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Case Number
Attorney(S)
  • S.K.Sarkar
  • S.K.Majumdar
  • R.S.Chatterji
  • B.C.De
Judges
  • Narayan
  • Ahmad, JJ.
Acts
  • provisions of this Article with those of O. 45 R. 3 and Section 110 of the CPC, the Constitution
  • ARTICLE 133 CONSTITUTION OF INDIA
  • Section 110 of the CPC or by Article 133(1) of the Constitution of India.
  • provisions of Article 133(1) of the Constitution.
  • SECTION 13 EVIDENCE ACT
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • S.K.Sarkar
  • S.K.Majumdar
  • R.S.Chatterji
  • B.C.De
Judges
  • Narayan
  • Ahmad, JJ.
Acts
  • provisions of this Article with those of O. 45 R. 3 and Section 110 of the CPC, the Constitution
  • ARTICLE 133 CONSTITUTION OF INDIA
  • Section 110 of the CPC or by Article 133(1) of the Constitution of India.
  • provisions of Article 133(1) of the Constitution.
  • SECTION 13 EVIDENCE ACT
See more information ...
Smart Summary

Legal Opinion Summary — Narayan, J.

Factual and Procedural Background

Opposite parties Nos. 1 to 3 instituted Title Suit No. 16 of 1945 in the Subordinate Judge's Court at Bhanbad claiming that the defendants, including Shreemati Kashi Bai (the applicant), had encroached upon their coal land. They sought determination of the intermediate boundary, restoration of possession over the encroached land, and compensation for coal cut and removed by the defendant.

On 31-7-1945 the applicant (Shreemati Kashi Bai) filed Title Suit No. 50 of 1945 against opposite parties Nos. 1 to 3 and others, in respect of the same piece of coal land, seeking substantially similar reliefs. The trial court decreed Suit No. 16 and dismissed Suit No. 50. The applicant appealed both decisions to this Court (Appeals from Original Decrees Nos. 252 and 254 of 1948). This Court affirmed the result with a modification in Title Suit No. 16 by adding certain persons as co-plaintiffs and granting them a joint decree.

The applicant applied for leave to appeal to the Supreme Court against this Court's decisions in the two appeals. The Commissioner’s report (dated 26-8-1946) formed part of the decree in Title Suit No. 16 and fixed the intermediate boundary, finding that two inclines (Nos. 1 and 2) that had been worked lay outside the defendant's southern boundary and that the volume of coal cut and removed from those two mines amounted to 2,87,103 cubic feet (equivalent to 10,254 tons).

Legal Issues Presented

  1. Whether leave to appeal to the Supreme Court should be granted against the decisions of this Court in Appeals from Original Decrees Nos. 252 and 254 of 1948.
  2. Whether the judgment and decree under appeal involve, directly or indirectly, a claim or question respecting property of the value of more than Rs. 20,000 (thus engaging Article 133(1) of the Constitution or Section 110 CPC).
  3. Whether the right of appeal in these suits is governed by Section 110 of the Civil Procedure Code or by Article 133(1) of the Constitution, and whether Article 133 has retrospective effect in relation to suits instituted before the Constitution came into force.
  4. Whether the judgment and decree of this Court constitute a decree of affirmance of the decision of the Court below (which would limit leave to cases involving substantial questions of law).
  5. Whether the two suits (Title Suit No. 16 and Title Suit No. 50) involve substantially the same questions for determination and should be consolidated under Order 45, Rule 4.
  6. Whether there exists a substantial question of law (including the admissibility of a map incorporated in a previous decree and the question of title) that would entitle the applicant to a certificate to appeal.

Arguments of the Parties

Applicant's (Appellant's) Arguments

  • The real value of the property in dispute and the claim in the two suits considerably exceeded Rs. 20,000 despite the suits being valued at Rs. 5,100 for court-fee and jurisdictional purposes; therefore the judgment and decree involve questions respecting property of value over Rs. 20,000.
  • The decree passed in Title Suit No. 16 has subsequently been varied by this Court (by adding co-plaintiffs and granting them a joint decree), so the decree of this Court cannot be regarded as an affirmance of the lower court's decree.
  • Under Order 45, Rule 4, the suits involving substantially the same questions (both concerning the same coal land) ought to be consolidated; if leave is granted in one appeal, it should be granted in the other.
  • Alternatively, if the decree of this Court were treated as one of affirmance, the appeal involves substantial questions of law (notably the admissibility of a certain map and unresolved title issues) entitling the applicant to a certificate.

Opposite Parties' Arguments

  • The opinion records the contention of opposite parties that the applicant's suit (Title Suit No. 50) was a counter-blast to the earlier Title Suit No. 16; both suits relate to the same piece of coal land.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Narayan Prasad v. Raj Kishore, AIR 1953 Pat 275 Right of appeal is not merely procedural; a litigant's vested right on the suit-institution date cannot be deemed taken away by the Constitution. The Court stated it was bound by this Division Bench decision and followed it on the question whether Article 133 applies retrospectively; this made that question academic here given the value of the coal in dispute.
Lalmina Singh v. Kumar Kamal Singh, AIR 1952 Pat 450 After the Constitution, certificate for leave to appeal must be granted under Article 133(1); if conflict arises between Article 133 and O.45 R.3/Section 110 CPC, the Constitution prevails. The Court noted observations in this case but treated Narayan Prasad as binding; the case illustrates conflicting views in the High Court decisions.
Mahendra v. Dersan, AIR 1952 Pat 341 (Special Bench) Discussion of the vested right of appeal question. The Court acknowledged the discussion in that Special Bench decision but observed that Narayan Prasad directly decides the matter and is binding.
Viraraghava Rao v. Narasimharao, AIR 1950 Mad 124 Where a High Court modifies a decree (even by varying the quantum of damages) and the variation is in favour of the person who seeks to appeal, the decree is not one of affirmance; hence appeal lies without consideration of whether a substantial question of law arises. The Court relied on this decision to support the proposition that any variation of the decree (whether favourable or prejudicial) prevents treating the decree as an affirmance.
Homeshwar Singh v. Kameshwar Singh, AIR 1933 Pat 282 Whether the High Court's judgment is one of affirmance does not depend on whether the appellant is plaintiff or defendant nor on whether the modification favours or prejudices the appellant. Cited as authority for the view that modifications, irrespective of their direction, prevent classification as an affirmance.
Raja Brajasunder Deb v. Raja Rajendra Narayan Bhanj Deo, AIR 1941 Pat 269 (SB) Approval and application of the Homeshwar principle concerning when a decree is to be treated as one of affirmance. Referred to with approval as reinforcing the principle that variation means not an affirmance.
B.N. Ry. Co. Ltd. v. Ruttanji Ramji, AIR 1935 Cal 250 Calcutta High Court followed Patna rulings on the affirmance/variation principle and quoted relevant observations. Used to show consistent judicial treatment across High Courts supporting the non-affirmance stance when decrees are varied.
Observation of Courtney-Terrel, C.J., AIR 1933 Pat 262 Quoted as an influential observation supporting the Patna rulings on the effect of modification/variation. Reinforces the line of authority that variation prevents characterizing a decision as one of affirmance.
Nathu Lal v. Raghubir Singh, AIR 1932 All 65 (SB) Held that if the decree of the Court below has been varied (to any extent), it cannot be a decree of affirmance. Cited as supporting authority for the proposition that variation defeats a finding of affirmance.
Kesho Prasad Singh v. Mt. Bhagjogna Kuer, AIR 1937 PC 69 The judgment of a prior suit, the plaint and execution steps may be admissible as evidence of asserted rights (quoted passage indicating such materials can be evidence of the right claimed); maps incorporated in decrees can therefore be admissible. The Court quoted from this Privy Council decision to hold that the map which formed part of an earlier decree should be regarded as admissible evidence and that no improper use had been made of it in the judgment.
Guija Lall v. Fatteh Lall, 6 Cal 171 Referenced in the context of whether a judgment is a "transaction" under Section 13 of the Evidence Act; cited in the Privy Council passage. Used within the quoted Privy Council authority to support admissibility of prior judgments and related documents as evidence of asserted rights.
Dimomani v. Brojo Mohini, 6 Cal WN 386 (PC) Referenced as part of the authorities considered by the Privy Council on admissibility of judgments as evidence. Included within the Privy Council discussion relied upon for admitting prior maps and decrees into evidence.
Mahadeva Royal v. Veerabasava Chikka Royal, AIR 1942 Mad 368 Held that the question of non-admissibility of a document can amount to a substantial question of law entitling a party to a certificate to appeal. Cited by the Court to acknowledge that admissibility challenges to documents (such as maps) may raise substantial questions of law.
Tayamma v. Varadacharyulu, AIR 1929 Mad 827 Illustrates that where the High Court affirms and reaches a particular finding without advertence to governing rules, a substantial question of law may be involved. Referred to show circumstances in which the High Court's treatment of evidence/issues can create substantial questions for appeal.
Raghunath Prasad Singh v. Deputy Commr. of Partabgarh, AIR 1927 PC 110 Privy Council view that a "substantial question of law" is one material between the parties and need not be of general importance. Used to clarify the meaning of "substantial question of law" and to support the Court's approach when assessing whether a certificate should be granted.

Court's Reasoning and Analysis

The Court's analysis proceeded in a sequence of discrete legal determinations anchored to the facts reported by the Commissioner and to precedent:

  1. The Court accepted the Commissioner's findings (part of the decree) that the disputed inclines 1 and 2 represented coal removed amounting to 2,87,103 cubic feet (10,254 tons). The Court concluded that whether the coal remained under the earth or had been removed, the value of roughly 10,000 tons of coal could not be less than Rs. 20,000. Hence the judgment and decree involve claims/questions respecting property exceeding Rs. 20,000.
  2. The Court addressed whether the right of appeal should be governed by Section 110 CPC or Article 133(1) of the Constitution and whether Article 133 operates retrospectively. Although noting conflicting opinions in earlier decisions, the Court stated it was bound by the Division Bench decision in Narayan Prasad v. Raj Kishore that the vested right of appeal on the suit-institution date survives the Constitution; however it concluded the retrospective-application question was academic in this case because the value threshold (Rs. 20,000) was plainly met.
  3. The Court examined whether its own judgment constituted an affirmance of the lower court's decision. It concluded that the decision could not be regarded as a decree of affirmance because this Court had varied the decree in Title Suit No. 16 by adding co-plaintiffs and granting them a joint decree, which constitutes a variation of the lower court's decree.
  4. Relying on established authorities (including Viraraghava Rao and Homeshwar Singh), the Court reasoned that any variation of the lower court's decree — regardless of whether the variation favours or prejudices the person seeking leave to appeal — prevents the decree from being characterized as an affirmance.
  5. The Court considered consolidation under Order 45, Rule 4, observing that both suits concern the same piece of coal land and that the applicant's suit had been characterized by opposite parties as a counter-blast; on that basis, consolidation principles apply, and if leave is granted in one appeal it should be granted for the other as well.
  6. The Court assessed whether a substantial question of law exists. The applicant argued that title had not been decided and that a certain map used was inadmissible. The Court referred to Privy Council authority (Kesho Prasad Singh) and other High Court decisions to conclude that the map incorporated in a prior decree is admissible evidence and that the map had been properly used; nonetheless the Court accepted that admissibility of documents can be a substantial question of law (citing Mahadeva Royal and Tayamma) and that Ramaswami, J. had proceeded on the assumption that the earlier decree would not operate as res judicata while still treating the map as admissible for boundary determination.
  7. Balancing these points, the Court concluded that the question of admissibility of the prior decree and its map was a substantial question. Consequently, even if the decision could have been viewed as an affirmance, the substantial-question point would have justified granting a certificate. Given that the decree had in fact been varied, the Court allowed the application.

Holding and Implications

Holding: The applications for leave to appeal to the Supreme Court are allowed. A certificate is granted to the petitioner (Shreemati Kashi Bai) for leave to appeal to the Supreme Court under Article 133 of the Constitution of India read with Section 110 of the CPC, against this Court's decisions in Appeals from Original Decrees Nos. 252 and 254 of 1948. The petitioner is entitled to costs; the hearing fee awarded is two gold mohurs in each case.

Implications:

  • Direct effect: The petitioner is granted a certificate to press an appeal to the Supreme Court and receives costs (hearing fee two gold mohurs per case).
  • On broader law: The Court applied and followed existing authorities on (a) the effect of variation on whether a judgment is an affirmance, and (b) the admissibility of maps and prior decrees as evidence. The opinion does not assert that it establishes a new legal precedent; it relies on and follows existing decisions to resolve the questions in this specific factual context.

Disposition: Application allowed. (Ahmad, J. agreed.)

Show full summary ...

    Smt. Kashi Bai v. Brajendra Nath And Others Opposite Party.

    Narayan, J.:— This is an application for leave to appeal to the Supreme Court against a decision of this Court in Appeals from Original Decrees Nos. 252 and 254 of 1948. The applicant is one Shreemati Kashi Bai who was the appellant in both the appeals. The opposite parties Nos. 1 to 3 had filed a suit, Title Suit No. 16 of 1945, against this petitioner in the Court of the Subordinate Judge at Bhanbad, and the case put forward by them was that the defendants had encroached upon their coal land. They had, therefore, prayed that the intermediate boundary line between their coal land and the coal land of the defendant Shreemati Kashi Bai be fixed and determined, that their possession over the encroached land be restored and that they be awarded compensation for the coal cut and removed, by the defendant from the disputed coal land.

    2. This suit had been instituted on 24-3-1945, and on 31-7-1945 Shreemati Kashi Bai filed another suit Title Suit No. 50 of 1945, against opposite parties Nos. 1 to 3 and certain other persons, and this suit was also in respect of the very piece of coal land for which Title Suit No. 16 had been instituted. The reliefs sought in this suit were almost the same as in the previous suit. The decision in the two suits was against the petitioner; that is, Suit No. 16 was decreed and Suit No. 50 was dismissed. The petitioner had to prefer appeals against the two decisions, and this Court affirmed the decree granted by the Subordinate Judge in the two suits with this modification that in Title Suit No. 16 certain new persons were added as co-plaintiffs and they were granted a joint decree along with the other plaintiffs. The submission on behalf of the petitioner is that though the suits were valued at Rs. 5100 only for the purposes of court-fee and jurisdiction, the real value of the property in suit and the claim involved in the two suits considerably exceeded Rs. 20,000, and that consequently the judgment and the decree under appeal involve, directly or indirectly, claim or question respecting property of the value of more than Rs. 20,000. It is further contended that the decree passed in Title Suit No. 16 has been subsequently varied, and the decree of this Court cannot, therefore, be regarded as a decree of affirmance, and that in accordance with the provisions of O. 45, R. 4 the suits which involve substantially the same questions for determination and which have been decided by the same judgment have to be consolidated. In the alternative, it is suggested that if the decree of this Court be treated as a decree affirming the decision of the Court below, then in that case the appeal involves some substantial questions of law.

    3. There can be no doubt that the judgment and the decree involve, directly or indirectly, some claim or question respecting property of the value of more than Rs. 20,000. The report of the Commissioner submitted on 26-8-1946 is a part of the decree in Title Suit No. IS of 1945. The Commissioner has fixed the intermediate boundary line between the plaintiffs' land and the defendants' land, and he has found that inclines Nos. 1 and 2 which have been worked are outside the southern boundary of the defendant. The volume of coal cut and removed from the said two mines has been found to be 2,87,103 C. ft. This would amount to 10,254 tons. And it could not, therefore, be disputed before us that the real dispute was and is with regard to more than 10,000 tons of coal. Whether it is inside the earth or outside the earth, the value of 10,000 tons of coal cannot be less than Rs. 20,000, and the judgment and the decree thus involve claim or question respecting property of the value of more than Rs. 20,000. Arguments were addressed to us on the question whether the right of appeal would be governed by Section 110 of the CPC or by Article 133(1) of the Constitution of India. The suits had undoubtedly been instituted before the new Constitution of India came into force, and therefore the question arises whether Article 133 had retrospective effect and would govern a suit which had been instituted before the new Constitution came into force. This question appears to be academic in this case, inasmuch as the value of the coal in dispute, whether it is underneath the ground or whether it had been removed, cannot be less than Rs. 20,000.

    4. A Bench of this Court has, however, very recently come to the decision that a right of appeal is not a mere matter of procedure and that the vested right which the litigant had on the date of the institution of the suit cannot be deemed to have been taken away by the Constitution. We are bound by the decision of the Division Bench of this Court in — ‘Narayan Prasad v. Raj Kishore’, AIR 1953 Pat 275 (A)’, and it is not open to us to investigate whether this decision is correct in law or not, though in certain other decisions of this Court observations appear to have been made which do not seem to agree fully with the view taken by Ramaswami and Jamuar, JJ. in this Supreme Court Appeal, e.g, Lakshmikant Jha, C.J and Chatterji, J. observed in — ‘Lalmina Singh… v. Kumar Kamal Singh…Opposite Party.’, AIR 1952 Pat 450 (B), that after the Constitution of India came into force the law has been changed and certificate for leave to appeal has now to be granted under the provisions of Article 133(1) of the Constitution. Their Lordships further observed that if there is any conflict between the provisions of this Article with those of O. 45 R. 3 and Section 110 of the CPC, the Constitution will prevail. The question of a vested right of appeal was discussed by the special Bench which decided the case of - ‘Mahendra v. Dersan’, AIR 1952 Pat 341 (SB) (C). But, when the question has been directly decided in — ‘AIR 1953 Pat 275 (A)’, I think, we are bound to follow this decision. Moreover, as I have already said, this question is only of academic interest in this case, inasmuch as, as indicated above, this is really a case in which the judgment and the decree involved claim or question respecting property of the value of more than Rs. 20,000.

    5. The next question which arises is whether the judgment and the decree against which the petitioner is appealing have affirmed the decision of the court immediately below. If the judgment and the decree of this Court are interpreted as a judgment and decree confirming the decision of the Court below, then in that case no leave can be granted, unless the appeal involves some sub-tantial question of law. I have no hesitation in agreeing with Mr. R.S Chatterji that the decision of this Court cannot be regarded as a decision of affirmance. Title Suit No. 16 had been decreed by the Court below only in favour of the present opposite parties Nos. 1 to 3. By an order of this Court defendants 4 to 10 of Title Suit No. 50 were added as co-plaintiffs, and the order of this Court is that in Title Suit No. 16 the newly added co-plaintiffs will be granted a joint decree along with the other plaintiffs. This is certainly a variation of the decree of the Court of first instance, and it would, in my opinion, be wrong to say that the decree of this Court passed in the appeal arising out of Title Suit No. 16 is a decree of affirmance.

    6. In a very recent decision — ‘Viraraghava Rao v. Narasimharao’, AIR 1950 Mad 124 (D), the High Court of Madras has held that where the High Court modifies the decree of the lower appellate Court only by varying the quantum of damages awarded and that variation is in favour of the person who seeks to appeal against the decision of the High Court, an appeal lies to the Federal Court without the consideration of the question whether the appeal involves a substantial question of law, as the decree of the High Court is not one of affirmance. Their Lordships have taken the view which appears to have been consistently taken in this Court that a variation whether to the prejudice or in favour of the person seeking leave to appeal would not alter the decree of variance into one of affirmance.

    7. A Bench of this Court had held in — ‘Homeshwar Singh v. Kameshwar Singh’, AIR 1933 Pat 282 (E). that the question whether the judgment of the High Court is a judgment of affirmance or not does not depend upon whether the appellant is the plaintiff or the defendant and that it is immaterial whether the effect of the modification is in favour of the appellant or adds to his detriment. This decision has been referred to with approval in the Special Bench case of — ‘Raja Brajasunder Deb v. Raja Rajendra Narayan Bhanj Deo*’, AIR 1941 Pat 269 (SB) (F). The Calcutta High Court has followed the Patna rulings in — ‘B.N Ry. Co. Ltd. v. Ruttanji Ramji’, AIR 1935 Cal 250 (G) and has quoted with approval the observation of Courtney-Terrel, C.J in the said case of — ‘AIR 1933 Pat 262 (E)’. A Special Bench of the Allahabad High Court also held in —‘Nathu Lal v. Raghubir Singh’, AIR 1932 All 65 (SB) (H), that if the decree of the Court below has been varied, no matter to what extent, the decree cannot be one of affirmance. The position is so obvious that it will be needless to cite further authorities on this point, and because the decree in Title Suit No. 16 is now a decree in favour of several other persons besides the original plaintiffs of this suit, the decree passed in this suit cannot be deemed to be a decree of affirmance.

    8. According to the provisions of O. 45, R. 4 suits involving substantially the same questions for determination and decided by the same judgment can be consolidated. The most significant circumstance in this case is that both the suits relate to the same piece of coal land, and according to the contention of the opposite parties the title suit instituted by the lady was a counter-blast to Title Suit No. 16 instituted earlier by the opposite parties. There cannot be a better case in which the provisions of O. 45, R. 4 can be applied, and if leave has to be granted in the appeal arising out of Title Suit No. 16, leave ought to be granted in the other appeal as well arising out of Title Suit No. 50.

    9. Lengthy arguments were advanced before us on the point as to whether there is a substantial question of law to be decided in this case, but this point becomes immaterial when we find that the decree is not a decree of affirmance. The main ground on the basis of which it was urged that there is a substantial question of law to be decided in the case is that the question of title has not been decided by this Court and that a certain map has been used which, according to the submissions of the applicant, is inadmissible in evidence. But in view of the observation of the Judicial Committee in — ‘Kesho Prasad Sin(?h v. Mt. Bhagjogna Kuer’, AIR 1937 PC 69 (I) the map which is a part of the decree which was passed in the suit of 1895 should be regarded as admissible in evidence, that map was incorporated in decree and in my opinion no improper use has been made of this map in the judgment of this. Court. I should like to quote the following passage from the judgment of the Privy Council in — ‘AIR 1937 PC 69 (I)’:

    “On the other hand apart from all discussion whether a judgment is or is not a ‘transaction’ within the meaning of Section 13 of the Evidence Act (of. — ‘Guija Lall v. Fatteh Lall’, 6 Cal 171 (FB) (J) — ‘Dimomani v. Brojo Mohini’, 6 Cal WN 386 (PC) (K)) the judgment of 1916, together with the plaint which preceded it and the steps in execution which followed, are evidence of an assertion by the Raj of the right which it claims to have acquired in 1903 and are thus admissible evidence of the right.”

    10. The previous litigation was a litigation between one Ramdayal Mazumdar and Bhudhar Chandra Roy. The plaintiffs in Title Suit No. 16 have derived their interest in some way or other from the Mazumdars, and Bhudhar Chandra Roy having surrendered his lease, there was a fresh settlement with one W.H Benett who is the predecessor-in-interest or the predecessor-in-title of the petitioner Sheemati Kashi Bai. By the map which, was attached to the decree of the suit of 1896, the intermediate boundary line between the plaintiffs' coal land and the defendants' coal land had been demarcated, and the conclusion arrived at by Ramaswami and Sinha, JJ. in this case was that the Commissioner had correctly surveyed the eastern and the northern boundaries of the plaintiffs' land according to the map attached to the decree of 1896, that the intermediary boundary line between the plaintiffs' coal land and the defendants' coal land had been correctly demarcated by the Commissioner in his comparative map, that the disputed coal land including the two-inclines, 1 and 2, belonged to the plaintiffs and that the defendants had made encroachment thereon.

    11. My own view is that the map of the previous litigation cannot be rejected as an inadmissible piece of evidence, but there are cases which lay down that the question regarding the non-admissibility of a document is a substantial question which will entitle the petitioner to have a certificate.: (See — Mahadeva Royal v. Veerabasava Chikka Royal’, AIR 1942 Mad 368 (L)). In—‘Tayamma v. Varadacharyulu,’ AIR 1929 Mad 827 (M). it was held that where High Court affirms the judgment of lower Court and gives a finding against a party in respect of the existence of necessity for the alienation of lands made by a Hindu widow without advertence to the rule regarding recitals in ancient documents, there is a substantial question of law involved in the appeal. The well-known decision of the Judicial Committee in — ‘Raghunath Prasad Singh v. Deputy Commr. of Partabgarh’, AIR 1927 PC 110 (N) may also be referred to in this connection. The view taken by the Privy Council is that ‘substantial question of law’ is a substantial question of law as between the parties, and it does not mean that the question of law involved must be of general importance.

    12. The question of the admissibility of documents is very often a question of some importance, and it appears from the judgment of Ramaswami, J. that he did not decide the question whether the judgment of Title Suit No. 32 of 1896 will operate as res judicata. He proceeded be the assumption that it would not operate as res judicata, but still he was of opinion that the decree of the previous suit and the map incorporated therein were admissible for the purpose of determining-what was the northern boundary of the coal land. The question on the whole appears to be a sub-stantial question, and, therefore, I would have been inclined to grant the certificate even if I would have been of the opinion that the decree of the Court was a decree of affirmance. In any view of the matter, therefore, these applications must succeed.

    13. The applications are allowed, and a certificate will be granted to the petitioner for leave to appeal to the Supreme Court under Article 133 of the Constitution of India read with Section 110 of the CPC against the decisions of this Court in Appeals from Original Decrees Nos. 252 and 254 of 1948. The petitioner is entitled to her costs; hearing fee two gold mohurs in each case.

    14. Ahmad, J.:— I agree.

    A/V.S.B

    15. Application allowed.

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    Comments

    Smt. Kashi Bai v. Brajendra Nath And Others Opposite Party.
    (Mar 31, 1953)