Allahabad Court July 1923 Judgments
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Sarju Mahto and anr. Vs. Sheo Prasad Dube and ors.
Court: Allahabad
Decided on: Jul-06-1923
Reported in: (1924)ILR46All35
Lindsay and Sulaiman, JJ.1. The question in this case is whether the lower appellate court was right in holding that the plaintiffs respondents were entitled to succeed in their suit for pre-emption.2. The suit as framed was based on an alleged custom of preemption. The court of first instance dismissed the suit on the ground that the custom was not proved. The Subordinate Judge was also of opinion that the plaintiffs could not rely on any contract for pre-emption inasmuch as no such case had been set up in the plaint.3. The plaintiffs went in appeal and the learned Additional Judge, while agreeing with the first court that there was no proof of custom, nevertheless held that the plaintiffs were entitled to succeed on the ground of contract.4. It is now argued before us on behalf of the defendants vendees that the Judge of the court below ought not to have decreed the claim on the basis of contract, no such case having been set up in the plaint.5. On the other hand the learned Counsel ...
Bindeshri Saran Singh Vs. Muhammad Shafi
Court: Allahabad
Decided on: Jul-06-1923
Reported in: (1924)ILR46All52
Pramada Charan Banerji, Acting C.J. and Piggott, J.1. In our opinion there in no force in this appeal. The plaintiff in his plaint claimed the ownership of the land on which the defendant had planted certain trees, and he asked for the removal of the trees and for possession of the land. He also asks for further reliefs. It has been found that the land belongs to the plaintiff, that it is waste land, and that the defendant had planted trees on the plaintiff's land without having any right to do so. It was further found that the trees were planted within twelve years prior to the institution of the suit. The claim being one for possession, it was clearly within time, the period of limitation applicable being twelve years. Reliance was placed on behalf of the appellant on the ruling of this Court in Musharaf Ali v. Iftkhar Husain (1888) I.L.R. 10 All. 634. In that case the real question was whether the limitation applicable was that prescribed by Article 32. It does not appear that the c...
Sheo Prasad Dube and ors. Vs. Sarju Mahto and anr.
Court: Allahabad
Decided on: Jul-06-1923
Reported in: 78Ind.Cas.519
1. The question in this case is whether the lower Appellate Court was right in holding that the plaintiffs-respondents were entitled to succeed in their suit for pre-emption.2. The suit as framed was based on an alleged custom of pre-emption. The Court of first instance dismissed the suit on the ground that the custom was not proved. The Subordinate Judge was also of opinion that the plaintiffs could not rely on any contract for pre-emption inasmuch as no such case bad been set up in the plaint.3. The plaintiffs went in appeal and the learned Additional Judge, while agreeing with the first Court that there was no proof of custom, nevertheless, held that the plaintiffs were entitled to succeed on the ground of contract.4. It is now argued before us on behalf, of the defendants vendees that the Judge of the Court below ought not to have decreed the claim on the basis of contract no such case having been set up in the plaint.5. On the other hand, the learned Counsel who has argued the cas...
Muhammad Shafi Vs. Babu Bindeshri Saran Singh
Court: Allahabad
Decided on: Jul-06-1923
Reported in: AIR1924All443; 75Ind.Cas.266
1. In our opinion there is no force in this appeal. The plaintiff in his plaint claimed the ownership of the land on which the defendant had planted certain trees and he asked for the removal of the trees and for possession of the land. He also asks for further reliefs. It has been found that the land belongs to the plaintiff; that it is waste land; and that the defendant had planted trees or the plaintiff's land without having any right to do so. It was further found that the trees were planted within twelve years prior to the institution of the suit. The claim being one for possession it was clearly within time, the period of limitation applicable being twelve years. Reliance was placed on behalf of the appellant on the ruling of this Court in Musharaf Ali v. I ftkhar Husain 10 A. 634 : A.W.N. (1888) 257 : 6 Ind. Dec : (N.S.) 427. In that case the real question was whether the limitation applicable was that presented by Alt. 32. It does not appear that the claim in that case was one ...
Jadubir Vs. Gajadhar and ors.
Court: Allahabad
Decided on: Jul-06-1923
Reported in: AIR1924All169; 75Ind.Cas.785
Kanhaiya Lal, J.1. The dispute in this case relates to a portion of plot No. 44 khasra situated in the village Pipri. That portion belonged to a joint family consisting of Salik Pande and his sons Ram Jag and Gajadhar. Salik Pande was the manager of the joint family. On the 2nd of July 1890 he and his son Ram Jag made a simple mortgage of the Said property in favour of Jagannath. Subsequently, on the 31st of Janaury 1900, he and his co-sharers mortgaged their entire plot No. 44 khasra with Mangru and gave him possession. In 1903, Jagannath filed a suit for the recovery of the money due on his mortgage and obtained a decree in execution of which he purchased the mortgaged property. The other son and grandsons of Salik Pande were not made parties to that suit. Jagannath sold the share purchased by him to Jadubir Pande who got mutation of names effected in his favour in the revenue papers in respect of the same.2. The present suit was filed by one of the sons and some of the grandsons of ...
Bhairo Tewari Vs. Ramnath Rai
Court: Allahabad
Decided on: Jul-05-1923
Reported in: AIR1924All60; 75Ind.Cas.404
1. This is a defendant's appeal arising out of a suit to pre-empt two transactions, dated the 18th June 1919 and the 16th September 1919, in the form of perpetual leases. It was conceded on behalf of the plaintiff that there was no custom of pre-emption with respect to leases but his case was that these transactions were In effect sale-deeds in the garb of leases and were, therefore, liable to pre-emption.2. On behalf of the defendant it was denied that these transactions were sale transactions. It may now be taken as undisputed that if these transactions were sale transactions, then the defendants admit that they were liable to pre-emption.3. Both the Courts below, however, came to the conclusion that these two transactions were sale transactions and not leases. They accordingly decreed the suit.4. The defendant Bhairo Tewari has come up in the appeal to this Court and on his behalf the finding referred to above is challenged.5. Both these documents are similar in their nature and it ...
Jhandu Singh Vs. Emperor
Court: Allahabad
Decided on: Jul-05-1923
Reported in: 75Ind.Cas.733
Daniels, J.1. This is and application by Jhandu Singh who has been bound oyer under Section 110 of the Code of Criminal Procedure and sentenced to rigorous imprisonment on the failure to give security. An appeal was filed to the District Magistrate who in a very brief judgment dismissed the appeal. The learned District Magistrate says that he has read the evidence that the Magistrate has written a fair and convincing judgment and that he fails to see how the Trying Magistrate could have come to any other conclusion with regard to the guilt of the appellant. I regret to say that the judgment: of the Trying Magistrate produces an entirely opposite impression on me from that which it has produced on the learned District Magistrate. The applicant was admittedly at enmity with the Mukhia Nawab Singh and. was a witness for the prosecution in a case in which the Mukhia was accused of murder. The applicant was. tried with eight other persons as forming one gang. The Magistrate expressly finds ...
Tika Ram Vs. Teja
Court: Allahabad
Decided on: Jul-04-1923
Reported in: (1924)ILR46All32
Walsh and Ryves, JJ.1. The facts, as now found, under which this appeal arises are as follows:2. Nanhe and Teja were brothers who together formed a joint Hindu family. They owned an ancestral house, On the 4th of February, 1908, Nanhe mortgaged the whole house to Tika Ram. Tika Ram sued on his mortgage and got a preliminary decree for sale in 1912. Before Tika Ram could get an order for sale under Order XXXIV, Rule 5, Teja, the other brother, brought a suit to avoid the mortgage on the ground that Nanhe, as a member of an undivided joint Hindu family, could not make a valid mortgage of the ancestral house without his consent and in the absence of legal necessity, and for a declaration that the house could not be sold under the mortgage decree. That suit was decreed on the 4th of January, 1913. Thereupon Tika Ram abandoned his rights under the mortgage, and asked the court, then seised of the execution proceedings, to pass a decree under Order XXXIV, Rule 6, and that was done. The effec...
Musammat Jan Bibi and ors. Vs. Musammat Batulan Bibi and anr.
Court: Allahabad
Decided on: Jul-04-1923
Reported in: AIR1924All729; 78Ind.Cas.214
Daniells, J.1. This was a suit by the plaintiffs-appellants, Musammat Jan Bibi and others, for possession of tbeir shares of a house by partition. The finding of the Court below is that defendant Batulan Bibi is in lawful and peaceful possession of the house in lieu of her unpaid dower and that the plaintiffs cannot obtain possession withoub satisfying her dower. The main plea on which the plaintiffs attaok this finding is based on an ambiguity in the judgment of the Court below. The learned Judge of the Court below finds in the earlier part of his judgment that Musammat Batulan Bibi is undoubtedly- in possession of the house. Further on he says:I have been shown no ruling which requires that the possession of the house on the part of the widow must be exclusive. All that appears to be necessary is to show that she is in actual possession and that there has been no division between her and any other person.2. This is not a clear finding, and the sentence in question may mean one of two...
Ram Sarap Vs. Lala Mohan Lal
Court: Allahabad
Decided on: Jul-04-1923
Reported in: 75Ind.Cas.816
Kanhaiya Lal, J.1. A mortgage-bond was executed by Sukhraui, the first defendant, in favour of the plaintiff on the 25th. of May 1917, whereby he hypothecated his future sugarcane crop for the years 1325 to 1327 Fasli The dispute in the present appeal relates to the sugarcane crop of 1327 Fasli, which has been appropriated by the defendant-appellant No. 5, under a sale effected in his favour by defendants Nos. 2, 3 and 4, who are stated to have purchased the same from defendant No. 1. The question for consideration in this appeal is, whether the mortgage can be enforced against the defendant-appellant. A mortgage of a future crop, neither sown nor cultivated at the time, is recognised and enforced in this country as an executory agreement, binding on the parties to the transaction. The transaction is not governed by the Transfer of Property Act or by the Indian Contract Act, in so far as it is neither a mortgage of immoveable property nor a pledge of existing moveable property. It is, ...
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