P. N. BHAGWATI, D. A. DESAI, J.

( 1 ) THIS Second Appeal comes before us on a reference made by M. U. Shah J. The appellant is the original plaintiff and the respondents are the original defendants. The appellant filed Civil Suit No. 168 of 1968 in the Court of the Civil Judge (Senior Division) Jamnagar claiming permanent injunction restraining the respondents from obstructing the appellant in the exercise of his right of way of his fields bearing Survey No. 719 and 732 through the Shedha that is the boundary line of the fields of the respondents. Since the fields of the respondents over which Lakshman Bhatkar v. Babaji Bhatkar 8 Bom. the right of way was claimed by the appellant were situate in the Sim of Jamnagar but outside its municipal limits the suit fell within Clause (c) of sec. 6 (iv) (c) of the Bombay Court-fees Act 1959 and a fixed Court-fee of Rs. 15/was accordingly paid by the appellant on the plaint. The Civil Judge (Senior Division) Jamnagar referred the suit for disposal to the Second Joint Civil Judge (Junior Division) Jamnagar and after the suit was transferred to him written statements were filed on behalf of the respondents in answer to the suit. Though several contentions were taken in the written statement none of them challenged the jurisdiction of the Second Joint Civil Judge (Junior Division) Jamnagar to try and dispose of the suit. The Second Joint Civil Judge (Junior Division) Jamnagar heard the suit on merits and taking the view that on the evidence the appellant had failed to establish the right of way claimed by him dismissed the suit. The appellant thereupon preferred Civil Appeal No. 180 of 1969 in the District Court Jamnagar against the decision of the Second Joint Civil Judge (Junior Division) Jamnagar. In the appeal also no contention was raised on behalf of any of the parties that the Second Joint Civil Judge (Junior Division) Jamnagar had no jurisdiction to try and dispose of the suit and the decree passed by him was therefore a nullity and must be set aside. The appeal was heard by the District Judge on merits and after considering the evidence on record the District Judge came to the conclusion that the right of way claimed by the appellant was not established and he accordingly dismissed the appeal. This led to the filing of the present Second Appeal in this court. When the Second Appeal came up for hearing before M. U. Shah J. a new contention was sought to be advanced on behalf of the appellant that the subject matter of the suit was not susceptible of monetary evaluation and therefore it could not be predicated that the suit was one wherein the subject matter did not exceed in amount or value Rs. 10 0 and consequently the Second Joint Civil Judge (Junior Division) Jamnagar had no jurisdiction to try and dispose of the suit. The suit could be tried and disposed of only by the Civil Judge (Senior Division) Jamnagar. This contention was supported by a recent decision given by S. H. Sheth J. sitting as a single Judge in Khimji Jiva v. Narendrakumar (1972) XIII G. L. R. 23 The respondents gave a two-fold answer to this contention. One answer was on the merits of the contention. The respondents urged that the contention of the appellant supported though it was by the decision of S. H. Sheth J. was not well-founded and the decision of S. H. Sheth J. required reconsideration by a Division Bench of this court. The respondents also urged in the alternative and that was the second answer given by them that in any event even if the objection to the jurisdiction of the Second Joint Civil Judge (Junior Division) was well-founded the appellant could not be permitted to take it for the first time at the hearing of the Second Appeal since it was not taken at any earlier stage of the proceedings. The questions arising on these rival contentions were of great importance since they affected a large number of suits in the mofussil and hence M. U. Shah J. raised the following two questions and referred them

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