Court : Allahabad
Reported in : AIR1939All37
Bennet Ag., C.J.1. In this second appeal an issue has been referred to this Full Bench as follows:Whether in the circumstances of this case the land in dispute should be considered to be appurtenant to the defendants' holding, and if so, what is the legal position of the parties with respect to it?2. The circumstances of the case are as follows. The plaintiff is the zamindar of two abadi plots given in the plaint as No. 60 area 3 biswas 7 biswansis and No. 61/2 area 1 biswa 12 biswansis in mauza Akbarpur, District Aligarh. He claimed in the plaint of 1934 that three months previously the defendants who are occupancy tenants in the village and who live there had made certain constructions, cattle shed, etc., in these numbers which did not belong to them and the plaintiff sued for demolition and injunction. Of the defendants the first three are brothers and they pleaded that their houses had been there for more than 50 years, andthe cattle of the contesting defendants have been tethered ...
Tag this Judgment!Court : Allahabad
Reported in : AIR1939All74
ORDERMulla, J.1. This is an application in revision under Section 25, Small Cause Courts Act. It arises out of a suit for recovering a certain amount on. the basis of a pronote. The applicant here was the plaintiff' in the Court below. The pronote upon which the suit is based was executed by the opposite parties Shiv Narain Katiyar and Kanhi Singh on 21st July 1934 and the suit was instituted on 20th July 1937, that is on the last day of limitation. The plaintiff impleaded both the executants of the pro-note as defendants. It is admitted that one of the defendants, namely Shiv Narain Katiyar, had previously made an application under Section 4, Encumbered Estates Act, and had obtained an order from the Collector under Section 6 of that Act. The suit was not contested by Shiv Narain Katiyar, but the other defendant Kanhi Singh wanted to tako advantage of the fact that Shiv Narain Katiyar had made an application under Section 4, Encumbered Estates Act, and had secured an order of the Coll...
Tag this Judgment!Court : Allahabad
Reported in : AIR1939All47
ORDERMulla, J.1. This is an application in revision under Section 115, Civil P.C., which arises in the following circumstances. The applicant, Narain Das, entered into a contract which has been described as satta, with two persons, namely Gur Dayal Singh and Nathu Singh. Under that contract, Gur Dayal Singh and Nathu Singh agreed to supply a certain quantity of rab to the applicant at a certain price agreed upon between the parties. The applicant paid a sum of Rs. 800 to them as the price of the goods that were to be supplied to him. Gur Dayal Singh and Nathu Singh failed to carry out their part of the contract whereupon the applicant brought a suit to recover the sum of Rs. 800 which he had paid them in the above mentioned circumstances and also a certain amount as damages for breach of contract. The suit ended in a decree for the applicant which was put into execution against Gur Dayal Singh and Nathu Singh. Gur Dayal Singh diod during the pendency of the execution proceeding and his...
Tag this Judgment!Court : Allahabad
Reported in : AIR1939All66
Misra, J.1. This appeal, though termed by the office as an execution first appeal, is an appeal arising out of proceedings under Section 144, Civil P.C. Such proceedings, as has1 been held by a Full Bench of this Court in Parmeshwar Singh v. Sital Din Dube : AIR1934All626 , are not proceedings in; execution of decree. The facts which have given rise to this appeal are as follows : The applicant in this appeal filed a suit in the year 1927 for specific performance of a contract of sale against Munshi Mahyar Khan, defendant-respondent 1, and Kunwar Nand Lal deceased, predecessor-in-interest of defendants-respondents 2 to 4. The suit was dismissed, by the trial Court of the Civil Judge with costs. By executing their decree for costs defendant-respondent 1 realized from the plaintiffs a sum of Rs. 683 on 22nd June 1928 and Nand Lal deceased realized Rs. 662-2-6 his costs on 24th January 1929. The plaintiffs filed an appeal against the decree of the trial Court and on 24th July 1930 this Co...
Tag this Judgment!Court : Allahabad
Reported in : AIR1939All77
ORDERMulla, J.1. This is an application in revision under Section 25, Small Cause Courts Act. The applicant here was the plaintiff in the Court below. He instituted a suit on 4th March 1937 against the opposite party Sohan Lal to recover a certain amount on the basis of a running account. The opposite party filed a written statement on 14th July 1937 and the case was fixed for final hearing on 26th November 1937 after some adjournments in the meantime, for certain reasons with which this Court is not concerned. On that date it appears that an issue was framed in the case and the plain, tiff was examined. The case was then adjourned to the next day, that is 27th November 1937, and on that date the evidence of the plaintiff and of a witness produced by him was recorded. The opposite party and his counsel were admittedly present on 26th November 1937; but, on the next day when the case was called up no one appeared on behalf of the opposite party, with the result that the Court proceeded ...
Tag this Judgment!Court : Allahabad
Reported in : AIR1939All72
Misra, J.1. This is a second appeal by the plaintiff in a suit to enforce a simple mortgage made by defendant-respondent 1 in favour of the plaintiff's predecessor-in-title, defendant-respondent 8. Defendants 2 and 3 are the sons of defendant 1, the mortgagor, and defendants 4 to 6 are his nephews. Defendant-respondent 7 was impleaded in the suit as a subsequent transferee, but the trial Court found that he was a prior transferee and the mortgage in favour of the plaintiff is subject to the rights of defendant-respondent 7. The mortgage-deed was for Rs. 125 and was executed on 29th March 1921. The plaintiff, appellant purchased the mortgagee rights of the original mortgagee, defendant 8, in execution of a decree on 10th July 1928. In para. 3 of the plaint the plaintiff alleged that defendants 1 to 6 are members of a joint Hindu family and defendant 1 is the head and manager of the aforesaid family. It was further alleged that the loan was taken and the bond in suit was executed by defe...
Tag this Judgment!Court : Allahabad
Reported in : AIR1939All46
ORDERMulla, J.1. This is an application in revision under Section 25, Small Cause Courts Act. The applicant here was the plaintiff in the Court below. He brought a suit in the Court of Small Causes at Meerut for recovering a certain amount from the opposite party as arrears of rent for a shop, and obtained an ex parte decree on 7th January 1937. On 16th January 1937, the opposite party made an application under Order 9, Rule 13 for getting that ex parte decree set aside. No cash security for costs was deposited in the Court along with that application, nor was any application previously made to the Court for permission to file a security bond. A security bond was however attached to the application. The applicant objected on the ground that the opposite party was not entitled to put in that security bond without having previously applied for the Court's direction to that effect. That objection was dismissed and the Court allowed the application made by the opposite party and set aside ...
Tag this Judgment!Court : Allahabad
Reported in : AIR1939All57
Iqbal Ahmad, J.1. This appeal was heard ex parte and allowed by me on 16th April 1937. But, on an application for the setting aside of the ex parte decision being made that decision was set aside and the appeal was restored to its original number and is for disposal before me today. After hearing the learned Counsel for the parties, I have come to the conclusion that my ex parte decision was erroneous and that this appeal must fail. The facts that give rise to the questions of law that have to be decided in the present appeal are undisputed and are as follows : A decree for costs was passed in favour of the appellant decree-holders by the Court of the Subordinate Judge of Azamgarh on 16th July 1928 and within three years of that date, viz. on 14th July 1931, the decree-holders filed an application in that Court under Section 39, Civil P.C. The application was on a form prescribed by Order 21, Rule 11, Civil P.C., and the prayer contained in the application was as follows:The property o...
Tag this Judgment!Court : Allahabad
Reported in : AIR1939All61
Mohammad Ismail, J.1. This is a defendants' appeal from a decree of the learned Civil Judge of Azamgarh which affirmed a decree of the learned Munsif of Haveli in that district. It is common ground that one Achraj Singh died some time in the year 1909. Mt. Sonbarsa Kunwar the widow of the deceased, succeeded her husband and remained in possession of the property till her death which occurred on 31st May 1922. Upon the death of the widow, several persons claiming to be reversioners to the last male owner applied to the Revenue Court for the mutation of their names. Ultimately, the defendant Bindeshwari Singh was successful on the ground of possession and his name was recorded in the village papers. The order of the mutation Court was passed on 2nd March 1923. The present suit was instituted on 8th May 1924 on the allegation that the plaintiff's father Sadashiv Singh who died on 1st May 1923 was the nearest reversioner to Acharaj Singh, the last male owner. The suit was contested by the ...
Tag this Judgment!Court : Allahabad
Reported in : AIR1939All121
Bennet, Ag. C.J.1. This is an appeal by a person who was impleaded as defendant 1 in the action which was brought by respondent 1. The action was one in ejectment and a decree has been passed in favour of the plaintiff-respondent 1. The material facts, which are not in dispute, are these. One Qurban Ali had two sons, Ibrahim and Ismail. Qurban Ali had certain zamin-dari property which, on his death, was inherited by Ibrahim and Ismail in equal shares. Ibrahim died leaving a widow, Mt. Eabia Bibi, two minor sons, Anwar Ullah andlsrar Ullah, and three daughters, one of whom, Mt. Abida, has assumed the role of next friend of the infant plaintiff, Israr Ullah, in this action. It appears that the three daughters of Ibrahim relinquished their rights of inheritance in their father's property in favour of their mother and brothers. In the other branch, Ismail died leaving a son, Mohammad Shakir, and a daughter, Mt. Zubaida, and some other daughters who do not appear to have claimed any share i...
Tag this Judgment!