8 ). In our judgment, the opinion expressed in these decisions is correct. Indeed, it is impossible on the language of the section to come to a different conclusion. If the fact of an appeal being heard by a Subordinate Court or District Court where V the High Court if the the appeal would have correct valuation had been given is itself a matter of prejudice, then the decree passed by the Subordinate Court or the District Court must, without more, be liable to be set aside, and the words "unless the over thereof has prejudicially valuation or under-valuation · affected the disposal of the suit or appeal on its merits" would become wholly useless. These words clearly show interfered with and as a matter of course, but only if prejudice such as is mentioned in the section results. And the prejudice envisaged by that section therefore must be something other than the appeal being heard in a different forum. A contrary conclusion will lead to the surprising result that the section was enacted with the object of curing the decrees passed ) in such cases are liable to be Ji~ in an appellate Court, not in all cases ~. - - t' (1) LL.R. 46 Mad. 631. (2) I.L.R. 55 AU. 315. (3) I.L.R. 27 Patna 109j A.LR; 1949 Patna 278. . ..(_,;,- 1954 Kiran Singh and Others v. Chaman Pa.rwan and Others. Venkatarama AyyarJ. ·~ ,t,. > :s.c.R. SUPREME COURT REPORTS 127 .defects of jurisdiction arising by reason of over-valua tion, or under-valuation but that, in fact, this object has not been achieved. We are therefore clearly of ·opinion that the prejudice contemplated by the section is something different from the fact of the appeal hav ing been heard in a forum which would not have been competent to hear it on a correct valuation of the suit ~s ultimately determined. It is next argued that in the view that the decree of 'the lower appellate Court is liable to be reversed only •on proof of prejudice on the merits, the second appel late Court must, for the purpose of ascertaining whether there was prejudice, hear the appeal fully on the.. facts, it should be heard as a first appeal. .and that, in effect, Reliance is placed in support of this .contention on ·observations of two of the learned Judges in Ramdeo ). There, Sinha J. observed .Singh v. Raj Narain ( 1 :that though the second appeal could not be treated as :a first appeal, prejudice could be established by going 'into the merits of the decision both on questions of that could be done under :fact and of law, and :section 103 of the Civil Procedure Code. Meredith J. :agreed that for determining whether there was preju <lice or not, there must be an enquiry on the merits of the decisions on questions of fact ; but he was of opinion that that could be done under section 11 of the Suits Valuation Act itself. Das J., however, declined to express any opinion on this point, as it did not arise :at that stage. The complaint of the appellants the second appeal, though they purported to follow the decision in Ram deo Singh v. Raj Narain ( 1 ) did not, in fact, do so, and that there was no consideration of the evidence bearing the questions of fact on which the parties were in dispute. learned Judges who heard That brings us to the question as to what is meant by "prejudice" in section 11 of the Suits Valuation Act. Does it include errors in findings on questions of fact in issue between the parties ? If it does, then it will be obligatory on the Court hearing the second appeal to examine the evidence in full and decide whether _(1) I.L.R. 27 Patna 10~; A,J,R, 1949 Patna 278. '954· Kiran Singh and Others· v. Chaman Paswan and Others~ V enkatarama AVJ'arJ. . 128 SUPREME COURT REPORTS [19553- findings, It provides .fo must further be noted that there conclusions reached by the · lower appellate Court are· right. If it agrees with then it will affirm the judgment ; if it does not, it will · reverse it. That means that the Court of second appeal is virtual in the position of a Court of . first ·appeal. The language of section 11 of the Suits Valuation Act plainly against such a view. that . over valuation or under-valuation must have prejudicially affected the disposal of the case on the merits. The prejudice . on the merits must be directly attributable to over-valuation or under-valuation and an error in a finding of reached on a · .consideration of the ·evi to have been caused by· dence cannot possibly . be said over-valuation or under-valuation; . ·Mere errors conclusions on .the points for determination would there" fore be clearly precluded by language of the sec is no provi;, tion. sion in the Civil Procedure Code, which. authorises a' Court· of second appeal to go into questions of fact on which the lower appellate Court has recorded findings and. .to reverse them. S_ection 103 was ·relied on irr Ramdeo Singh v. Raj Narain(') as conferring such a power. But that section . applies only· when the appellate Court has failed to record ·a finding on any issue, or when there had been -irregularities or defects·· such as fall -under section 100 of the Civil Procedure· Code. If these · conditions · exist, the ·judgment under appeal is ·liable to be set aside in the exercise of normal· powers of a Court -of second appeal -without resort to section 11 of the Suits Valuation Act. If they do not exist, there is. no other power under the Civif Procedure · Code authorising the Court of second appeal to set aside findings of fact and to re-hear the appeal itself on those questions. We must accordingly 'hold that an appellate Court has no power under section Ji of the. Suits Valuation Act to consider · whether' the findings of fact recorded by the lower appellate . Court findings cannot be: are correct, and that error in those to be prejudice within the· meaning of that se-ction" the definition of "prejudice" has · been. nega tive in terms-that it cannOt be mere change of forum So far, (1) I.L.R, 'J.7 Patna 109. · - 1954 KiranfSingh anit Others v. Chaman Paswan and Others. Venkatarama Ayyar]. • > - - S.C.R. SUPREME. COURT REPORTS. 129 th\lt injustice, trial of suits or mere error in the decision on the. merits. What then is positively prejudice for the purpose of . section 11 ? . That is a question which has agitated . Courts. in India It has .. been ever since the enactment of the section. if there was no proper hearing of the suggested suit or appeal .and that had resulted in ~ection 11 of th.e Suits would be. prejudice . within Valuation Act. Another instance of prejudice is when a suit which ought to have been filed as an original suit is filed as a result of under-valuation on the small cause side. The procedure for in ·the · Small Cause Court is summary ; . there are no ·provisions for is not . req>rded · in inspection ; evidence discovery or extenso, and there is' no right of appeal against its de.ci sion. The defendant thus loses the benefit . of an ela borate procedure. and a right ot' appeal which he would have had, if the suit had been filed on the original side. It can be said in such a case the disposal of. the suit by the Court of Small Causes has. prejudicially affected the merits of the cas~. ·No purpose, however, to enumerate exhaustively .. all is served by attempting possible cases of prejudice which might. come under section 11 of the Suits . Valuation Act. · The jurisdiction that is conferred on appellate Courts under that section is an equitable one, to be , exercised when there has 'by a been an erroneous assumption of Subordinate Court· as a result of over-valuation or under valuation and a .consequentia(failure of neither possible nor even . desirable to define such a jurisdiction closely, qr. confine it within stated b9unds. it is. in the nature It can only be predicated of it that of a revisional jurisdiction to be exercised with caution and for the en.ds· .9f facts and justice, whenever .Whether there .. has been prejuc situations call dice or not. is, accordingly, a matter. to be determined on the facts of each case. jurisdiction justice. for it.. It } I \ r We have ·now ' I the appellants have to. see whether suffered any prejudice . by reason of the under-valua t4e action. They tion. They were the plaintiffs ·,t. •· \va~ue~ the suit ~t !ls·. 2;950 .. The defendants raised .no "11ect10n to the 1.unsd1ct10n of.the Court at any .time. the suit after an elaboratt" Then the plaintiffs 1954 Kiran Singh and Others v. Chaman Paswan tind Others. V enkatarama AY.7ar j. 130 SUPREME COURT REPORTS [1955] raised the plaintiffs, they who appealed to the District Court as trial, it is there, they were bound to, on their valuation. Even the defendants took no objection to the jurisdiction of the District Court to hear the appeal. When the deci sion went on the merits against preferred S. A. No. 1152 of 1946 to the High Court of Patna, and if the Stamp Reporter had not to the valuation and to the Court-fee paid, objection jurisdic the plaintiffs would not have challenged It would tion of the District Court to hear the appeal. if the plaintiffs who be an unfortunate state of the law, their own choice initiated proceedings could subsequently turn round and question diction on the ground of an error in valuation which If the law were that the decree of a was their own. Court which would have had no jurisdiction over suit or appeal but for the over-valuation or under valuation should be treated as a nullity, then of course, they would not be estopped from setting up want of jurisdiction in the Court by the fact of their having invoked it. That, however, is not the posi themselves tion under section 11 of the Suits Valuation Act. Why then should the plaintiffs be allowed to resile from the position taken up by them to opponents, who had acquiesced therein ? the prejudice of in a Court of - If that is the correct There is considerable authority in the Indian Courts that clauses (a) and (b) of section 11 of the Suits Valua tion Act should be read conjunctively, notwithstanding the use of the word "or." pretation, the plaintiffs would be precluded from raising the objection about jurisdiction in an appellate Court. But even if the two provisions are to be construed dis the parties held entitled under sec junctively, and the objection for the first time in tion 11 (I) (b) to raise the appellate Court, even then, prejudice has satisfied, and the party who has resorted to a forum of his own choice on his own valua tion cannot himself be ·heard to complain of any pre judice. Prejudice can be a ground for relief only when it is due to the action of another party and not when it results from one's own act. Courts cannot recognise that as prejudice which flows from the action of the the requirement as to be 1954 Kiran Singh and Others • v. Chaman Paswan and Others. Venkatarama AyyarJ. 1954 April 15. S.C.R. SUPREME COURT REPORTS 131 it. Even apart very party who complains about this, we are satisfied that no prejudice was caused the appellants by their appeal having been heard by the District Court. There was a fair and full hearing its decision on of the appeal by that Court ; the merits on a consideration of the entire evidence the case, and no injustice is shown to have resulted learned its disposal of the matter. The decision of the Judges there were no grounds for interference under section 11 of the Suits Valuation Act is correct. the appeal fails and is dismmised with In the result, it gave costs. Appeal dismissed. _) . WUNTAKAL YALPI CHENABASAVANA GOWD v. RAO BAHADUR Y. MAHABALESHWARAPPA AND ANOTHER. [BIJAN KUMAR MuKHERJEA, VIVIAN BosE, GHULAM HASAN and T. L. VENKATARAMA AYYAR JJ.] Co-sharers-faint property-Adverse possession by a co-sharer against another co-sharer-Ouster-Principles applicable thereto. Once it is held that a possession of a co-sharer has become adverse to the other co-sharer as a result of ouster, the mere asser tion of his joint title by the dispossessed co-sharer would not inter rupt the running of adverse possession. He must actually effectively break up the exclusive possession of his co-sharer by re-entry upon resuming possession in such It may also check the running of manner as it was possible to do. time if the co-sharer who is in exclusive possession acknowledges the title of his co-owner or discontinues his exclusive possession of the property. the property or by ' The fact that one co-sharer who had allowed himself to be dis possessed by another co-sharer as a result of ouster exhibited later on his animus to treat the property as joint property of him self and his co-sharer cannot arrest the running of adverse posses sion in favour of the co-sharer. A mere mental act on the part of the person dispossessed unaccompanied by any change of posses sion cannot continuity of adverse possession of the <leseizor. affect the CIVIL APPELLATE No. 89 of 1953. JuRisDICTION : Civil· Appeal