Allahabad Court November 1924 Judgments
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Raghubir Saran Das Vs. Ram Das
Court: Allahabad
Decided on: Nov-12-1924
Reported in: AIR1925All348; 85Ind.Cas.608
Mukerji, J.1. This second appeal raises some interesting points of law. It appears that the suit related to a. certain wall and a piece of land immediately to the south of it. The plaintiff who is the appellant before this Court claimed that the wall and the land were his private property. He complained that, the respondent, the defendant, interfered with his right of possession in certain ways. At this stage of the case it is not necessary to enter into the details. The Court of first instance partially decreed the suit and ordered the supposed interferences with the right of the plaintiff to be removed. The lower appellate Court came almost to a directly opposite conclusion and ordered the suit to be dismissed in toto. The first point that has been taken in this Court is that no appeal lay to the Court below. This plea arises out of the following circumstances. At the trial of the suit, the counsel for the parties stated that they were not prepared to adduce any oral evidence. They s...
Gokul Prasad and anr. Vs. Debi Prasad
Court: Allahabad
Decided on: Nov-11-1924
Reported in: AIR1925All311
Mukerji, J.1. This is a reference by the learned Additional Sessions Judge of Cawnpore, sitting at Fatehpur, recommending that a certain order dated the 10th of August, 1924 by which a Magistrate framed a charge under Section 437 of the Indian Penal Code against Gokul Prasad and another may be set aside.2. As already indicated, the case is still pending in the Court of the Magistrate and a preliminary objection has been taken as to the jurisdiction of this Court to interfere at this stage. The learned Sessions Judge anticipated the objection and has referred to two authorities, viz: In Re: S. Kuppuswami Aiyar (1915) 39 Mad. 561 and Hari Charan Gorait v. Girish Chandra Sadhukhan (1910) 38 Cal. 68, as establishing the proposition that the High Court may interfere where its interference is necessary at any stage of the proceedings before a Magistrate, I have examined these authorities and I have also examined the Criminal Procedure Code itself. Mr. Boys has also referred me to a case deci...
Mukha Vs. Mitter Sen
Court: Allahabad
Decided on: Nov-10-1924
Reported in: AIR1925All336
1. This appeal arises out of a suit for pre-emption, and the main question for consideration is whether a custom of pre-emption exists in the mahal in which the -property in dispute is situated. The Courts below were of opinion that no such custom was established. We have examined the wajib-ul-arz produced in the case and are not satisfied that the plaintiff has established by clear evidence that an invariable custom existed in the village of the kind set up. The wajib-ul-arz of 1863 docs not purport specifically to record a custom of pre-emption. All that it says is that in the case of a sale or mortgage by a co-sharer the pre-emptive right shall belong first to an own brother, then to the uncle and near brothers, and in case of their refusal, to the other co-sharers in the patti and village. The wajib-ul-arz of 1997 F purports to record a custom of preemption, but gives the right of pre-emption first to near relations (rishtedar nazdiki) then to the co-sharers in the patti and khewat...
NaraIn Singh Vs. Gajraj
Court: Allahabad
Decided on: Nov-10-1924
Reported in: AIR1925All345
1. After hearing the learned Counsel we think that this appeal should prevail. The question is one of interpretation of a wajib-ul-arz. It is not denied that a custom of pre-emption exists. The question is whether under the record of that custom the plaintiff had a better right to acquire the property than the defendant-vendee. The Court of first instance held in favour of the plaintiff and gave him a decree for pre-emption. The lower appellate Court has differed from the view taken by the Court of first instance and holding that the plaintiff had no preferential right, it dismissed his claim. It seems to us on a perusal of the wajib-ul-arz before us that the interpretation of the lower appellate Court cannot be supported. According to what we find in the wajib-ul-arz the provisions relating to pre-emption are contained in the second chapter which deals with the rights of co-sharers inter se (ba khudha). We come then to Clause 13 which deals with the custom of preemption and there it i...
Maqsud Ali and ors. Vs. Abdullah and ors.
Court: Allahabad
Decided on: Nov-10-1924
Reported in: AIR1925All342; 92Ind.Cas.468
1. In this case we are concerned with the interpretation of two wajib-ul-arzes. The question to be decided is whether the plaintiff, who was Nasir Ullah Khan now represented by the present appellants, Maqsud Ali and others, was entitled to a preference in the matter of exercising a right of pre-emption. The vendor of the property in dispute was own brother of Nasir Ullah, and the purchaser Kabul Khan who is now represented by two defendants, Ahsan Ali and Abdullah, was a co-sharer in the village and also a relation, but a distant relation, of the vendor.2. The Court of first instance gave the plaintiff a decree for pre-emption on a finding that on the language of the record of custom as contained in the two wajib-ul-arzes the plaintiff as own brother of the vendor had better right than the vendee who was a co-sharer only and in any case a more distant relation. The lower appellate Court has reversed the finding of the Court of first instance on this point, being of opinion that the pla...
Hazari Lal Vs. Abbas Mirza
Court: Allahabad
Decided on: Nov-06-1924
Reported in: AIR1925All360; 86Ind.Cas.595
1. In our opinion this appeal must be allowed. The decision of the Court below is erroneous. The suit was a suit for pre-emption. The plaintiff in the case was a relation of the vendor but was not a co-sharer in the village. On the other hand, the purchaser was a co-sharer in the village but not related to the vendor. Both the Courts below have field that in spite of the fact that the plaintiff was not a co-sharer, he was entitled to a decree for pre-emption. This decision was arrived at on the language of the wajib-ul-arz 'to which we must now refer. The language of that document appears to us to be quite clear. It provides for a right of pre-emption in three classes of persons, namely. (1) Bhai haqiqi (2) Bhai qaribi (3) Digar hisseddran-i-deh.2. The point which was raised in both the Courts below was that the word 'Digar' in this context indicated clearly that it was necessary that the members of the first and second classes should also be co-sharers in the village. In other words, ...
Budh Sagar and anr. Vs. Bishun Sahai
Court: Allahabad
Decided on: Nov-06-1924
Reported in: AIR1925All366
Kanhaiya Lal, J.1. His Lordship after stating the facts of the case as set out above and discussing the evidence, proceeded as follows:The onus lay on the defendants appellants to give strict proof that the plaintiff suffered from a congenital disability which excluded him from inheritance and that onus has not been discharged.2. There is another matter which is still more conclusive on the point of the plaintiff's title. In 1919 when the plaintiff sued for a partition of his share, the defence raised by Raghubar Dayal on behalf of himself and Budh Sagar, according to the learned Subordinate Judge, was that the plaintiff had been born congenitally blind. Raghubar Dayal did not, however, proceed with the trial of that issue. He preferred to enter into an agreement with the plaintiff by which he recognized his right as a co-parcener in consideration of the then plaintiff withdrawing his claim for partition and acknowledging him as the then head of the family, and further agreed that if i...
Haji Ali Vs. Emperor Through Ali Asghar
Court: Allahabad
Decided on: Nov-05-1924
Reported in: AIR1925All678; 85Ind.Cas.656
Mukerji, J.1. It is a Reference by the learned Sessions Judge of Benares recommending that certain orders passed by two successive Magistrates may be set aside.2. It appears that the parties to this Reference, viz., Haji Ali, the applicant and Ali Asghar, the opposite party, are close neighbours. Ali Asghar went before the Joint Magistrate of Benares with the complaint that the rainwater of his house used to flow through the house of Haji Ali, that Haji Ali had closed the drainage and that this (Ali Asghar's house) was in danger. He wanted the Magistrate to take action under Section 144 of the Cr.P.C. and order Haji Ali to remove the obstruction. The learned Joint Magistrate called for a police report and on receipt of it passed an ex parte order on the 29th of August, 1924, ordering Haji Ali to open the drain. Haji Ali took exception to this order and appeared before another Magistrate, the learned Joint Magistrate being absent from the station. At Haji Ali's request Mr. J.N. Singh, a...
Banarsi Das Vs. Municipal Board of Amroha and ors.
Court: Allahabad
Decided on: Nov-04-1924
Reported in: AIR1925All234; 85Ind.Cas.761
Mukerji, J.1. This is the plaintiff's appeal. His house abuts on a blind lane. He constructed a cornice projecting from the front wall of his house and over this lane. The Municipal Board gave a notice to the plaintiffs to remove the cornice. The plaintiff disputed their right to issue such notice and instituted the suit, out of which this appeal has arisen.2. The Court of first instance decreed the suit, but a learned Subordinate Judge on appeal dismissed it. He held that maintenance of the suit was barred having regard to the provisions of Section 321 of the Municipalities Act, 1916. He also held that the Municipal Board were within their right in issuing the notice and that the lane in question was a public street within the meaning of Section 2, Clause 19 of the Municipalities Act.3. In this Court it has been contended that the suit is not barred and that the finding of the Court below that the lane was a public street was not justified. There can be no doubt that the jurisdiction ...
Murari Lal and anr. Vs. E.V. David and anr.
Court: Allahabad
Decided on: Nov-03-1924
Reported in: AIR1925All241a; 84Ind.Cas.739
1. The question for consideration in this appeal is whether the suit brought by the plaintiffs-appellants for a declaration of their title to a two-thirds share of the house in dispute was maintainable against the receiver without any notice under Section 80 of the Code of Civil Procedure.2. The plaintiffs are the brothers of one Behari Lal, who was adjudicated an insolvent. The defendant was appointed an Official Receiver under Section 57 of the Provincial Insolvency Act, V of 1920, and in that capacity he took charge of the estate of the insolvent, including the house in dispute whereof a two-third share is now claimed by the plaintiffs.3. On the date fixed for the first hearing the receiver appeared and filed his defence; but no plea was raised by him regarding the omission of the plaintiffs to send him a notice of the kind above referred to, but on the date fixed for final hearing, he filed an application urging that the suit was not maintainable without such notice; and he asked t...