Lord Blanesburgh—

This is a plaintiffs' appeal from a decree of the High Court of Judicature at Port William, in Bengal reversing a decree of the Sub-ordinate Judge at Khulna and dismissing as against the respondents the appellants suit.

The respondents appearing are 9 out of an original concourse of 414 defendants who at the commencement of the litigation on 30th April 1921 were so far as was physically possible, in occupation of an area of lands approximately 6,000 bighas in extent situate in the Collectorate of District Khulna in Bengal. The appellant's claim in the suit was to recover from the impleaded defendants khas possession of these lands. Their case in substance, it will suffice to state it in the barest outline, was that the respective interests of the defendants in the lands were no more than encumbrances within the meaning of S. 11, Bengal Regulation 8 of 1819 and that the appellants as auction-purchasers of the putni in which the 6,000 bighas were comprised had right to avoid these incumbrances and recover for themselves khas possession of the entirety of the lands. Very many of the defendants submitted in the course of the proceedings to the appellants' demand for possession of their holdings and at the trial the claim was resisted by the respondents alone, the area of their occupancies representing a mere fraction of the acreage originally in suit. The respondents' resistance had no immediate result. The learned Subordinate Judge, as has been seen, decreed the suit against them. On appeal their resistance was more successful. By the decree of the High Court of 9th February 1927 the suit as against them was dismissed. Hence the present appeal made pursuant to a certificate of fitness granted by the High Court on 15th August 1927.

To the competence of the appeal so authorized a preliminary objection was at once taken by the appearing respondents. This was, they said, "an appeal from a decree passed on appeal by a High Court": case (a) of S. 109, Civil PC. For such a decree to be appealable to His Majesty in Council the requirements of para. 1, S. 110 of the Code must be observed, the respondents rightly observing that para. 2 of the section is in view of the decision of the Board in G. Mangamma v. M. Mahalakshamma, AIR 1930 PC 44=121 IC 513= 57 IA 56=53 Mad 167 (PC) (at p. 60 of 57 IA) inapplicable to the present case. S. 110, para. 1, provides that

"the amount or value of the subject matter of the suit in the Court of first instance must be ten thousand rupees or upwards and the amount or value of the subject matter in dispute on appeal to his Majesty in Council must be the same sum or upwards."

In granting a certificate that the case was a fit one to be taken to His Majesty in Council the High Court in the respondents' submission had omitted to have regard to the fact that the value of the subject-matter of the suit in the Court of first instance had at the instance and on the evidence of the appellants themselves been found to be Rs. 5,100 and no more. The respondents accordingly objected that in these circumstances there was no warrant in law for the certificate which the High Court had granted that the appeal was incompetent and ought not to be entertained. This objection of the respondents fatal to the appeal if well taken was at once argued as a preliminary issue and with it this judgment is alone concerned.

The true effect of S.110 of the Code as above quoted is in two presently relevant respects well settled by authority. First the word "and" where it occurs in the section means "and" and not "or" each condition must be separately fulfilled. Secondly as regards "the amount or value of the subject-matter of the suit in the Court of first instance" the material date is that of the institution of the suit. The facts relied upon by the respondents in support of their objection must be regarded with the true although not perhaps the obvious constitution of the section in view. Thus regarded, these facts are so str