Allahabad Court January 1910 Judgments
Abbas HussaIn Vs. Ashfaq Ahmad and ors.
Court: Allahabad
Decided on: Jan-31-1910
Reported in: 6Ind.Cas.282
1. The facts out of which this appeal arises are as follows: The respondents to the appeal instituted a suit for declaration of title to certain landed property on the 29th of October, 1908. The defendants to that suit were two in number, one of whom was Syed Abbas Husain, the appellant before us. The date fixed for the hearing of the suit was the 3rd of December, 1908. The process-server who was charged with the service of process on Abbas Husain, went to the village in the district of Muzaffarnagar where Abbas Husain lives. He could not find the defendant or any agent empowered to accept service of summons or any person upon whom service could be made. He then came back to the Court and again made a second attempt to effect personal service upon the defendant. It appears from the report which is endorsed upon the process, that he did make some attempt to ascertain where the defendant might be found, for he reported that the defendant had gone for medical advice to Delhi. The Court un...
Tag this Judgment!Seth Nemi Chand Vs. Ganesh
Court: Allahabad
Decided on: Jan-29-1910
Reported in: 5Ind.Cas.503
Richards, J.1. The facts of the case referred are very simple. The defendant by usufructuary mortgages mortgaged to the plaintiff his proprietary rights in a holding. Since the date of the mortgage, that is to say, for nine years before the institution of the suit, the defendant has continued in occupation of certain lands comprised in the holding which were prior to the mortgages in his own cultivation. The present suit was instituted to recover possession of inter alia this land. Both the Courts below gave the plaintiff a decree subject to the occupancy rights of the defendant in the land in his own cultivation. Section 41 of Regulation II of 1877 of the Ajmere Code is as follows Any person who may have, whether before or after the passing of this Regulation, lost or parted with his/proprietary rights in any holding, either, temporarily or permanently and has since continued in occupation of any of the lands comprised in such holding which, as proprietor, he retained under his own cu...
Tag this Judgment!Debi Prashad Vs. Shama Charan
Court: Allahabad
Decided on: Jan-29-1910
Reported in: 5Ind.Cas.584
1. This is a reference by the learned Munsif of Allahabad, purporting to be made under Section 617 of the old Code of Civil Procedure. The question submitted is, whether the salary of a public officer on leave is attachable, and whether the nature of his leave and the fact of his drawing half pay can affect the attachment of his salary. It appears to us that it was not competent for the learned Munsif to refer this question to this Court and for this reason. The decree which was in the course of execution was not a final decree but was appealable. Section 617 provides that if before or on the hearing of a suit, or an appeal in which the decree is final, or if in the execution of any such decree (i.e., any decree which is final), any question of law or usage having the force of law * * * arises, on which the Court may * * * * refer the matter to the High Court for decision. Inasmuch as the decree under execution in this case was appealable, and was, therefore, not a final decree, the se...
Tag this Judgment!Gulba Vs. Basanta and ors.
Court: Allahabad
Decided on: Jan-28-1910
Reported in: 5Ind.Cas.547
1. The facts which gave rise to the suit in this case are these. Kishan Lal defendant mortgaged a chaupal to Grulba appellant. A decree was obtained upon the mortgage on the 20th of August 1907. Thereupon the plaintiffs, who are two of the members of the Lodh caste, brought the suit which has given rise to this appeal for a declaration that the chaupal with its appurtenant shops is owned and possessed by the plaintiffs the first defendant, Kishan Lal and other members of the brotherhood and that it is not liable to sale in execution of the decree obtained by the appellant against Kishan Lal. The plaintiffs state that the chaupal belongs to them and other members of the Lodh community, that the first defendant Kishan Lal who is the Mokaddam (i.e. headman) amongst the Lodhs had no power to mortgage it, that the decree passed upon the mortgage is calculated to deprive the plaintiffs of their rights and is prejudicial to them, that the plaintiffs are owners and sharers in the chaupal and t...
Tag this Judgment!Babu Nandan Pat Tewari Vs. Radha Keshun Kalwar and ors.
Court: Allahabad
Decided on: Jan-28-1910
Reported in: 5Ind.Cas.664
1. This appeal must prevail. So far as regards the question before the Court the suit was one for possession of land and for the demolition of a thatched cottage situate on that land. It appears from the evidence that the plaintiff and the defendants were co-sharers of the property in dispute and other property prior to the year 1891. On the 19th of February 1891, the plaintiff executed a usufructuary mortgage in favour of the defendants of the property in dispute and other property. That mortgage was redeemed on the 14th of September 1905. Subsequently to this, namely about three years ago, a partition of the joint property of the plaintiff and the defendants was carried out and in that partition' the site of the house in question was allotted to the plaintiff. The defendants retained possession of the house and consequently the suit out of which this appeal has arisen was instituted for possession of the site, demolition of the thatched house and other relief to which it is not neces...
Tag this Judgment!Dip Chand Vs. Radha and ors.
Court: Allahabad
Decided on: Jan-27-1910
Reported in: 5Ind.Cas.373
1. The facts out of which this appeal arises appear in the order of remand dated the 9th July 1909. In that order three mortgages were referred to and certain issues were referred to the Court below. The first issue was 'Had the defendants Nos. 5 and 6 notice of the bonds mentioned in the plaint'. The order of remand refers specially to the three bonds dated July, August and September 1905. There was a fourth agreement or bond dated January 1906. This bond was not gone into with any great particularity when the appeal was previously before the Court. As, however, we think that the issue was sufficiently wide to cover this last mentioned bond also, it will be necessary to deal with it later on. The first three bonds are all in practically the same language. They purport to hypothecate specific growing crops. It is true that the bonds also contain general words to the effect that all the persons and property of the mortgagors shall be liable for the re-payment of the advances. In our opi...
Tag this Judgment!Dori and ors. Vs. Jiwan Ram
Court: Allahabad
Decided on: Jan-27-1910
Reported in: 6Ind.Cas.17
John Stanley, C.J.1. In this appeal is involved one of the vexed questions in regard to the right of pre-emption which frequently come before the Court. In the suit out of which it has arisen, the plaintiff-appellants claimed a right to pre-empt a sale to Jiwan Ram of a 5 biswas share in a certain village relying upon the provisions of the wajib-ul-arz of 1272 Fasli, which gave a right of pre-emption, first to a near sharer (hissadar karibi) and secondly to another sharer in the village (dusre hissadar deh). The purchaser is a stranger to the village. The village was recently partitioned but no new wajib-ul-arz was framed on the occasion of the partition. The plaintiff is a co-sharer in one of the mahals into which the village is now divided but has no share in the mahal in which the property purchased by Jiwan Ram is situate. Outsidethe wojib-ul-arz neither side produced any evidence. The wajib-al-arz is prima facie evidence of the existence of the custom which it records and the only...
Tag this Judgment!Bhagwan Das Vs. Hari Ram and anr.
Court: Allahabad
Decided on: Jan-26-1910
Reported in: 5Ind.Cas.350
Piggott, J.1. This is a defendant's appeal in a case in which the plaintiff, claiming to be the transferee of the proprietor of a certain house, sued for the defendant's ejectment. The main question raised is whether the Courts below were right in deciding that the suit was not barred by limitation under the provisions of Article 139 of the Second Schedule to the Indian Limitation Act (X of 1877). The facts found by the lower appellate Court are that the predecessor-in-title of the plaintiff leased the house on July 14th, 1886, for a term of five years to the father of the defendant-appellant. No rent was ever paid after the expiration of this term of five years, and the present suit was brought on September 8th, 1908. The learned District Judge holds that, in the absence of evidence that the defendant-appellant or his father ever denied their lessor's title, it cannot be said that their possession ever became adverse, or that limitation ever began to run against the lessor. So far as ...
Tag this Judgment!Ramjas Ahir and ors. Vs. Babu Aman Sahai and ors.
Court: Allahabad
Decided on: Jan-26-1910
Reported in: 5Ind.Cas.667
Piggot, J.1. This was a suit for preemption based upon village custom. It was resisted partly on the ground of limitation and partly by denial of the custom set up by the plaintiffs, while there was also an issue as to the amount of consideration. The Court of first instance dismissed the suit upon a single finding, namely, that the plaintiffs had failed to prove the custom set up by them. The lower appellate Court first admitted in evidence a certain document (a copy of an extract from the wajib-ul-arz of 1833), which it held the plaintiffs ought to have been allowed to produce in the first Court, and then reversed the finding on the only issue hitherto tried, holding that the custom relied on by the plaintiffs was satisfactorily proved by the evidence on the record. The case was remanded under the provisions of Section 562 (Act XIV of 1882) and against this order no appeal was preferred. The learned Munsif on taking up the case again found for the plaintiffs on the issue of limitatio...
Tag this Judgment!Kuria Mal Vs. Bishambhar Das
Court: Allahabad
Decided on: Jan-20-1910
Reported in: 5Ind.Cas.276
1. This was a suit for partition of a certain house. On June 25th 1908 the Court of first instance, the learned Munsif of Ghaziabad, passed a preliminary-decree in favour of the plaintiff, declaring his right to possession by partition of a half share in the house in suit. On June 30th, 1908, the same Court passed a final decree, giving the plaintiff possession of a specified half share in the house according to a plan which, had in the meantime been prepared by a Commissioner, and adding certain orders as to costs which had been held over at the time the preliminary decree was passed. On July 28th 1908 one of the defendants appealed to the Court of the District Judge of Meerut against the preliminary decree of Juno 25th, 1908, without impeaching the final decree which had in the meantime been passed. The learned District Judge passed a decree which purports to be in modification of the decree of June 25th 1908 and directs that the plaintiff's claim in respect of one-fourth share in th...
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