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of Nazir Begam. that Khwajah Bakbsh, and not Basti Begam. was the heir to
Moti Bpgam. Held that the suit commenced on tbe 3rd of June 1887 did not
operate as res jvidicata in respect of the present plaintiff's (Nazir Begam's) claim
under her ossignment from Basti Begam. Fostir v. The Earl of Derby (5)
referred to.

[P., 35 B. 297 <300) = ]3 Bom. L. R. 268 = 10 Ind. Gas. 890 ; Rel., 36 B. 189 (198) = 14
Bom. L, S. 9 = 13 Ind. Cas. 849 (850).]

THE facts of this case sufficiently appear from the judgment of
Edge, C. J.

Babu Jogindro Nath Chaudhri, for the appellant.
Mr. D. Banerji, for the respondent.

JUDGMENT.

EDGE, C.J. The suit out of which this second appeal has arisen
was one brought against a lambardar for a share of profits in a mahal



* Second Appeal, No. 974 of 1890, from a decree cf Munshi Mata Prasad, Subordinate
Judge of Bare-illy, dated the 5th August 1800, modifying a decree of Maulvi Siraj-uddin,
Munsif of Bareilly, dated the 9th November 1889.

(1) 15 B, 532. (2) 10 G. 92. (3) 5 M. 15.

(4) 7 M. 421. (5) I. A. and E. 790.

786



YII] NIAZ-ULLAH KHAN V. NAZIR BBQAM 15 All. Ill

which accrued for fche years 1293 and 1294 Fasli. The plaintiff claimed 1892
under an assignment executed in her favour on the 29th of July 1889, by DEC. 7.
one Basli Begam, whom the plaintiff alleged to have been the heir to one
Moti Begam deceased. Moti Begam during her life-time was a co-sharer APPEL-
and was recorded as such for the shares in respect of which the profits LATE
claimed accrued. Moti Begam died after the profits for 1293 Fasli had
accrued due and before the profits for 1294 Fasli had become due and
divisible. ISA. 108=

The suit was resisted on two grounds, one, which went to the whole 12 A.W.N.
suit, was that one Khwajah Bakhsh and not Basti Begam was the heir (1892) 246.
of Mobi Begam. The other ground was that as to the profits claimed in
respect of 1293 Falsi, they were profits due from the lambardar to Moti
Begam deceased, and no certificate, probate or letters of administration
within the meaning of s. 4 of Act No. VII of 1889 had been produced,
although this suit was commenced after the coming into force of that Act.
We shall dispose of the last point first. Act No. VII of 1889 applying,
not only at the time when the suit was commenced, but also at the
times when the decree in the first Court and the decree in appeal were
passed, s. 4 precluded any of?the Courts from giving a decree in the plain-
[110]tiff s favour for the profits of 1293 Fasli, no matter what her title
may have been. So far the appeal succeeds with proportionate costs.

The other ground of defence raises a more difficult question. It has
been found on the evidence in the lower apoellate Court that Basti Begam
and not Khwajah Bakhsh was the heir of. Moti Begam. It is contended,
however, that a decree in another suit in which the present defendant-
appellant was the plaintiff and in which Basti Begam and Khwajah
Bakhsh were defendants amongst others, and in which it was decided
that Khwajah Bakhsh and not Basti Begam was the heir of Moti Begam,
renders s. 13 of the Code of Civil Procedure applicable. The other suit
to which we refer was instituted on the 3rd of June 1887, and was in
respect of a house claimed by the present defendant-appellant, the then
plaintiff, he claiming his title by assigment from Khwajah Bakhsh as
heir to Moti Begam. In that suit the first Court on the 18th of November
1887, dismissed the suit on the finding that Basti Begam and not
Khwajah Bakhsh was the heir of Moti Begam. The case went up on
appeal, and the first appellate Court on the 19th of May 1890, reversed
the decree of the first Court, finding that Khwajah Bakbsh and not Basti
Begam was the heir of Moti Begam. That decree was affirmed by this
Court on appeal on the 22nd of November 1892.

There are two points to be kept in mind in considering how far, if at
all, the litigation in the former suit affects the rights of the parties in this
one. One is that the plaintiff here claimed by an assignment from Basti
Begam, dated the 29th of July 1889, i.e., an assignment executed subse-
quently to the commencement of the other suit and prior to the final
decree in that suit. The second point is that the subject-matter of the
present suit was not in any sense the subject-matter of the former suit.
There is no doubt that if the subject-matter of this suit had been any
part of the subject-matter of the former suit, the doctrine of Us pendens
would apply ; and there is equally no doubt that if the assignment to
the plaintiff here, who was no party to the former suit, had been made
[1113 subsequently to the final decree in the former suit, the prin-
ciple of estoppel would apply. There appears to be, so far as we are
aware, no decision of the Courts in India bearing upon the precise
point which we have got to decide. A similar question arose in the

787



15 All. 112 INDIAN DECISIONS, NEW SEBIES [Yol.

1892 English Courts as far back as 1834, in the case of Doe dem Foster v. The
DEO.'?. Earl of Derby (1). In that case it was contended on the authority of a

passage in Comyns' Digest (Title Evidence A. 5), that a verdict in another

APPEL- suit against a party through whom one of the parties claimed was admis-

LATE sible in evidence, although such verdict was subsequent to the creation of

CIVIL kitle m ^ ne P ar ' y a amsl3 whom it was proposed to give it in evidence. The

' passage in Comyns' Digest relied upon was : " A verdict in another

8 A. 108= action for the same cause shall be allowed in evidence between the same
12 A.W.N. parties, so it shall be evidence where the verdict was for one under whom
(1892) 246. any of the first parties claim." That passage is explained in the judgment
of Mr. Justice Littledale at p. 790 of the Report thus : " But that must
mean a claim acquired through such party subsequently to the verdict. If,
as has been now argued, the rule could be extended to parties claiming
other lands under the same title previously to the verdict, the effect of
such verdict might the carried back for a hundred years. None of the
cases supports such a proposition. " That ruling is treated as correct at
the present day by the learned editors of Smith's Leading Cases (7th
edition, Vol. II, p. 846), and the same distinction is recognised in Bigelow
on Estoppels (p. 98). There are sound reasons of common sense why
persons in the position of the plaintiff here should not be estopped by a
final decree deciding the title of the person through whom the plaintiff
claims, but deciding it in a suit to which the plaintiff was not a party, and
deciding it after the date of assignment to the plaintiff, and deciding it in a
suit in which the subject-matter of the present suit was not involved. As
the plaintiff here was not interested by assignment or otherwise in any
portion of the subject-matter of the prior suit she could not have availed her-
self of the provisions of s. 372 of the Code of Civil Procedure, and have
got herself made a party to the prior suit in order to defend her interests
[112] which were not involved in that suit, but which she had subse-
quently to the commencement of that suit and before final decree in that
suit acquired.

We are therefore of opinion that the final decree in the-other suit does
not affect the position of the plaintiff here, and it having been found in
this suit in the lower appellate Court on evidence as a fact that her
assignor, Basti Begam, was the heir of Moti Begam, she is entitled to
maintain the decree which she obtained in the Court below so far as the
profits for the year 1294 Fasli are concerned. The appeal succeeds in
respect of the claim for the profits of 1293 Fasli, and the plaintiff's suit
to that extent will be dismissed with proportionate costs, and the decree
obtained below by the plaintiff will consequently be reduced by Rs. 242-0-3.
Otherwise the appeal is dismissed with proportionate costs, and the decree
below in respect of the profits of the year, 1294 Fasli is affirmed with
proportionate costs.

AlKMAN, J. I concur.

Decree modified.



(1) I, A. and E, 790,
788



YII]



BUJHAWAN BAI V. MAKUND LAL



15 All. 113



ISA. 112 = 12 A.W.N. (1892) 248.

APPELLATE CIVIL.
Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Aikman.



BUJHAWAN EAI AND OTHERS (Defendants) v. MAKUND LAL (Plaintiff).*

[7th December, 1892.]
Court-fee Appeal Ground of appeal going to the whole of the respondent's decree.

Where one of several appellants takes a ground of appeal which goes to the root
of the respondent's case, and which, if successful, would deprive the respondent
of his decree as a whole, and not merely of his interest in it quoad the particular
appellant, the appellate Court is justified in refusing to hear such appellant on
Buch ground as aforesaid unless he pays a Court fee sufficient/ to cover the whole
relief obtainable on such ground of appeal.

THE facts of this case sufficiently appear from the judgment of the
Courb.

Munshi Jwala Prasad, for the appellants.
Pandit Sundar Lai, for the respondent.

JUDGMENT.

[113] EDGE, C.J ,and AIKMAN, J. The appellants hereare the second
set of defendants. The suit is brought by the plaintiff on a mort-
gage of the 18th of December 1884, executed by the first set of defendants
in favour of the plaintiff. The mortgage was of 37 bighas 13 biswas 10
dhura. In 1880 a money decree had been passed against the first set of
defendants or their predecessors-in-title in favour of the second set of
defendants. For the purpose of executing that decree immoveable pro-
perty of the first set of defendants was attached on the 3rd of December
1883. Some litigation ensued between the first set of defendants and
the second, the first set of defendants claiming to have the sale under the
money decree of 1880 postponed. That litigation went against the first
set of defendants, and the 15 bighas 2 biswas of the itnreoveable property,
as it was found, which was attached on the 3rd of December 1883, was
brought to sale, on the 20l;h of March 1888, in executoin of the money
decree of 1880, and was purchased by the second set of defendants. The
second set of defendants contend that the property purchased by them in
execution of the decree of 1880, having been attached on the 3rd of
December 1883i the mortgage of the 18th of December 1884, upon which
the plaintiff has brought his suit, is void, under s. 276 of the Code of Civil
Procedure as against them qua the 15 bighas 2 biswas. On behalf of the
plaintiff it is contended that at the date of the mortgage, namely, the 18th
of December 1884, the property was not under attachment. Now there is
on the record no order releasing the property from attachment. The decree
in the execution of which the property was attached in December 1883
was unsatisfied on the 18th of December 1884, and the plaintiff's sole
ground in support of his contention is that the second set of defendants in
1887 applied for a fresh attachment and got an order for attachment on
their application. He relies upon the ruling of this Court in Gobind Singh
v. Zalim Singh (1). It appears to us that his contention is unsound, and
that the ruling in question does not apply. The second set of defendants

* Second Appeal, No. 1018 of 1890, from a decree of H.F.D. Pennington, Esq..
District Judge of Ghazipur, dated the 4th August 1690, modifying a decree of Pandit
Bansi Dhar, Subordinate Judge of Ghazipur, dated the 15th April 1390.

(1) 6 A. 33.

789



1892

DEC. 7,

APPEL-
LATE
CIVIL.

15 A. 112-=
12 A.W.N.
(1892) 248.



15 All. 114



INDIAN DECISIONS, NEW SERIES



[Yol.



1892 here did not of their own motion apply for a fresh artachment;

DEC. 7. on the contrary, they did so under the protest that the attachment of 1883

[114] was still in force. They made their application on the suggestion

APPEL- of the Munsif, and obviously not intending to admit that the previous

LATE attachment was not in force or intending to waive any rights which they

OlVlL. kad un der it. In the case of Gobind Singh v. Zalim Singh (1) referred to,

it appears to have been assumed that because the decree-holder there had

15 A. 112= of his own motion .applied for afresh attachment, the previous attachment

12 A.W.N. must have expired. Whether the inference drawn there on the facts was

(1892) 218. sound or not it is not necessary for us here to inquire ; the facts, at any

rate, are not the same. There is nothing on the face of this record to

make out the issue which lay upon the plaintiff, namely, that at the date

when the property was sold, i.e., the 20th of March 1888, the attachment

of the 3rd of December 1883 no longer subsisted. That issue was upon

the plaintiff and became an issue for him to make out when once it was

either proved or found that the property had been attached in execution of

the decree in execution of which it was ultimately sold. It was contended

on behalf of the plaintiff, however, that the principle of s. 13 of the Code

of Civil Procedure applied, and that it was not open to the second set of

defendants to show that the attachment of December 1883 was in force.

An order had been passed striking off some execution proceedings which

did not remove the attachment in our opinion, and did not profess to

remove it or to release the property from attachment, and the direction or

recommendation of the Munsif to the second set of defendants to put in a

fresh application for attachment was not a decision on any point between

the parties under cl. (c) of s. 244 of the Code. Consequently we hold that

the plaintiff's claim, so far as it relates to the 15 bighas 2 biswas fails,

by reason of s. 276 of the Code of Civil Procedure.

Another question in this appeal relates to the plaintiff's claim in
respect of 6 bighas 8 biswas 15 dhurs. The appellants here were
appellants in the Court below, and the ground of appeal cupon which,
it is stated here, they relied in the Court below to make out their case as to
these 6 bigbas odd, was their first ground of appeal, at least so far as this
Court is concerned. Now in that first ground [115] of appeal below these
appellants challenged the mortgage-deed of the plaintiffs as a whole, alleging
that it was collusive and had been executed without consideration, and
that it was not enforceable as against the appellants' land. The appellants
here did not pay Court fee sufficient to cover that ground of appeal with
reference to the whole deed. If they had made out that first ground of
appeal it would have gone to the root of the whole case of the plaintiff
and might have deprived the plaintiff of a decree based on that deed,
not only as against these appellants' land, but as against the property of
the other defendants.

The Court below declined to bear the appellants here, who were
appellants there, in support of that ground of appeal, unless they paid up
the Court fees on that ground of appeal, taking it as a challenge to the
whole deed. In our opinion the Court below properly applied the Court
Fees Act. Parties who come into Court, either as plaintiffs in a suit or
as appellants in an appeal, must, if they wish to limit the Court fees to
the actual remedy with which they are concerned, make a corresponding
limit in their prayers for relief in the plaint or in their grounds of appeal.
The result is that the appellants' appeal, so far as it relates to the 6 bighas

(I) 6 A. 33.
790



YII] SAKINA BIBI V. SWAEATH RAI 15 All. 116

odd, is dismissed with costs, and so far as it relates to the 15 bighas odd, 1892
it is decreed with costs in proportion, and the decree of the first Oourt is DEC. 7.
reinstated. The costs of the lower Court will be in proportion to the
success and failure of the parties in this Court. Decree modified. APPEL-

LATE
ISA. 113 = 13 A.W.N. (1893) 11. OlVIL.

APPELLATE CIVIL. 13A~Tl2=

Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Aikman. ^ A.W.N.

(1892) 218.

SAKINA BIBI AND' OTHERS (Plaintiffs) v. SWABATH EAI (Defendant)*

[9th December, 1892.]

Civil and Revenue Courts, jurisdiction of Act XII of 1891, s. 95 Suit involving the
determination of status of tenant.

A Civil Court has no jurisdiction to entertain a suit, the decision of which
necessarily involves the determination of the class of tenancy of one or other
of the parties to it. Mah c sh Rai v. Chundar Rai (1) referred to.
[R., 18 A. 270 (F.B.) ; D., 16 A. 325, 328.]

[116] THE plaintiff in the case were zemindars of the village of
Tari in the Ghazipur district. The defendants named in the plaint, namely,
Swarath Bai, and Musammat Kadma Kuar, the latter of whom appears to
have died during the pendency of the suit, were respectively cousin and
widow of one Earn Jiawan Rai, deceased, a cultivator of Tari. The plain-
tiffs sued for cancellation of a deed of gift of certain land in the village
executed by Musammat Kadma Kuar, deceased, and for a declaration of
their rights in respect of the said land, on the following grounds : (1) that
the land was an occupancy-holding, and the donee was not a partner in
the cultivation, and (2) that Musammat Kadma Kuar was a childless widow
and therefore incapable of alienating more than a life-interest in the land.
The defendant, Swarath Bai, in his written statement, pleaded, amongst
other things, that the suit was not cognizable by a Civil Court, and denied
specifically that the land in suit was an occupancy-holding. He also
pleaded that be was in any case a partner in the cultivation of the said
land, and further that be was next in succession to Musammat Kadma
Kuar, the deceased widow. The Court of first instance (the Subordinate
Judge) found upon every issue in the case in favour of the defendant, and
dismissed the plaintiffs' suit accordingly. The plaintiffs appealed to the
District Judge, who, considering the finding that the position of the defen-
dant's donor had been that of a tenant at fixed rates sufficient to dispose
of the appeal, dismissed it. The plaintiffs then appealed to the High
Comt.

Mr. T. Conlan, and Mr. D. Banerji, for the appellants.

Mr. A. Strachey, and Mr. Abdul Raoof, for the respondent.

JUDGMENT.

EDGE, C.J., and AIKMAN, J. The ruling in Mahesh Rai and others
v. Chandar Rai and others (1) applies. The Civil Court had no jurisdic-
tion to entertain this suit, which could only be decided on the trial of the
issue as to the status of a tenant, a matter excluded by 8. 95 of Act
No. XII of 1881, from the jurisdiction of Civil Courts. The appeal
is dismissed with costs. Appeal dismissed.

' Second Appeal, No. 1022 of 1890, from a decree of H. P. D. Pennington, Esq.,
District Judge of Ghazipur. dated the llth July 1890, confirming a decree of Eabu
Lalta Prasad, Subordinate Judge of Ghazipur, dated the 19th March, 1890.

(1) 13 A. 17.

791



15 All. 117 INDIAN DECISIONS, NEW SERIES [Yol.

1392 ISA. 117-13 A.WN. (1893)45.

DEC. 17. [117] APPELLATE CIVIL.

APPEL- Before Sir John Edge, Et., Chief Justice, and Mr. Justice Burkitt

and Mr. Justice Aikman.
LATE



CIVIL.

BADRI PRASAD (Plaintiff) v. KUNDAN LAL (Defendant).*

18 A 117 = [17th December, 1892.]

13 A W N

Act VII of 1870, s. 5 Act VI of 1892, s. 3 Court fee. Finalitiy of decision of taxing

officer.

Where an appellant whose memorandum of uppeal bad been declared by the
taxing officer of the Court to be insufficiently stamped applied for relief under
s. 3 of Act No. VI of 1892, and it was found that the report of the taxing officer
was erroneous and that the correct stamp had as a matter of fact been put on
the memorandum of appeal, held, that the appellant was entitled to the relief
sought notwithstanding the provisions of s. 5 of Act No. VII of 1870.

[P., 6 A.L.J. 972 (975) =4 Ind. Gas. 123 ; R., 6 O.C. 372 (377).]

THE facts of this case sufficiently appear from the judgment of
the Court.

Munshi Kashi Prasad, for the appellant.
Pandit Sundar Lai, for the respondent.

JUDGMENT.

EDGE, C.J., BURKITT and AIKMAN, JJ. The question here arises as
to whether the defendant, who is appellant here, is entitled to the relief
provided by s- 3 of Act No. VI of 1892. The facts of the case are simple.
One Kundan Lai applied under s. 108 of Act No. XIX of 1873 for perfect
partition of his share in a mahal. Badri Prasad, who is defendant here,
objected on a question of title. That question was decided by the
Assistant Collector acting as a Civil Court under s. 113 of the above
mentioned Act, and he passed an order declaring that Kundan Lai was
entitled to have partition made of the share which he claimed and dis-
allowed the objection of Badri Prasad. Regarding it for the moment as
a purely civil suit, the Court fee would be a 10-rupee fee for a declaration
of title, which was the only relief which, under s. 113 of Act No. XIX
of 1673, a Collector or Assistant Collector acting as a Civil Court could
grant. Badri Prasad appealed to the District Judge under s. 114 of the
same Act. His appeal there was simply one against the order of
the Assistant Collector. That appeal would require merely a 10 rupee
Court fee stamp. His appeal was dimissed by the District
Judge and thereupon he brought the present appeal in this Court
[118] under &. 114 of the Act. By that appeal he merely sought to have
the decree of the lower appellate Court reversed. His memorandum of
appeal in this Court was presented on stamped paper of the value of Rs. 10.
His memorandum of appeal went before the officer of this Court whose
duty it is to see that the fees are paid under Chapter II of the Court Fees
Act, and he was of opinion that the fee of Rs. 10 was insufficient and that
the memorandum of appeal was not properly stamped and required an
extra ad volorem fee of Rs 90. The appellant's vakil did not agree with
that officer's opinion and the question of fee went under s. 5 before the then
taxing officer of this Court. By his decision the memorandum of appeal was

* Second Appeal, No. 1044 of 1389, from a decree of H, F. Evans, Esq., District
Judge of Moradabad, dated the 1st August 1899, confirming a decree of Maul vi Muham-
mad All Husain Khan, Assistant Collector of Bijnor, dated the 6th April 1889.

792



VI I] TILAE RAJ SINGH V. CHAKARDHARI SINGH 15 All, 119

insufficiently stamped and required an additional fee of Es. 90. That 1892

deficiency was made good after the period for the presenting of a properly DEC, 17.

stamped memorandum of appeal had expired. The peculiarity of this case

is that by s. 5 of the Court Fees Act the decision of- the taxing officer as to APPEL-

the requisite stamp was final and for purposes of this nature must be LATE

taken as final. However, what we have got to see is whether the CIVIL.

insufficiency of the stamp on the memorandum of appeal was caused by a

mistake on the part of the appellant as to the amount of the requisite IS * 117=

stamp. As a matter of fact, the memorandum of appeal was sufficiently 13 A.W.M.

stamped with a 10-rupee stamp, but the requisite stamp in this case, by (1893) 45.

reason of the Court Fees Act making the decision of the taxing officer

absolutely final, must be taken as Rs. 100. It was not the fault of the

appellant that it was decided that his appeal was insufficiently stamped,

and he could not foresee that the taxing officer would take a wrong view

of the law. We should say that in this case the gentleman who at that

time was acting temporarily as taxing officer was not the Registrar of

the Court, who ordinarily acts as taxing officer, but a gentleman who was

acting in his absence. We hold in this case that the appellant has shown

Himself entitled to the benefit of s. 3 of Act No. VI of 1892, and the

result is that we held that the memorandum of appeal has the same effect

and is " as valid," to use the words of the Act, " as if it had been

properly stamped." The appeal will go to a Bench of two Judges to be

disposed of on the other points.



15 A. 119=13 &.W.N. (1893) 14.

[119] APPELLATE CIVIL.

Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Aikman,



TILAK RAJ SINGH AND ANOTHER (Defendants) v. CHAKARDHARI
SINGH AND ANOTHER (Plaintiffs) .* [19th December, 1892.]

Civil Procedure. Code,'ss. 562, 591 Appeal Objection to previous order in the casB
Such objection to be taken in Memorandum of appeal.

Unless such objection is taken in his memorandum of appeal, it is not
open to an appellant at the hearing of an appeal from the decree to question the
validity of an order of remand previously made in the case under s. 582 of the
Code of Civil Procedure.
CF., 18 A. 19 (22) ; 20 A. 370 (372) ; R.. 12 C.P.L.B. 119 (121).]



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 116 of 155)