Court : Allahabad
Reported in : 15Ind.Cas.625
Piggott, J.1. We are dealing in this case with the affairs of a family of Panwar Thakurs who, according to a tradition embodied in the Settlement Records, trace back their descent to one Rao Sheopal Singh, who cams into the Farrukhabad district from the Deccan something over six hundred years ago. His family acquired considerable landed property in Farrukhabad and across the Oudh border in Hardoi. It broke up into several branches, but the evidence shows that the village of Wazirpur in the Farrukhabad district was looked upon, as the head quarters of the family. The branch with which we are immediately concerned had its head-quarters at Allahganj in the same district, and the group of villages owned by them was kaown as 'taluqa Allahganj'. There are other indications in the evidence besides the use of this name that the status of the family at one time approximated more or less to that of an Oudh taluqadari estate. At the time of the Mutiny, the owners of 'taluqa Allahganj' were three ...
Tag this Judgment!Court : Allahabad
Reported in : 16Ind.Cas.982
1. This appeal arises out of a suit hi which the plaintiff sought to realise Rs. 3,000 principal, together With a large amount of interest, by the sale of a 7-anna 6-pie zemindari share in certain property. The document upon which the plaintiff relies is dated the 3rd of February 1894. It will be found at page 7 of the appellant's book. It first recites that the mortgagor has borrowed Rs. 3,000, bearing interest at the rate of 12-annas percent, per mensem. It then goes on to state that in lieu of this money, he has mortgaged 14 bighas, 17 biswas and 15 dhurs of land and placed the mortgagee in possession of it. This 14 bighas, 17 biswas and 15 dhurs comprised an occupancy-holding. The plaintiff, in the present suit, does not seek to enforce the mortgage against this property. The mortgage, then, proceeds as follows: 'He shall enjoy the profits of the mortgaged lands in lieu of interest. I, the executant, shall continue to pay to the mortgagee every year the deficiency in the amount of ...
Tag this Judgment!Court : Allahabad
Reported in : 15Ind.Cas.495
George Knox, J.1. The proceedings, out of which this application has arisen, were proceedings instituted by one Daryao. He came to the Magistrate alleging that he was in possession of certain landed property, that a dispute likely to cause breach of the peace existed regarding it and that this dispute he further alleged come from the side of one Shohrat Singh. He asked the Magistrate to take action under Section 145 of the Code of Criminal Procedure. Thus, he put before the Magistrate a case which came clearly within the provision of Section 145 of the Code provided always that he established the fact that he was in possession and that a dispute likely to cause a breach of the peace existed.2. The Magistrate then, after considerable delay and various intermediate orders issued, made an order in writing stating that he was satisfied on the ground that a breach of peace did exist about land within the local limits of his jurisdiction and he required Shohrat Singh and Daryao to put in wri...
Tag this Judgment!Court : Allahabad
Reported in : 15Ind.Cas.687
Chamier, J.1. This was a suit by the appellant for recovery of his share in the property of one Masitullah Khan who died in January 1902. One of the defendants to the suit was the respondent Saidunnisa. Her defence was that the property had been transferred to her by Masitullah in lieu of her dower-debt. The Munsif held that the ' alleged transfer of the property amounted to a sale and inasmuch as the value of the property exceeds Rs. 100. the transfer could not be effected except by a registered instrument. Accordingly, he decreed the claim. The present respondent appealed to the lower Appellate Court challenging the decision of the Munsif with regard to the validity of the transfer and pleading also that the appellant was not entitled to possession of his share in the estate of Masitullah until the dower- debt due to the respondent was paid. The Subordinate Judge held that the transfer was valid and that even if it was invalid, the respondent was in possession of the property and was...
Tag this Judgment!Court : Allahabad
Reported in : 15Ind.Cas.880
1. The plaintiff's, father on the 19th of July 1899, executed a mortgage with possession in favour of Jagrup. One of the terms of the mortgage was that the mortgagor would not be entitled to redeem for 58 years. The mortgagor's son brought an action on the 9th of August 1910 for redemption of the mortgage. In paragraph 5 of his plaint, he stated as follows: 'The defendant has cunningly, fraudulently and. dishonestly got the period of mortgage enter-ed as 58 years in the deed of mortgage sought to be redeemed, which is most prejudicial and improper and is legally and equitably null and void'. The fraud which the plaintiff attempted to prove was that a long term was entered in the mortgage-deed without the knowledge and consent of the mortgagor. The Court of first instance dismissed the plaintiff's suit on the ground that there was non-joinder of parties and that the fraud alleged by the plaintiff was not proved. The lower Appellate Court affirmed the dismissal. In second appeal, it is u...
Tag this Judgment!Court : Allahabad
Reported in : 17Ind.Cas.22
Chamier, J.1. The finding on the first and second issues remitted by my order of April 11th is in the affirmative, and the finding on the third issue is in the negative.2. The meaning of the findings on the first and third issues is that the defendants enjoyed the old western right of way over plot No. 1640 as an easement and as of right for more than twenty years up to within 16 or 17 years of this suit and then abandoned it, or at all events the southern part of it in order to go direct to a new door opened by them.3. It seems to me that the result of these findings is that the defence fails. The fifth paragraph of Section 15 of the Easements Act seems to render it impossible to acquire a statutory prescriptive title to an easement unless and until the claim thereto has been contested in a suit. The same has been held with reference to Sections 3 and 4 of the Prescription Act, 1832 [see the judgment of Lord Macnaghten in Colls v. Home and Colonial Stores (1904) A.C. 179 at p. 189 : 7...
Tag this Judgment!Court : Allahabad
Reported in : 16Ind.Cas.679
1. This appeal arises under the following circumstances. One Fakhr-ud-din went to Arabia on a pilgrimage about the year 1885. It is alleged, and possibly with truth, that he made an oral sale of all his property to Hamid Husain, who paid Rs. 10,000, part of the purchase money, promising to pay the balance at a later time. Hamid Hisain got into possession of the property after the death of Fakhr ud-din, which took place on the 25th of January 1899. The oral sale is alleged to have taken place in 1893. The plaintiff's sister was the wife of Fakbr-ud-din and, as heir of his sister, he obtained a decree against Fakhr-ud-din for dower. In execution of this decree, the plaintiff sought to attach and sell the property of Fakhr-ud-din, which he had, as alleged, orally sold to the defendant. The defendant objected to the attachment and sale of the property on the basis of his alleged oral purchase. The Court allowed the objection on the ground that he was in possession, and hence the present su...
Tag this Judgment!Court : Allahabad
Reported in : 15Ind.Cas.592
Piggott, J.1. This was a' suit for redemption of a mortgage on a certain fixed-rate tenancy, the mortgagees having obtained possession under the terms of the mortgage. There is no question now before me as to the plaintiff's right to redeem or the amount to be paid for redemption,.2. The only question is whether the plaintiff entitled to damages claimed by him on the ground that he was wrongfully kept out of possession by the mortgagees during the year 1318 Fasli, after he had made a valid tender of the entire amount due. The Court of first instance gave the plaintiff a decree for Rs. 14-12 as damages, calculating the same to be the gross rental of the land in suit for that year. The learned District Judge, on an appeal by the defendant, has dismissed the claim for profits, remarking that, under the circumstances of the case, it did not appear to him that there was anything in law to compel the defendants to pay damages. Coming to this Court in second appeal, the plaintiff contends tha...
Tag this Judgment!Court : Allahabad
Reported in : 16Ind.Cas.674
1. This was a suit by the representatives-in-interest of a subsequent mortgagee for sale upon his mortgage, dated the 20th of August 1895. The plaintiffs did not make the prior mortgagee, Mohi-ud-din Haider, a defendant to the suit, nor did they make Lachhmi Narain and others, sons of Gopal, mortgagees subsequent to themselves, defendants to the suit. The Court of first instance gave a decree for 'sale of the property which was not covered by the prior or subsequent mortgage. In appeal to the lower Appellate Court two points were pressed, (1) that the plaintiffs were entitled to a decree for sale of the property covered by the prior mortgage; (2) that they were entitled to a decree for sale without impleading the subsequent mortgagee. In second appeal, it is contended (1) that the mere fact that the prior mortgage is merged into a decree cannot prevent a subsequent mortgagee from enforcing his security, and (2) that a puisne mortgagee is not disentitled to a decree for sale if he has f...
Tag this Judgment!Court : Allahabad
Reported in : 16Ind.Cas.633
Chamier, J.1. The facts found are that Manga, who was owner of a house in a village, died leaving a widow who held possession for some years. On the death of the widow, the plaintiffs became entitled to the house as zemindars of the village, Manga having left no heirs besides his widow. The defendant-appellant took a sale-deed of the house, including the site, from two persons who admittedly had no title. Having got into possession, he pulled down the old house and built a new one in its place. The Courts below have given the plaintiffs a decree for possession of the land and house. The only question for decision in this appeal is whether the defendant-appellant should be allowed to remove the materials of the house.2. Neither in his written statement nor in his grounds of appeal to the lower Appellate Court did the defendant-appellant claim to be entitled to remove the materials of the house, but the point seems to have been taken at the hearing in the lower Appellate Court.3. The cas...
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