Allahabad Court June 1909 Judgments
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Makhan Lal Vs. Janki Parshad and ors.
Court: Allahabad
Decided on: Jun-18-1909
Reported in: 2Ind.Cas.996
1. This appeal arises out of a suit for pre-emption based upon a contract embodied in the wajib-ul-arz of 1283 fasli. Since that wajib-ul-arz was framed a partition of the village has taken place with the result that the plaintiff is no longer a co-sharer of the vendor in the same mahal though he holds a share in the village. The vendee is a stranger. The question is whether after partition the contract embodied in the wajib-ul-arz can be enforced. We are of opinion that the mere circumstance of a partition having taken place does not necessarily abrogate a contract entered into by the co-sharers before partition whether the contract subsists or not depends upon the terms of the particular wajib-ul-arz and the surrounding circumstances of each case. In the wajib-ul-arz in question the right of pre-emption is given to five classes of persons, namely (1) own brothers and nephews, (2) descendants from a common ancestor, (3) co-sharers in the same khewat, (4) co-sharers in the same thok, (...
Durpati Bibi and anr. Vs. Ramrach Pal
Court: Allahabad
Decided on: Jun-16-1909
Reported in: (1909)ILR31All527
Banerji and Tudball, JJ.1. The facts of this case are these. On the 24th of December 1898, Chunni Lal, the predecessor in title of the plaintiffs' appellants, obtained a money decree against Sham Lal, Lachhmi Narain and others. Lithe suit in which that decree was passed an application had been made for attachment before judgment and in pursuance of that application certain shops were attached on the 11th of June 1898. Several applications were made for execution of the decree but they were in fructuous. Finally the plaintiffs applied for sale of the attached shops. The defendant Ramrach Pal thereupon preferred an objection and on his objection being allowed on the 15th of September 1906, the suit out of which this appeal has arisen was brought by the plaintiffs on the 17th of May 1907 for a declaration that the shops in question were liable to sale in execution of their decree. The title set up by Ramrach Pal was acquired by him under the following circumstances. One Musammat Janki obt...
Ghayas-ud-dIn Vs. Sheikh Ghulam Abbas and anr.
Court: Allahabad
Decided on: Jun-16-1909
Reported in: 2Ind.Cas.854
Griffin, J.1. The facts which give rise to the present appeal are as found by the lower appellate Court that the defendant-appellant before me, a co-sharer in the village bought the house of one Durga tenant of the village, in the year 1902 at an auction sale and that shortly before the institution of the present suit he began constructing a pucca two storied building on the site of Durga's house. The lower Court finds the site to be part of the common land. The plaintiffs, who are also co-sharers, sued for demolition of the new building and for injunction restraining the defendant from building on the site of Durga's house. The lower appellate Court held on these facts that the plaintiffs were entitled to the relief asked for and decreed the plaintiffs' suit. The defendant comes here in second appeal. The right of a co-sharer to restrain another co-sharer from building on common abadi land has been recognised in a long series of decisions in this Court. It is sufficient to refer to a ...
Madan Lal Vs. Gobardhan Das and ors.
Court: Allahabad
Decided on: Jun-15-1909
Reported in: 2Ind.Cas.621
Griffin, J.1. The appellant in this Court is the judgment-debtor. His objections were considered by the Court of first instance which found generally against him. He appealed to the Court below. His appeal was filed on the 3rd February 1908. Upon that day the 26th of May 1903 was fixed for hearing. On the date fixed for hearing the vakil informed the Court that he was unable to argue the case on behalf of the judgment-debtor appellant as no one had come to instruct him until that moment in Court. It is stated in the record of the proceedings that counsel for the respondents opposed any postponement of the case. Thereupon the lower appellate Court passed an order refusing to postpone the case and dismissing the appeal with costs. The judgment-debtor comes here in second appeal to this Court. As to the first ground of appeal I agree with the Court below that under the circumstances the Court was justified in refusing to postpone the case. But it is contended, however, that as a pleader a...
Gaya DIn and anr. Vs. Musammat Dulari and ors.
Court: Allahabad
Decided on: Jun-15-1909
Reported in: 2Ind.Cas.839
1. This appeal arises out of a suit for foreclosure of a mortgage made on the 19th of August, 1898, by one Kali Charan now deceased the first husband of Musammat Dulari defendant No. 1. The property comprised in the mortgage consists of five shops and a house. Of these shops Kali Charan mortgaged one to the defendant Mathura Parshad on the 16th of December, 1898. After Kali Charan's death his widow Musammat Dulari sold this and another shop to the defendant Mathura Parshad on the 28th of January 1902, and on the same date she sold three shops to the defendants Nos. 3 and 4.2. The suit was contested on two grounds first that Kali Charan was a minor at the date of the mortgage executed in favour of the plaintiffs and second that there was no consideration for the mortgage.3. The Court below found that consideration had been paid for the mortgage made by Kali Charan but it was of opinion that he was a minor at the date of the mortgage and, accordingly, dismissed the suit.4. Upon the quest...
Musammat Phikna Vs. Rahmat Ullah Sardar and ors.
Court: Allahabad
Decided on: Jun-14-1909
Reported in: 2Ind.Cas.622
1. The lower Court has given 2 reasons for dismissing the suit brought by Musammat Phikna. The 1st reason is that the present suit is barred by a decree dated 6th December 1895 and the 2nd reason is that the provisions of Section 30 of the Code of Civil Procedure 1882 have not been complied with and that it was necessary in the present case that they should be complied with before the suit could be maintained. We have no doubt in our minds that the Court below has erred in regard to the 1st reason and we would only refer to the judgment of their Lordships of the Privy Council in Parsotam Gir v. Narbada Gir 21 A. 505. In the previous suit the matters in issue and also in issue in the present case had not been finally decided. In fact there was no decision upon any one of the points that were in controversy between the parties. All that the Court which decided the case on 6th December 1895 held was that the application for permission to sue on behalf of other persons interested under Sec...
Shiam Lal Vs. Makhan Lal and ors.
Court: Allahabad
Decided on: Jun-14-1909
Reported in: 2Ind.Cas.629
1. The suit which has given rise to this appeal was brought by the respondents to recover from the appellant arrears of rent under a lease granted to him on the 8th of August 1898. The defence to the claim was that in consequence of frost the Government granted a remission of revenue and also of the rents of tenants the amount remitted to the latter being Rs. 633-3-10 and that the defendant was, therefore, entitled to a remission proportionate to that amount. It was also urged that he was entitled to a further remission of two sums, namely Rs. 48-8-0 and Rs. 52-8-8 on account of lands acquired by Government. The defendant is the thikadar of the zemindari and claimed these remissions because as he urged the quantity of land in his possession had been reduced by the acquisitions made by Government and also because the rent of his tenants was remitted by Government.2. The Court of first instance allowed a deduction of the amounts claimed by the defendant and made a decree for the balance ...
Fayazul Rahman Vs. Muhammad Usman and ors.
Court: Allahabad
Decided on: Jun-14-1909
Reported in: 2Ind.Cas.865
1. One Abdullah owned among other parties the following:(a) Nizamuddinpur 10 out of 20 biswas.(b) Tayabpur 171/2 biswas out of 20 biswas.2. Abdullah's wife Mubarak-un-Nissa brought an action against him for her dower. The suit was compromised and the terms of the compromise were embodied in the decree dated the 29th August, 1889. The portions of the decree bearing on this appeal are: 'The defendant (Abdullah) gives the whole of the undermentioned properties to the plaintiff (Mubarak-un-Nissa) in lieu of Rs. 10,00) the dower claimed by her. Now the plaintiff is the owner of the said properties but the defendant will retain possession over 10. biswas of Nizamuddinpur alias Manwala for his life. The income of it will be appropriated by the defendant and he, in case of urgent necessity, may hypothecate, pledge or sell his life-estate (dakhal keen hayatee) in the 5 biswas out of the said 10 biswas.On the death of the plaintiff those who may be the heirs of both the plaintiff (Mubarak-un-Nis...
H.B.S. Dhaliwall Vs. Mrs. P. Puech
Court: Allahabad
Decided on: Jun-10-1909
Reported in: 2Ind.Cas.637
Alston, J.1. This was a suit brought by the plaintiff to have it declared that she had a right of way over the defendant's land. Mr. Dyer, a barrister who resided and practised at Mussourie, at one time owned two houses known as the 'Whitehouse' and the 'Chalet.' He sold the Whitehouse to the plaintiff. Three years afterwards his widow sold the Chalet to the defendant. When the plaintiff bought the 'Whitehouse' there was a narrow passage through which people at some inconvenience' could approach its outhouses. People carrying loads, however, could not pass along the passage at all, so narrow was it. The plaintiff's contention was that because of the narrowness of the passage referred to, Mr. Dyer, who occupied the Chalet, was in the habit of allowing people to approach the Whitehouse outhouses by using a pathway that was admittedly within the Chalet boundaries. The plaintiff accordingly claimed that the defendant Dyer's successor-in-title was bound in law to allow her the same privileg...
Badri Nath Vs. Musammat Mantorna Kuwari and anr.
Court: Allahabad
Decided on: Jun-09-1909
Reported in: 2Ind.Cas.623
Karamat Husain, J.1. The suit out of which this appeal arises was for pre-emption on the basis of custom alleged to be embodied in the wajib-ul-arz of 1873. Both the Courts below have dismissed the suit on the ground that the wajib-ul-arz is only a record of a contract and not of a custom. The lower appellate Court in arriving at this conclusion has relied upon a robkar of the Settlement Officer. The following are the remarks of the learned Judge. 'The Settlement Officer has recorded a proceeding dated the 12th of July 1875 in which he has explained that where no custom was ascertained but the co-sharers agreed to certain matters being recorded in the wajib-ul-arz the word 'ainda' or 'in future' has been added. There is thus no doubt that the condition as to pre-emption was not based on previously existing custom.' The plaintiff has preferred a second appeal to this Court and the following points have been argued by his learned vakil. (a) The robkar dated 12th July 1875 is not admissib...
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