JUDGMENT
1. After hearing the learned Counsel for the appellants in this case we are clearly of opinion that the appeal must fail.
2. The relevant facts to be stated are as follows:
3. In the year 1882 one Muhammad Rahmat Ali executed an agreement whereby he undertook to pay to his daughter-in-law Musammat Amina Khatun a sum of Rs. 15 a month for food and clothing. This payment was to be made to her during her life-time.
4. In order to secure the performance of this undertaking Saiyid Rahmat Ali hypothecated a 5 biswas muafi share in the village named Phondapur and charged this property with the allowance which he had contracted to give his daughter-in-law. It was distinctly provided by this agreement that if Rahmat Ali failed to pay the said monthly allowance of Rs. 15 any month, the lady was to be entitled to take possession of the property which was charged and to realise the income thereof under her own supervision and to spend the same for her food and clothing.
5. Pausing here, it is clear beyond all doubt that the lady if she took possession was to be entitled to bring to her use the entire income of the property upon which her allowance had been charged during her life-time.
6. It is apparent from the judgment in this case that Amina Khatun has had on more than one occasion to bring suits to enforce this agreement.
7. Rahmat Ali himself has died but he has left daughters, Musammat Khudajiatul Kubra and Musammat Atiqatul Kubra, who are the plaintiffs in the present suit.
8. The other issue of Rahmat Ali is Sahib Saqib Hussain who is married to Musammat Amina Khatun.
9. In the year 1920 Musammat Amina Khatun brought a suit against the present two plaintiffs, Musammat Khudajiatul Kubra and Musammat Atiqatul Kubra, for possession of a 2 1/2 biswas share of the property in Mauza Phondapur.
10. It appears that these ladies were in possession of this 2 1/2 biswas share, that being one-half of the 5 biswas share upon which Rahmat Ali had created the charge in favour of his daughter-in law Musammat Amina Khatun.
11. Full particulars of this case are not before us. A11 we have on record is the judgment of the Munsif. There are also one or two copies of certain statements which were made in the course of this case.
12. According to the finding of the Court below the lady Amina Khatun, alleged apparently that a sum of Rs. 54/- odd was owing to her on account of arrears of the allowance to which she was entitled and she asked to be allowed to enforce the agreement by taking possession of the property charged with her maintenance including the 2 1/2 biswas of this property which were in the possession of the present plaintiffs at that time.
13. According to what is stated in the judgment of the Subordinate Judge, this suit was decreed ex parte, but after due service upon Khudajiatul Kubra and Atiqatul Kubra.
14. In execution of that decree, possession over this property, has passed to Musammat Amina Khatun.
15. It is important to observe that neither of the defendants in that suit has ever made any attempt to challenge the decree in appeal.
16. Instead of doing this they have launched the suit out of which this present appeal has arisen with all sorts of allegations directed against Musammat Amina Khatun with respect be the conduct of the earlier suit in the Munsif's Court It is said that the suit was brought collusively and fraudulently, and it is also sought to be made out that the decree of the Munsif under which possession passed to Amina Khatun is altogether void for want of jurisdiction. "With regard to this plea of want of jurisdiction the case which was put for the plaintiff was this, namely, that the value of this 2 1/2 biswas share which has passed into possession of Amina in execution of decree is Rs. 7,000. It is pointed out that this being the value of the property in suit in the case which was tried by the Munsif the Munsif had no jurisdiction to give a decree for possession inasmuch as his pecuniary jurisdiction is limited to suits of a value not exceeding Rs. 1,000 or at most Rs. 2,000 if he has been specially invested with higher powers.
17. The question really is whether these plaintiffs are entitled te maintain a suit on this allegation. We are clearly of opinion that no suit of this kind can be maintained to set aside the Munsif's decree on the ground of want of jurisdiction.
18. It is perfectly clear on all hands that when a suit is filed in a Civil Court the pecuniary jurisdiction of the Court is primarily determined by the valuation which the plaintiff puts upon the subject-matter of the suit.
19. It may be, that sometimes the value of the suit is exaggerated and sometimes it is underestimated, but at any rate, when a suit is brought and the Court has to make up its mind as to whether it is within its pecuniary jurisdiction, all that it can rely on is the valuation of the subject-matter which is given in the plaint.
20. Of course, it is open to a defendant when he appears to answer the suit, to raise the plea that the suit has not been properly valued and to show, if he can, that the Court in which the suit has been brought has no jurisdiction to try it. But clearly, if no such plea is taken by a defendant when he has had the opportunity of raising it, it cannot be said that the Court has acted without jurisdiction. The Court has assumed jurisdiction on the basis of a statement made in the plaint upon which it is bound to rely, a statement which has not been challenged or corrected in any way; and so, it is not possible to argue as has been argued here that the decree passed by the Munsif in this case was altogether void for want of jurisdiction in the Munsif.
21. In this connection we may draw attention to the provisions of' Section 11 of the Suits Valuation Act, Act VII of 1887. That section lays down that unless an objection to the over-valuation or under-valuation of a suit has been raised in the Court of first instance it shall not be entertained by an Appellate Court unless, for reasons to be recorded in writing, the Appellate Courtis satisfied that the suit in appeal was wrongly valued and that the wrong valuation has prejudicially affected the disposal of the suit on its merits. This enactment operates in spite of anything contained in Section 578 of the Code of Civil Procedure which corresponds to Section 99 of the present Code. It is clearly contemplated there that any objection which is to be raised on the ground of pecuniary jurisdiction must be taken in the Trial Court at the earliest possible opportunity and where the objection is not taken it is not to be entertainable thereafter unless the Appellate Court is satisfied that there has been some miscarriage of justice on the merits.
22. If this is the law in so far as it concerns procedure in appeals, it seems to us that in no way ought it to be possible for a party against whom a decree has been passed in the circumstances we find in this case, to be able to go to another Court and institute a fresh suit for the purpose of having the decree set aside. If this sort of thing were allowed there would be no end to litigation. It is perfectly well understood of course, that the decree of a Court may be set aside by a suit brought, but it is also the rule that no such decree can be set aside except on the basis of fraud or of something akin to fraud. In the present case, although there were allegations of fraud made in the plaint, no case of fraud whatever has been made out and for this reason therefore we hold that this suit, to set aside the decree which was passed by the Munsif on the 7th of May 1920, is not maintainable. This finding of ours really puts an end to the whole of the case. It has been suggested to us that we ought, in any case, to allow an account to be taken between the plaintiffs and Musammat Amina Khatun on the ground that she is entitled under the agreement only to a sum of Rs. 15 a month, whereas, the present profits accruing from the property upon which this allowance is charged, are greatly in excess of that sum. We think it inexpedient to say anything about this claim except that the suit as framed was not a suit for accounts.
23. Another suggestion has been made to us that, in any case, under the terms of an award which is printed at pages 22 and 23 of the record, we ought to pass a money decree against Saiyid Saqib Husain the second defendant who is the husband of Musammat Amina Khatun. It is not clear to us however what decree for money could be passed against Saqib Husain and again we have to draw notice to the fact that no such relief was claimed in the plaint.
24. We are satisfied therefore that this suit was a suit which ought not to have been entertained and which though for other reasons, was rightly dismissed by the Court below. The appeal fails and is dismissed with costs including in this Court fees on the higher scale.