Allahabad Court May 1912 Judgments
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Chandar Sekhar Tewari Vs. Balakdhar Dubey
Court: Allahabad
Decided on: May-22-1912
Reported in: 15Ind.Cas.611
Banerji, J.1. This appeal arises out of a suit for possession of a 3 pie, 1 1/2 suls zemindari share and for mesne profits. I must observe at the outset that the judgment of the lower Appellate Court, is most unsatisfactory and does not comply with the requirements of Order XLI, Rule 31 of the Code of Civil Procedure. It does not set forth the points at issue, nor does it give full reasons for the decision on these issues. All that it says is that a competent Court has already decided that the defendant's mortgage is not prior but subsequent, and as that decision has not been set aside, it operates as res judicata. The learned Judge does not refer to the judgment which he says has the effect of res judicata, and it is difficult to see which judgment he had in view. The facts of the case are somewhat complicated. It appears that under a registered bond dated the 21st of May 1879, a 5|-pie share was mortgaged to the ancestor of the defendant. A suit for sale was brought on the basis of t...
Parag Vs. Jagannath and ors.
Court: Allahabad
Decided on: May-22-1912
Reported in: 15Ind.Cas.173
1. The Courts below appear to. have misconceived the real nature of the claim. The plaintiff brought the suit for a declaration that he had a half share in a certain enclosure and he claimed possession of that share. His allegation was that he and the first defendant Jagannath jointly-purchased the enclosure from one Ram Prasad, who was the owner of it, for Rs. 150, that the sale-deed was obtained farzi in the name of the second defendant, Debi Prasad, and that Debi Prasad had executed a sale-deed in favour of the third defendant in collusion with the first defendant. Jagannath admitted that the house had been purchased jointly by him and the plaintiff. But he staled in his written statement that the whole amount of the consideration was paid by him and that, therefore, the plaintiff was not entitled to obtain possession of a half share of the enclosure. Both the Courts below seem to have thought that if non-payment of consideration by the plaintiff was proved, that would be sufficient...
Nand Kishore Singh Vs. Ram Birich Rai and anr.
Court: Allahabad
Decided on: May-22-1912
Reported in: 15Ind.Cas.704
1. This appeal arises out of a suit for pre-emption. The sale took place on the 22nd of July 1909. On the 21st of June previously, partition had been made and confirmed with effect from the 1st of July. Under the partition, the plaintiff and the vendor were co-sharers in one mahal. The defendant has ceased to be a co-sharer with the vendor altogether. His property is in a separate mohal On the 2nd of August 1909, the wajib-ul-arz was verified for the new mahal. There was also given in evidence the wajib-ul-arz of 1865. They are practically the same except that in 1865 the village evidently consisted of a single mahal. In the former wajib-ul-arz, there was a second class of co-sharers called ''near co-sharers.' After the partition, that class was designated as near co-sharers in the mahal'. Both the Courts below decided against the plaintiff on the ground that the new wajib-ul-arz was not in existence on the 22nd of July-1909, the date of the sale. They thought that under the old wajib-...
Gupteshwar Ram and ors. Vs. Rati Krishna Ram and anr.
Court: Allahabad
Decided on: May-21-1912
Reported in: (1912)ILR34All542
Henry Richards, C.J. and Tudball, J.1. This appeal arises out of a suit for pre-emption. The plaintiffs alleged that a custom of pre-emption prevailed and that one of the vendees, although he had an equal right with the plaintiffs, had lost his right by joining with him in the sale a person who, though a co-sharer, had an inferior right to the plaintiffs. The defendants alleged that there was no custom of pre-emption and that the joining of a person who was a co-sharer, although his right was inferior, did not entitle the plaintiffs to pre-emption even on the assumption that a custom of pre-emption prevailed in the mahal. Neither side gave oral evidence, but there was adduced in evidence the wajib-ul-arz of 1833, the wajib-ul-arz of 1860, and certain decrees, in some of which it was held that a custom existed and in others that it did not exist. The learned Munsif considered the evidence carefully and came to the conclusion that the custom existed. He also held that the joining in the ...
Ram Jar Singh Vs. Bhagalu Singh and ors.
Court: Allahabad
Decided on: May-21-1912
Reported in: 17Ind.Cas.669
Chamier, J.1. In my opinion, the decision of the Munsif is this case was correct and should not have been disturbed. The suit is based upon a mortgage deed, executed by Mahadeo Singh, father of the defendants-respondents, in favour of the plaintiff-appellant. The consideration for the mortgage is stated in the deed to be a sum of Rs. 115 due on a previous mortgage executed by Mahadeo Singh and his cousins, Bahadur Singh and Sahadeo Singh. According to the decision in Chandra Deosing v. Mata Prasad 31 A. 176 : 6 A.L.J. 263 : 1 Ind. Cas. 479 the appellant had to prove that the mortgage in suit was made either for family necessity or to secure payment of an antecedent debt. The appellant produced Bahadur Singh (already mentioned) who said that the deed of August the 9th, 1892, was executed on the occasion of a partition between two branches of the family and that the deed in suit was executed on the occasion of a later partition between the members of one of those branches of the family. ...
Bechu Singh and ors. Vs. Lachmi NaraIn Singh and ors.
Court: Allahabad
Decided on: May-21-1912
Reported in: 15Ind.Cas.54
1. This appeal arises out of a suit for pre-emption. The plaintiffs alleged that they were co-sharers not only in the same thok but in the same patti as the vendor, while the vendees were co-sharers in the same thok but not in the same patti with the vendor. The only evidence the plaintiffs appear to have adduced in support of the alleged custom was the wajib-ul-arz of 1842, and certain judgments bearing on the interpretation of the clause in this wajib-ul-arz.2. The Court of first instance seems to have presumed for the purposes of the case in the plaintiffs' favour that a custom of pre-emption existed. It then went on to consider whether or not on the terms of the wajib-ul-arz the plaintiffs had a preferential right over the defendants. It held that the plaintiffs had no such right and dismissed the suit.3. On appeal to the District Judge, the latter approached the consideration of the case entirely on a consideration of the actual terms of the wajib-ularz and held that under the ter...
Gupteshwar Ram and ors. Vs. Rate Krishna Ram and ors.
Court: Allahabad
Decided on: May-21-1912
Reported in: 15Ind.Cas.174
1. This appeal arises out of a suit for pre-emption. The plaintiffs alleged that a custom of preemption prevailed and that one of the vendees, although he had an equal right with the plaintiffs, had lost his right by joining with him in the sale a person, who though a co-sharer had an inferior right to the plaintiffs. The defendants alleged that there was no custom of pre-emption and that the joining of a person, who was a co-sharer, although his right was inferior, did not entitle the plaintiff to pre-emption even on the assumption that a custom of pre-emption prevailed in the mahal. Neither side gave oral evidence but there was adduced in evidence the wajib-ul-arz of 1833, the wajib-ul-arz of 1860 and certain decrees in some of which it was held that a custom existed and in others that it did not exist. The learned Munsif considered the evidence carefully and came to the conclusion that the custom existed. He also held that the joining in the purchase of a person who had inferior rig...
Asghar HusaIn Vs. Pal Ahir and ors.
Court: Allahabad
Decided on: May-17-1912
Reported in: (1912)ILR34All538
Tudball and Chamier, JJ.1. The facts of the case out of which this appeal has arisen are as follows. The predecessors in title of the defendants respondents were occupancy tenants of a certain holding. On the 4th of June, 1885, they mortgaged this holding describing it as a fixed-rate tenure in favour of the zamindar of the village. A suit was brought to enforce the mortgage in December, 1895, and on the 27th of July, 1896, a decree for sale was passed. On the 23rd of August, 1897, the property was sold as a fixed-rate tenure and was purchased by the plaintiff, a stranger to that suit. The judgment-debtors objected to the zamindar being allowed to bid at the sale. On the 2nd of November, 1897, a sale-certificate was granted to the plaintiff. From that date up to the 16th of October, 1908, the plaintiff had been in possession of the holding, paying rent to the zamindar.2. On the latter date he was dispossessed by the defendants, who asserted that the land was their occupancy tenure. Hen...
Durga Dutt Vs. Emperor
Court: Allahabad
Decided on: May-17-1912
Reported in: 15Ind.Cas.75
George Knox, J.1. This is an application for the revision of an order passed by the Joint magistrate of Cawnpore, on April 1st, 1912.2. The Magistrate was asked to cancel a charge-sheet, which he had drawn up against the petitioner. He was also asked to take the evidence of witnesses which the accused wished to produce before him. He declined to cancel the charge and ho also declined to take the evidence. Ordinarily, this Court is most unwilling to interfere with interlocutory orders; in the present case, however, it is abundantly clear that the Court below has not adopted the procedure prescribed by law. It has followed a procedure of its own and it seems better that in an important and elaborate case like the present, the Court should be put back so far as possible upon the proper procedure, viz., that prescribed by law. My experience is that when Courts follow arbitrary procedure of their own invention, difficulties and confusions are sure to arise. In the present case, the accused,...
Rabi Rai Vs. Dharamraj Rai
Court: Allahabad
Decided on: May-17-1912
Reported in: 15Ind.Cas.35
Piggott, J.1. This was a suit to enforce a contract embodied in a deed dated October 26th, 1902. The defendant, who is the applicant now before this Court, acknowledged previous receipt of a certain sum and covenanted to re-pay the same with interest at a certain rate in four instalments, the last of which fell due on the '6th of June 1906. He also purported to hypothecate what is described as his tenant's holding in a certain village, and covenanted that, in the event of his failure to fulfil the stipulations as to re-payment, the plaintiff-mortgagee might either sue to recover his money or take possession of the holding in question. In the plaint, the land hypothecated is simply described as a tenant's holding (arazi-kashtkari) and in his prayer for relief the plaintiff says that since he finds that it is not possible for him to recover his money from the property mortgaged, he desires to sue upon the deed in question as a simple money bond. In reply, the main defence on the merits w...
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