Allahabad Court March 1929 Judgments
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Nankoo Ahir Vs. Bhagelu Ahir and ors.
Court: Allahabad
Decided on: Mar-12-1929
Reported in: AIR1929All347
Dalal, J.1. There appears to be a lot of misapprehension as regards the provisions of Order 22. In the present case, the statement before the Court is that Chilar Ahir deceased respondent died and a request is made that the abatement as against him be set aside. At the same time it is submitted that the right to sue survives against the existing respondents. This is to misunderstand the provisions of Order 22. Abatement arises only under Rule 3 when one of two or more plaintiffs dies and the right to sue does not survive, or under Rule 4, when one of two or more defendants dies and the right to sue does not survive. There can be no abatement-under Rule 2 where there are more plaintiffs or defendants than one, and any one of them dies and where the right to sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone. In such a case no application by any party is necessary but it is made incumbent on the Court to cause an entry to th...
Cheri Vs. Ram Sewak and ors.
Court: Allahabad
Decided on: Mar-12-1929
Reported in: AIR1929All428
Ashworth, J.1. This second appeal arises out of a suit brought by the plaintiff-appellant for possession of certain land of which his possession has been disturbed by the defendant-respondents and for removal of an earthen boundary (khain) erected by the defendants. Both the lower Courts have dismissed the suit. The Munsif found that the plaintiff had not been in established possession of any but a very small portion of the land claimed, and that the defendants had been in possession of the rest. He found that the real owners were the zamindars, who were no parties to the suit. He found that the disputed khain was an old one and marked the boundary between the land as occupied by the parties. He consequently dismissed the suit. In the appeal the Subordinate Judge treated the case as a case based on title.2. In this second appeal the appellant's counsel has rightly pleaded that the Subordinate Judge misunderstood the case and that his judgment is in the circumstances worth nothing. No d...
Nand Kishore Rai Vs. B. Ganesh Prasad Rai and ors.
Court: Allahabad
Decided on: Mar-12-1929
Reported in: AIR1929All446; 118Ind.Cas.166
Dalal, J.1. I had to request Mr. Varma not to press his argument which was in conflict with an admission made in the lower appellate Court by his client's pleader. What is stated in the judgment of the lower appellate Court dated 27th July 1926 is this:The respondents' pleader has admitted that if the caves be found to project over the rasta land then there can be no question that the projecting portion is liable to removal.2. Mr. Varma argues that this was an admission of law. Whether an admission of law or an admission of fact, when the representative of a party makes a statement that party is bound thereby, and it would be doing great injustice to a Subordinate Court of law to reopen a matter there which has been decided by that Court on the admission of a pleader of a party. The amin's map is accepted as correct. In accordance with that map water from certain eaves of the new building of the defendant appellant falls on common rasta (pathway) of the parties. Those eaves must be rem...
(Lala) Gopi Chand Vs. Jodhraj Deojit and ors.
Court: Allahabad
Decided on: Mar-12-1929
Reported in: AIR1929All458
Ashworth, J.1. This second appeal arises out of a suit brought by the plaintiff-appellant for a declaration that certain property which the defendant-respondents have attached, and applied for sale of, in execution of a decree is not liable to attachment and sale. The appellant based his suit on a sale-deed by the judgment-debtor dated 15th October 1927. This sale-deed is admittedly subsequent to the respondent's decree.2. The trial Court in a rambling judgment held that the transfer was not voidable under Section 53, T.P. Act, because there was no sufficient evidence to prove that the judgment-debtor intended by this transfer to defeat or delay the plaintiff decree-holder. The judgment-debtor had other property to meet the decree and the transfer to the plaintiff was made for adequate consideration. This Court did not consider the question of the appellant being a bona fide transferee in good faith.3. In first appeal the District Judge held that as the sale by the judgment-debtor was ...
Mirza Mal Bhagwan Das Vs. Rameshar and ors.
Court: Allahabad
Decided on: Mar-12-1929
Reported in: AIR1929All536; 118Ind.Cas.145
Sen, J.1. This is a plaintiffs' appeal in a suit for recovery of Rs. 8,078-13-6 for the price of various articles, such as molasses, sugar, raw sugar, sesamum seed, grain, etc., supplied to the defendants together with commission and interest. The plaintiffs carry on the business of commission agency at Shahganj in the district of Jaunpur under the style of Mirza Mal Bhagwan Das. The suit was directed against nine defendants, seven of whom were sued as principals and the other two were sued as sureties.2. The plaintiffs alleged that defendants 1 to 4 were members of a joint family and were originally residents of Salimabad in the Kishangarh State in the district of Ajmer, that defendants 1 to 4 were related to the other defendants, that defendants 1 to 4 in partnership with defendants 5, 6 and 7 started a firm known as Kishori Lal Bhagwati Prasad at Kishengarh for carrying on trade, that defendant 1 Roormal was the managing member of the said partnership concern, that on the recommenda...
Musammat Kamela Bibi Vs. Sheikh Baqar HusaIn and anr. and Musammat Kha ...
Court: Allahabad
Decided on: Mar-12-1929
Reported in: 118Ind.Cas.168
Boys, J.1. This is a defendant's appeal arising out of a suit for redemption. The first question arising for decision is whether the judgment of the lower Appellate Court that the fact of there being an existing mortgage is res judicata and that the defendant cannot challenge now the existence of the mortgage is correct or not? If the answer be in the affirmative no further question arises. In 1863, the plaintiff's predecessor executed a mortgage in favour of the defendant's predecessor, the terms of which were unusual, but it has been held to have been a mortgage by conditional sale, and in regard to this no question now arises. In 1867, the predecessor-in-title of the defendants took certain proceedings under Regulation XVII of 1806. In 1906, the predecessor-in-title of the defendants brought a suit against the predecessor-in-title of the plaintiff for possession of certain trees, and the question for determination is whether the finding in this suit of 1906, that the plaintiff in th...
Mithan Lal Vs. Maya Devi and ors.
Court: Allahabad
Decided on: Mar-07-1929
Reported in: AIR1929All444; 121Ind.Cas.689
1. This is a judgment-debtor's appeal from an order of remand. Mt. Nando Kuer, the widow of Durga Prasad, brought a suit against Mante Lal, Gaya Prasad, Jamuna Prasad and Lachhmi Narain for her maintenance due to her under an agreement made with them and charged on certain property and obtained a preliminary decree from the Munsif of Jalesar. The appeal against this preliminary decree was confirmed on 21st October 1923.2. There next followed some efforts on behalf of Mt. Nando Kuer to execute the decree but on 20th January 1926, it was held as we are informed, that there could be no execution till a final decree had been prepared under Order 34, Rule 5. On the same date, 20th January 1926, Mt Nandu Kuar made a gift of her rights secured by this preliminary decree to her daughters, one of whom was Mt. Maya Devi, the present respondent. On 29th January 1926, Mt. Nando Kuer died. No steps were thereupon taken by anybody to bring her legal representatives on the record. The litigation cont...
Rikhab Kumar and anr. Vs. Trivedi and Co.
Court: Allahabad
Decided on: Mar-07-1929
Reported in: AIR1929All455
1. The plaintiffs and the defendants entered into a contract for the purchase of certain plate cuttings, the plaintiffs being the buyers, and the defendants being the vendors. The plaintiffs on 31st December 1925 entered into the ordinary form of contract which provided for arbitration in the event of any dispute or difference. A dispute arose and the parties each appointed an arbitrator, and after the refusal of the Bengal Chamber of Commerce to act as umpire, they appointed a Mr. Cameron. For reasons which we need not enter into, the High Court of Calcutta set Mr. Cameron's award aside, and thereupon, on 21st June 1927, the defendants nominated Mr. Leo as their arbitrator, he having been the same gentleman who had sat as arbitrator on their behalf before. The plaintiffs objected to this, probably on the ground that Mr. Lee had already expressed his opinion favourably to the defendants. The plaintiffs made various applications to get the appointment of Mr. Lee, who by lapse of time wa...
Baldeo Prasad Shukul Vs. Sukhdeo Prasad Shukul
Court: Allahabad
Decided on: Mar-07-1929
Reported in: AIR1929All485; 121Ind.Cas.552
Boys, J.1. This is a decree-holder's first appeal from an order in execution proceedings.2. The decree-holder (who was also the auction-purchaser) had secured an order setting aside a sale on the ground that the judgment-debtor had no saleable interest in the property. The judgment-debtor secured a reversal of that order, and the decree-holder comes in appeal. The history of the case is both intricate in its facts and further involves a number of questions of law. It is, therefore, essential to state the facts at some length in order to appreciate the situation which has arisen. There have been many other proceedings since the decree-holder obtained his decree, but after a protracted hearing there is no reason to suppose that any fact material to this appeal is not now before us as a result of the contentions of counsel amplified by a perusal by the Court of the proceedings on the record.3. In 1915 the appellant, Baldeo Prasad Shukul, obtained a decree against Sukhdeo Prasad Shukul, th...
Rameshar Prasad Lal Vs. Ghisiawan Prasad and ors.
Court: Allahabad
Decided on: Mar-07-1929
Reported in: AIR1929All531; 121Ind.Cas.241
1. This is a plaintiff's appeal arising out of a suit for pre-emption. The property in dispute was sold under a sale-deed dated 18th March 1924 for Rs. 30.000. The plaintiff claimed that under Section 5, Agra Pre-emption Act, which governs this transaction he had a right of pre-emption. The main defence to the suit was a denial of any right of pre-emption in that village, and also a plea that the plaintiff was estopped from pre-empting the property on account of a previous refusal. The learned Subordinate Judge has found both the points against the plaintiff and has dismissed the suit.2. We are not prepared to accept the view of the Court below that there is no right of pre-emption in this village. In the wajib-ul-arz of 1292-F, (1885) under the heading 'custom of pre-emption' we have an entry which has been translated by the official translator as follows:At the time of transfer of the property of any cosharer other cosharers have a right of pre-emption according to the rule and custo...
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