1. This is an application for leave to appeal to His Majesty in Council and it arises out of a suit brought by the present petitioner against the respondent to England for declaration of his title to certain lands and recovery of possession thereof and also for mesne profits. The suit was decreed with coats and mesne profits by the Additional Subordinate Judge of Nadia. Against that decision the respondent to England preferred a first appeal to this Court. By their judgment dated 3rd July 1936 Mukerji and Jack, JJ., allowed the appeal and dismissed the petitioner's suit. Against that judgment the petitioner has asked for leave to appeal to His Majesty in Council. The only point that arises to show the competency of the appeal is whether it satisfies the condition as to valuation as laid down in para. 1 of Section 110, Civil P.C. Now in the plaint para. 7, the plaintiff states that he for the present claims Rs: 400 as approximately due on account of mesne profits. Para. 8 runs as follows:

The present market value of the disputed properties is Rs. 2,100 by guess. Hence, for the purpose of jurisdiction of Court and of court-fees the present suit is instituted at a claim of Rs. 2,500 inclusive of mesne profits.

2. Issue 7 was raised: "Were the defendants in wrongful possession of the lands in suit as alleged by the plaintiff?" and issue 8 "is the plaintiff entitled to get any mesne profits from the defendants?" On these two issues the learned Subordinate Judge held that the plaintiff was entitled to mesne profits for a period of four years for a total sum of Rs. 4,248; in accordance with this finding the suit was decreed for a sum of Rs. 6,348. The defendants' appeal was also valued at Rs. 6,348. It is now contended by the plaintiff-petitioner that he was in error in stating the market value of the disputed properties to be Rs. 2,100 and that on the very findings of the Courts below he is entitled to fix the market value at a much higher figure. This argument is amplified in ground No. 18 of the petition. Shortly stated it comes to this: The learned Subordinate Judge has found that the defendant company has been enjoying the rents and profits at the rate of Rs. 1 per bigha and that the yearly rents and profits thus enjoyed would amount to Rs. 1,062. On this basis even at 12 years purchase the value of the property would be more than Rs. 10,000. The value of the mesne profits alone for the period of one year 11 months from the date of the purchase up to the date of the suit would come to Rs. 2,0368.0 which 1 would fall short of Rs. 10,000 by the sum of Rs. 7,963-8-0 only. So that even less than 12 years purchase would suffice to make up the statutory limit of Rs. 10,000. It is stated that through mistake the valuation of the land was stated in the plaint as Rs. 2100. The suit was tried by the Subordinate Judge and a first appeal was also heard by this Court, and so, it is pointed out, there would be no change of forum if the "real value were mentioned in the plaintiff and consequently the defendant has not been prejudiced". The contention is that a mere mistake in stating the value in the plaint where the other side has not been prejudiced by having to resort to a different forum, does not amount to estoppel in law so as to prevent the plaintiff from showing that the, real value of the subject matter in suit in the Court of first instance was Rs. 10,000 or upwards. In support of this we have been referred to a number of cases which require examination.

3. The case in Satish Chandra Joardar v. Birendra Nath Roy was one which there had been a second appeal, and the applicant for leave was the plaintiff. It was held by Rankin, C.J., Mukerji, J. agreeing, that the mere fact that a lower valuation was put on the plaint for the purposes of court-fee and jurisdiction should not be allowed to 'operate as estoppel against the plaintiffs for the purposes of a Privy Council appeal and the High Court was entitled to investigate the real value of the subject matter. The head note of the report proceeds:

For an appellant to proceed to a higher Court immediately is to take an advantage, but there is no authority for the proposition that to proceed to a lower Court and take a chance of what the lower Court would do is so.

4. The authority of the latter view was weakened by the remark of Rankin, C.J. in a later case: Mahendra Narayan Ray v. Janaki Nath Ray . That was a case arising out of an application made by the defendant against a judgment of the High Court in second appeal. It was held that:

The doctrine, that a party cannot both approbate and reprobate applies to the case where he appeals to the lower appellate Court upon a valuation inconsistent with the valuation upon which he seeks a certificate enabling him to appeal to the Privy Council.

5. Rankin, C.J. pointed out that the value referred to in section 110 of the code is the real or market value and that there is no representation by the party as to the market value when he brings his suit or his appeal where under the Court-fees Act or otherwise a plaint or memorandum of appeal is not required to be valued according to the real or market value. Then he goes on:

There are other cases also where the real or market value is the test. In all such cases a party, who sues in or appeals to a Court which would have no jurisdiction if the value of the land exceeded Rs. 10,000, debars himself from claiming at a later stage to have the value of the subject matter of the suit in the Court of first instance treated for purposes of an appeal to England as exceeding Rs. 10,000.

6. Therefore the condition there laid down was first that the real or the market value was the test of the valuation put on the plaint and further that the litigation was brought in a Court which would have no jurisdiction if the value exceeded Rs. 10,000. In the present case, however, there is no question of forum, whether the value stated in the plaint was the real market value or whether it was much higher, as now claimed in the present petition. In Mohammad Hossain Khan Saheb v. Mansur Ali there was a second appeal to the High Court and the plaintiff was the applicant for leave. It was pointed out that particular case was one in which the plaintiff though he had a wide discretion in the matter had to value his claim at its actual or market value... Moreover by reason of the fact that he valued the suit at Rs. 2,250 he was able to take the defendants through three Courts up to now, one of which Courts the latter could have avoided if the suit had been originally laid at over Rs. 10,000. In such circumstances we are clearly of opinion that the plaintiff is precluded from showing that his valuation as given in the plaint was not real....

7. In this judgment reference was made to the case in Sm. Radharani Dassya v. Puma Chandra . That was also a case of second appeal to the High Court and the plaintiff was the applicant. The facts however were entirely different. The relevant passage runs thus:

It appears that, after scrutiny had been made of these accounts a large sum was found by the head clerk to be due to the plaintiff on the Receiver's account, but the plaintiff still brought this suit valuing his relief at Rs. 2,500; at no stage up to the present has he increased that valuation or paid any more court-fee.

8. It was held that the claim of the suit as involving over Rs. 10,000 could not be maintained. The case in Rameshwar Khemka V. Siddheswar Ghosh was also one second appeal, the defendant being the applicant. It appears that the defendant had taken objection to jurisdiction and valuation in the trial Court, but did not press his objection and the question was decided in favour of the plaintiff. It was held that the defendant by acting on the low valuation of the suit made by the plaintiff was estopped from alleging that the value of the subject matter was higher for the purpose of his appeal to England. In this judgment reference was made to the case in Mutusawmy Jagavera Yettapa Naikar v. Vencataswara Yettia (1863) 10 M I A 813 in which also the question of forum was involved. It was pointed out that the suit which was filed in the Sadar Ameen's Court could not have been so filed if the value had been more than Rs. 2,500. We have next been referred to the case in Vasireddi v. Secretary of State AIR 1932 Mad 125. There also it was held by Ramesam, J.

When the defendant adopts the plaintiff's court-fee valuation of the suit property for the purpose of choosing the forum for his appeal against the decree in the suit, he is estopped from thereafter contending that the real valuation is lower than the court-fee value given in the plaint.

9. In this case reference was made to the case in Kumar Basanta Kumar Roy v. Secretary of State (1910) 14 C W N 872. It has been contended by the other side that the authority of the decision in this case has been overruled by the decision of their Lordships of the Judicial Committee in Mangamma v. Mahalakshmamma . But that; was on the question as to whether the mesne profits pending the suit were to be added. But the other point that was decided does not appear to have been dissented from in any other case, namely,that the valuation made in conformity with the stamp law does not prevent a party from obtaining leave to appeal by proving that the real value of the subject matter does not fall short of the appealable amount.

10. And it was pointed out that:

A defendant who had previously adopted the "value given in the plaint for the purpose of an appeal preferred by him should not be allowed to contest that valuation on the principle that a party cannot both approbate and reprobate.

11. In saying this Jenkins, C.J. pointed out that there was really no conflict of opinion as between Kristo Indro Saha v. Huromonee Dassee (1873) 1 I A 84 and Baboo Lekraj Roy v. Kanhya Singh (1873) 1 I A 317 both of which were decided by the same members of the Board. It is contended for the opposite party to this application that the authority of the decisions quoted above has been swept away by the decisions of their Lordships of the Judicial Committee in Rajendra Kumar Ghose v. Rash Behari Mondal . That was a case in which the question arose as to whether the requirement of Para. 1, Section 110, Civil P. C, had been, satisfied, the applicant for leave being the plaintiffs against a judgment given in first appeal before the High Court. It appears that the plaintiffs-appellants had stated the valuation of the Hand brought in the suit to be Rs. 5,000 and claimed Rs. 100 for mesne profits. The Sheristadar in the trial Court reported that the plaint had been under-valued whereupon the plaintiffs were directed to produce their auction sale certificate to assist the Court in determining the proper value and an enquiry was started. The plaintiffs filed an application stating that the sum of Rs. 5,000 at which they had valued their plaint was the proper market value of the lands in suit ascertained after careful enquiry. In support of this the plaintiff's Naib filed an affidavit, which was accepted by the Subordinate Judge and the plaint was ordered to be registered "without any increase of court-fees. But as their Lordships pointed out, the matter did not rest there. In the written statements of the respondents it was again objected that the value of the suit land was higher than that stated in the plaint and upon that allegation an issue was framed: "Is the suit properly valued and stamped?" On that issue the finding of the Subordinate Judge was that it had not been shown on the respondent's side that the stamp paid on the plaint was insufficient. This finding was for the purposes of their appeal to the High Court accepted by the plaintiffs. In their petition for leave to appeal against the judgment of the first appellate Court, to quote the words of the Judicial Committee:

The allegation, it will be seen, is taken almost textually from S 110 of the Code, but with a variation which suggests the assumption that the values in each case need only be the values at the date of the petition, and not, to take only the subject matter of the suit in the Court of first instance, its value at the date of commencement-in this cafe more than six years before. And this assumption seems to have been accepted by the High Court, for, in spite of an affidavit on behalf of the respondents in which it was stated that the subject matter of the suit in the Court of first instance had been determined at Rs. 5.000, the High Court on 20th June 1927 ignoring that fact altogether and stating that there was a dispute between the parties as regards the value of the subject matter of appeal to His Majesty, directed the Court of first instance purporting to act in terms of Order 45, Rule 5 to enquire into the matter and to submit a report as regards that value, and nothing more.

12. The question of the value of the property in that suit in the Court of first instance was not touched and no doubt was cast upon the correctness of the affidavit of the plaintiff's Naib either by the trial Judge or by anyone else. Thereupon the Judicial Committee remarks:

The Board is unable to accept either the reasonings of the learned Judges or their conclusion. They have not addressed themselves to what was really the only question, namely, whether the appellants had established that each of the two conditions imposed by Section 110 had been separately fulfilled. In truth the appellants had not even attempted to establish the first of these conditions. Their own evidence on the subject negatived the case which it was necessary for them to prove. And no question of estoppel arose for the reason that the appellants did not attempt to question the correctness of the evidence they had adduced, nor did they express any desire either to vary or to qualify it.

13. Thus the decision in the case was strictly on the facts thereof. So far as the question of law is concerned the decision merely lays down that in order that an appeal to the Privy Council may be competent in a case under Section 109(a), Civil P. C, the two conditions laid down in Section 110, as to the amount or value of the subject matter of the suit in the Court of first instance being at least Rs. 10,000 and the subject matter in dispute on appeal to the Privy Council being of similar value, must be separately established. The decision does not lay down any new principle, and surely it is too much to say, as has been said by the learned advocate for the opposite party, that it has swept away the effect of previous decisions. On the contrary this case does not touch the point whether the plaintiff is entitled to question the valuation as given by him in the plaint.

14. On the other hand the trend of authorities is to the effect that whether by way of estoppel or of res judicata the Courts have considered whether the question of valuation has been raised and decided at an earlier stage and also whether the opposite party has been led to act upon such valuation, as for instance by way of second appeal; or to put it another way, whether the party seeking to vary the valuation for the purpose of appeal to England is in the position of approbating and reprobating. Where this is the case, variation of value should not be allowed. But where this is not the case, a party should not be shut out from his right to appeal to England merely because of an erroneous valuation in the plaint.

15. In the present case the facts are different from those in Rajendra Kumar Ghose v. Rash Behari Mondal . In the trial Court there was no question raised as to the market value of the property, nor was there any decision thereon. The plaintiff now expressly says that the valuation put in the plaint was wrong. But this has not prejudiced the defendant in any way in his appeal and he merely paid the court-fees on the low valuation as put by the plaintiff. In these circumstances it seems to us it will not be right to say that the plaintiff is estopped from showing that the subject matter in the suit in the Court of first instance was over Rs. 10,000. It may be added that in this case, if the first condition as to the value of the suit is satisfied, no question will arise as to the second condition regarding the value of the subject matter in dispute on appeal. There is dispute now as to the valuation of the suit and so we refer such dispute for report to the Court of first instance under Rule 5, Order 45, Civil P.C. The Court of first instance will determine the amount of the valuation of the property in suit and submit its report to this Court as early as possible.

McNair, J.

16. I agree with the decision and the order made by my learned brother and with the reasons which he has given. In this application the plaintiff seeks leave to appeal to the Privy Council and the first ground of objection is that the provisions of Section 110, Civil P.C., have not been fulfilled in that the value of the subject matter of the suit in the Court of first instance and on appeal does not amount to Rs. 10,000. The plaintiff in his plaint valued his claim at Rs. 2,500 alleging that by guess the market value of the disputed property was Rs. 2,100 and mesne profits "approximately" Rs. 400. The Subordinate Judge made a decree for Rs. 6,348 allowing Rs. 4,248 for mesne profits. The defendant Company valued their appeal at Rs. 6,348. The Subordinate Judge assessed mesne profits on a rental basis of Re. 1 per bigha, and as the property comprises an area of 1,062 bighas the applicant urges that even at 12 years purchase the value of the property claimed excluding mesne profits, must have been over Rs. 10,000 at the institution of the suit. The only question which has been seriously argued is the value of the property at the institution of the suit. The respondent contends that the applicant should now be precluded from denying the figure at which he valued his claim in the plaint. He has sought to bring this objection under the doctrine of estoppel, and he has quoted various decisions in which a party has been so precluded on the ground that he cannot approbate and reprobate. It appears to me that the guiding principle should be whether the original valuation by the appellant to the Privy Council has resulted in the other party being in any way prejudiced, as, for instance, in some of the decision referred to by my learned brother, by being forced to adopt a forum which otherwise he would not have adopted. No such principle comes into this case. The difference has been pointed out by Sir Lawrence Jenkins in his decision in Kumar Basanta Kumar Roy v. Secretary of State (1910) 14 C W N 872 and it is apparent in the two decisions in Kristo Indro Saha v. Huromonee Dassee (1873) 1 I A 84 and Baboo Lekraj Roy v. Kanhya Singh (1873) 1 I A 317. In the decision in Kristo Indro Saha v. Huromonee Dassee (1873) 1 I A 84 referred to above the plaintiffs were the petitioners and had sued to recover possession of certain property. In their application the petitioners stated that no question was raised by the defendant in the first Court as to the valuation to be placed upon the claim by the plaintiffs and those values had been accepted by the defendant when she appealed to the High Court from the decrees against her of the first Court. The judgment of the Board was delivered by Sir James Colvile who said:

The defence as well as the plaintiff has taken the values at the rate fixed in the plaint. The defendant has obtained the benefit of an appeal to the High Court upon the facts by adopting the plaintiffs' valuation. She cannot afterwards come here and object to that valuation. The defendant therefore was precluded in that case from denying the value which she had accepted for the purpose of her appeal to High Court.

17. In Baboo Lekraj Roy v. Kanhya Singh (1873) 1 I A 317. the plaintiff sought to appeal and it was objected that he could not be heard to allege that the property was of greater value than he had himself assessed it for the purposes of paying the various fees for institution and for appeal. That, so far as I understand it, is the precise objection which has been raised on this application. Markby, J. who heard the application pointed out that the valuation which had been made in the plaint was for the purposes of court-fees and that acts of the Legislature which impose duties of this kind are always construed in + of the tax-payer, He however refused leave in order to enable the parties to obtain a decision from the Privy Council and Sir James Colvile who again delivered the judgment of the Board said:

It was decided on the old stamp law, that a valuation made in conformity with that law did not prevent a party from obtaining leave to appeal where the real value did not fall short of the appealable amount.... The stamp duties imposed for fiscal purposes are calculated on a certain rule fixed by law, but the right of appeal depends on the value which is a matter of fact.

18. In the application now before us the value set upon his claim by the plaintiff appears to me to have been an estimate for the purposes of the stamp law and he is not precluded, in my opinion, from having an enquiry in which it may be determined what, as a matter of fact, is the actual value of the property. I agree with the order which my learned brother has made.