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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 143 of 155)
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suit was brought on the allegation that Musammat Karim-un-nissa was
the widow, and the two other plaintiffs the daughters, of Muhammad Ali.
As to some of the shares, they claimed to inherit them directly from
Muhammad Ali, and as to others, from Anwar Ali, whom the plaintiffs
alleged to have been the son of Muhammad Ali and to have inherited
and obtained possession of portions of Muhammad Ali's property.
Anwar Ali was the son of Muhammad Ali by Karim-un-nissa.
Muhammad Ali died in 1881. The suit was brought in 1889. The
defendants were and are in possession. It was found that before the time
Musammat Karim-un-nissa went through the ceremony of marriage with
Muhammad Ali, she had been married to one Amir Ali. Amir Ali died
about four years before this suit. The plaintiff endeavoured to prove that
Amir Ali had divorced Musammat Karim-un-nissa before she went

* Second Appeal No. 26 of 1891, from a decree of G L. Lang, Esq., Commissioner
of Jhansi, dated the 12th December, 1890, reversing a decree of W.R. Tucker, Esq.,
Assistant Commissioner of Jhansi, datad the 19th July, 1890.

(1) 10 A. 989.

973



15 All. 398



[Yol.



1893



'20.

APPEL-
LATE
CIVIL.

13 A. 396 =
13 A.W.N.

(1893) 167



through the ceremony of marriage with Muhammad Ali. Only one
witness was called to prove the alleged divorce. His evidence was
merely that Amir Ali stated to him that he had divorced Karim-un-
nissa. The Commissioner of Jhansi in the first appeal very properly
did not agt on that evidence, which was in our opinion entirely in-
sufficient on which to fiad- a divorce, but the Commissioner of Jbansi
having regard to the fact that a ceremony of marriage between Muham-
mad Ali, and Karim-un-nissa had been performed, the fact that they
lived together for fifteen years until Muhammad Ali's death, and the
fact that Muhammad Ali had treated Karim-un-nisaa's children in the
same manner as he treated bis undoubtedly legitimate children ; and
from the fact that Musammat Kariman, who waa the lawfully married
wKe or Muhammad Ali, had in 1881 acknowledged the legitimacy of Anwar
Ali and that measures had been taken bo secure Anwar Ali's succession
and inheritance to Muhammad Ali, cams to the conclusion that there was
so strong a presumption as to amount to a positive proof of the legality
of Karim-un-nissa's marriage. As the Commissioner of Jhansi referred bo
[398] these matters in connection with the question as to whether thera
bad been a divorce, he must have come to the opinion that there had
been a divorce. There was no direct finding that there had been a divorce
prior to the ceremony of marriage between Karim-un-nis^a and Muham-
mad Ali. Now none of those matters to which he referred are, in our
opinion, separately or collectively evidence on which the Commissioner
of Jhansi could find that Amir Ali had in fact divorced Musamtmt Karim-
un-nissa. The only direct evidence as to a divorce was that of bhe witness
who stated that Amir Ali had told him he had divorced Karim-un-nissa.
The Commissioner found that thab evidence, coupled with the repudia-
tion of Karim-un-nissa by Amir Ali and their total separation, was
not sufficient to establish a divorce. Tbe matters on which he relied
having regard to what takes place in native families were as con-
sistent with there having been a divorce as with there not having
been a divorce. As we have said, Amir Ali died only four years
before this suit, and if a divorce had taken place prior to the performance of
this marriage ceremony between Muhammad Ali and Karim-un-nissa,
cositive evidence of that might have been forthcoming. We must take
it, consequently, that there was no legal marriage established between
Muhammad Ali and Karim - zn-nissa. The result is that Karim-un-nissa
is npt a widow of Muhammad Ali, the other plaintiffs are nob his legitimate
daughters, and Anwar Ali was not his legitimate son.' It is true that
Anwar Ali was recognized by Muhammad Ali as his legitimate son, but,
following the ruling in Muhammad Allahdad Khan and another v. Muham-
mad Ismiil Khan and others (1) we hold that the acknowledgment by
Muhammad Ali of any child of Musammat Karim-un-nissa as his legitmate
child was worbhless, she being a person who was not capable of being
married to him and consequently was not capable of bearing legitimate
offspring to him. The result is that the plaintiffs are not entitled to
inherit directly from Muhammad Ali, and Anwar Ali was not entitled to
inherit from Muhammad Ali. The defendants are in possession. No
title superior or equal to theirs has [399] been proved by bhe olainbiffs to
disturb their possession, and consequently the suit fails. We allow this
appeal and dismiss the suit with costs in all Courts.

Appeal decreed.

41) 10 A. 289.
974



YII]



GULZAR SINGH V. KALYAN CHAND



15 All. 400



13 A. 399 = 13 A.W.N. (1893) 170.

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



GULZAR SINGH (Defendant] v. KALYAN OHAND (Plaintiff}*
[21st June, 1893.]

Cause of action, Suit by zamindir to recover possession of occupanty" holding against
occupancy t ninta^d his alleged transfiree in pass- ssion Death of occupancy tenant
alter filing cf sii'.t but before notice Act XII of 1881, s, 9.

A plaintiff if not entitled to a decree in his suit unless, by proof or admission
or default of pleading, he shown that when he instituted that suit he was entitled
to a decree.

*

One K. G , a zemindar, sued in a Oourt of Revenue to recover an occupancy
holding from one B. 8., his occupancy tenant, and that tenant's transferee G. 8. ,
to whom, by a transfer which was inoperative under s. 9 of Act No. XII of 1881
B S. had purported toimke over his occupancy holding. The occupancy tenant
died after the suit was filed, but before he had received notice of it, and the
transferee being in sole possession of the occupancy holding defended the suit.
Hi Id under the above circumstances that the zemindar's suit must fail,
inasmuch as at the time when it was filed be was not entitled to immediate
possession of the occupancy holding.

[Appl.. 31 A. 07 = 6 A.L.J. 762 (766); R., 31 A. 176-6 A.L.J. 263 (301)= 1 Ird Gas.
479; 8 A.L J. 458 = 10 Ind. Gas. 999 (1000) ; D., 16 A. 325 (328.]

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

Munshi Gobind Prasad, for the appellant.

Munshi Ram Prasad, Babu Datti Lai and Lala Sheo Charan Lai, for
the respondent.

JUDGMENT.

EDGE, C. J., and AIKMAN, J. The suit was brought by Lala Kalyan
Chand, a zamindar, against Baldeo Singh, who was a tenant having a right
of occupancy, but was ncfe a tenant at fixed rates, and against Gulzar Singh,
who was a sister's son of Baldeo Singh, to whom Baldeo Singh had made
a gift of all his interest in the occupancy holding. The suit was brought on
the 13bh of February 1890,. in a Court of Revenue, and a decree for pos-
session was claimed on the ground that Baldeo Singh, by making the gift
[400] had committed an act inconsistent with the purpose for which the
land was let. within the meaning of cl. (6) of s. 93 of Act No. XII of 1681.
Baldeo Singh died before notice of the plaint was served upon him, but
after the plaint was filed. He died some time between the 13th of
February and the 13th ot March 1890. The exact date of his death is
immaterial. The Court of Eevenue gave a decree for possession, and on
appeal to the District Judge of Allahabad he confirmed that decree, but on
different grounds. Gulzar Singh is the appellant here. We should say
that after Baldeo Singh had died, the plaintiff had Gulzar Singh, who was
already a defendant; in his personal capacity to the suit, made a defendant
as representing Baldeo Singh. Gulzar Singh in his representative capa-
city filed no written statement. In his personal capacity he filed a
written statement in which he alleged that the gift was good, as he was a

-' Second Appeal No. 00 of 1891, from a decne of F. E. Ellic', Esq., District
Judge of Allahabad dated tbe 4th February 1691, ronfirming a decree of Sved Mehdi
Ali. Assistant Collector of Allahf.bid, dated tbe 13th March 1890.



1893

JUNE 21.

APPEL-
LATE
CIVIL.

15 A. SS9 =
13 AW N.
(1893) 170.



975



15 All. 401



INDIAN DECISIONS, NEW SERIES



[Yol.



1893 partner with Baldeo Singh in the cultivation, and that Baldeo Singh
JUNE 21. was bis maternal uncle. He also pleaded that Baldeo Singh had died 20
days before the 13th of March 1890. Clause (6) of s. i;3 of Act No. XII
APPEL- of 1881 did not apply to the case. The learned District Judge, the case
LATE being before him in appeal, rightly disregarded the question as to whether
CiVIL khe 8U ^ na ^ been brought in the proper Court or not. He was entitled to
take thab course under ss. 206, 207. and 208 of Act No. XII of 1881. He
15 A. 399= remanded certain issues, and it was found, and he himself found, that
13A.WN. Gulzar Singh was not a co-sharer to whom a transfer could be made
(1893) 170. under the second paragraph of s. 9 of Act No. XII of 1881, i.e., that he
was not a co-sharer in favour of whom and Baldeo Singh the right of
occupancy originally arose and had not become by succession a co-sharer
in the right, and he found that at no time did Gulzar Singh share with
Baldeo Singh in the cultivation of the holding. That is, shortly, the effect
of the findings. It is therefore perfectly obvious that Gulzar Singh was
not a person to whom Baldeo Singh could transfer his right of occupancy.
On those findings, which are conclusive between the parties, it is obvious
that Gulzar Singh was not a person who could be entitled to inherit the
right of occupancy from Baldeo Singh, and, being a collateral, such
right; of occupancy could not devolve upon him. The case presents
[401] consequently, this peculiar feature, that if this suit had been brought
for possession against Gulzar Singh as a trespasser and had been brought
fourteen days after time when it was instituted, Gulzar Singh, on the facts
found, would have had absolutely no defence. We are assuming that
Baldeo S ngh left no direct descendant upon whom the right of occupancy
could devolve : yet it appears to us that the plaintiff's suit, treating it as a
suit for possession, and not looking at it as controlled in any way by the
reference to cl. (b) of s. 93 of Act No. XII of 1881, must fail. A person who
sues for possession of any immoveable property, i.e., who sues to have
another personin possession ejected, must, in order to entitle him to a decree,
show that he had himself a right to the immediate possession at the date
when he instituted his suit, assuming of course that his title to possession
is denied. Now the second paragraph of s. 9 of Act No. XII of 1881 pre-
vented the right of occupancy passing from Baldeo Singh to Gulzar Singh.
That paragraph of that section prevents any right of occupancy to which it
refers being transferable, except by voluntary, transfer, between persons in
favour of whom as co-sharers such right originally arose or who have bacome
by succession co-sharers therein. Consequently, the gift was absolutely in-
operative to transfer the right, and the right remained in Baldeo Singh,
unless the making of the gift amounted to a relinquishment. Section 31
of Act No. XII of 1881 contemplates occupancy tenants relinquishing
their occupancy tenancies and consequently -their rights of occupancy.
That section does not prohibit a relinquishment by an occupancy tenant,
but it does provide that unless the occupancy tenant who wishes to relin-
quish gives the notice required by that section and relinquishes accordingly,
he should continue liable for the rent, unless the landlord re-lets the land
to some other person. Such occupancy tenant who relinquishes and has
not given the notice provided for by that section would, no doubt, be liable
to make good the loss to the landlord during the time the occupancy
holding might remain unlet. Now, although it is clear that an occupancy
tenant can relinquish his occupancy right and his occupancy holding,
subject to any liability which he may incur by a non-observance of the
requirements of s. 31 of Act No. XII [402] of 1881, still it must in every
case be considered whether the facts show a relinquishmeb. As we under-

976



YII]



GULZAR SINGH V. KALYAN CHAND



15 All. S03



stand the meaning of relinquish men fc in this connection, it must be a
relinquishment to or in favour of the landholder. A relinguishment might
be inferred from a man ceasing to occupy the holding personally or by his
servants or by his tenants and going away under circumstances from
which it might be inferred that he did not intend to return and had
abandoned any interest that he bad in the holding. In such a case as
that we are of opinion that a Court might infer that the occupancy tenant
bad relinquished his holding and his occupancy rights, but in a case like
the present, in which it is obvious that Baldeo Singh, so far from intend-
ing to relinquish the right of occupancy or the occupancy holding in favour
of the zamindar, intended to transfer the holding and the right in it to his
donee and to keep that right alive, it would be impossible for a Court to find
that Baldeo Singh had relinquished in favour of his landlord his right
of occupancy, although in one sense he had in favour of his nephew
Gulzar Singh, so far as he was able, relinquished and intended to
relinquish his right of occupancy. The position then stands thus :
At the time when this suit was instituted Baldeo Singh, who had not
been ejected under Act No. XII of 1881 and who had not, transferred the
right of occupancy to any person in whose favour such transfer would be
effective under s. 9 of Act No. XII of 1881, and who bad not relinquished
his occupancy right in favour of his landlord, was alive and that right of
occupancy was then a subsisting right vested in Baldeo Singh. Baldeo
Singh and not the zamindar was the person who, as against Gulzar
Singh, was entitled to possession. The right not being transferable, whilst
that right subsisted in Baldeo Singh, his landlord, the zamindar, could
not prove a right in himself to the immediate possession of the occu-
pancy holding. In the view which we have taken in this case it was
immaterial that Baldeo Singh was made a defendant in the suit ; it
is immaterial that he has died, so long as his death was subsequent
to the institution of the suit, and io would be immaterial if he had
continued alive to the present day and had not put in a defence
in the suit, for Gulzar Singh on his pleadings read with the [403]
plaint, shows that the right of occupancy had been in Baldeo Singh,
and that Baldeo Singh was alive after the institution of the suit ; and
the plaint shows that the only ground on which a decree for possession
is claimed was that Baldeo Singh professed to make a gift of the occu-
pancy right and holding to Gulzar Singh and put Gulzar Singh in posses-
sion. A man peaceably in possession of immoveable property is entitled
to remain there until some one with a better title to immediate possession
obtains a decree ejecting him. At the commencement of this suit the
plaintiff was not entitled to the immediate possession of the occupancy
holding, although, if he had brought his suit one fortnight later, after Baldeo
Singh had died, and had brought that suit in the proper Court, Gulzar
Singh would apparently, on the facts found here, have been without a
defence. The ground on which we have to dismiss this suit, although a
technical ground, is a ground which it is necessary to observe in
law, viz., that the plaintiff is not entitled to a decree in his suit, unless, by
proof or admission or default of pleading, he shows that when he instituted
that suit he was entitled to the decree. The transaction here between
Baldeo Singh and Gulzar Singh was one flagrantly in contravention of the
second paragraph of s. 9 of Act No. XII of 1881, and was supported in
this suit by a false case. In speaking of a false case we refer to the
attempt on the part of Gulzar Singh to prove that he had shared in the
cultivation of the holding. For these reasons, although we allow the



1893

JUNE 21.

APPEL-
LATE

CIVIL
-

18 A. 399=
13 A.W.N,
(1893) 170.



A. VII 123



977



15 All. 404



INDIAN DECISIONS, NEW SERIES



[Yoh



1893

JUNE 21.

APPEL-
LATE
CIVIL.

13 A. 399 =

13 A.W.N.
(1893) 170.



appeal and dismiss the suit, we do so without costs in any Court. We
should say that obviously this decision, being one that at the time the suit
was brought the plaintiff was not entitled to a decree for possession,
cannot bar a suit which may be brought by the zamindar against Gulzar
Singh as a trespasser since the death of Baldeo Singh.

Appeal decreed.



15 A. 404 = 13 A.W.N. (1893) 168.
[404] APPELLATE CIVIL.

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



BENI MADHO (Defendant) v. GAYA PKASAD (Plaintiff}*

[22nd June, 1893.]
Jurisdiction Civil and Revenue Courts Set-off.

A Court; of Revenue cannot entertain a claim to a set-eft unless such claim,
if made the subject of a suit, would fall within its jurisdiction.

Held that in a suit in a Court of Revenue by a lambardar to recover rent, the
defendant was not competent to plead as a set-off that certain arrears of mail-
Jtana were due to him by the plaintiff.

R., SlndCas. S97 (298) = 12O.C. 124 (127).]"

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

Babu Eup Nath Banerji, for the appellant.

Babu Jogindro Nath Chaudhri, for the respondent.

JUDGMENT.

EDGE, C.J., and AIKMAN, J. The suit in which this appeal has
arisen was one for arrears of rent of an agricultural holding brought by the
lambardar in a Court of Eevenue. He sued for balances left unpaid in res-
pect of each of three years. The defendant put forward a claim to have
malikana, which he alleged was due to him, and which he alleged was
equivalent to the unpaid balances, allowed as a set-off against the plaintiff's
claim. The question before ,us is as to whether a Court of Eevenue
could entertain a set-off of this kind. The only two sections of Act
No. XII of 1881 which apparently specifically refer to set-off are ss. 42
and 151, but those sections are not exhaustive. A Court of Eevenue is
a Court with a limited jurisdiction. It has not got the ordinary juris-
diction of a Civil Court, and a Court of Eevenue cannot entertain a
suit which it is not given jurisdiction to hear, nor can it entertain
a set-off of a nature which is not within the ordinary jurisdiction
of the Court. In a suit for rent a Court of Eevenue could no doubt
entertain a set-off in respect of revenue which the tenant had been
obliged to pay. It could also, where the argeement for tenancy provided
that certain payments, if made, would be deducted from rent, go into the
question of set-off in respect of such payments, or, as in a case before
[405] the Court recently, in which the parties agreed that the interest of



* Second Appeal, No. 77 of 1991, from a decree of H. W. Reynolds, Esq., Offi-
ciating District Judge of Banda, dated the 14th October 1890, modifying a decree
of Munsbi Nazar Muhammad Khan, Assistant Collector of Bauda, dated tha 9th July
1890.



978



YII]



J. J. GUISE V. JAISRAJ



15 All. 406



a bond should be deducted from the rent. The Court of Revenue cannot 1893

entertain a set-off in a case in which the assistance of a Civil Court JUNE 1%,
would be required to ascertain a title or to determine whether thera had

been a contract not relating to the tenancy. No Court can entertain a APPEL-

set-off if it would nob have had jurisdiction to entertain a suit if one had LATE

been brought to recover the money sougbt to be set-off. In this case the ClVIL.
District Judge rightly determined that the Court of Revenue had no

jurisdiction to entertain the set-off claimed. We dismiss the appeal with 15 A. 40J =

costs. *-W.H.

Appeal dismissed. (1893 > 168



15 A. 405 = 13 A.W.N. (1893) 172.

REVISIONAL CIVIL.
Before Mr. Justice Barkitt.



J. J. GUISE AND OTHERS (Applicants) V. JAISRAJ AND ANOTHER

(Opposite parties}.* L28th June, 1893.]
High Court's powir of revision Practice Civil Procedure Coia, ss. 281, 283, 484. 622.

The High Court will not exercise its revisions! jurisdiction so long as there is
any other remedy open to the applicant.

Where a Subordinate Judge disallowed an application for the release of certain
property which had been attached before judgment : Held that there being a
remedy by suit undee s. 283 of the Code of Civil Procedure, the High Court should
not interfere with suoh order in revision, Ittiachan v. Velappin (I), Slwf> Frasad
Singh v. Kastura Kuir ( V 2) and Gopal Das v. Alzf Khan (;*} referred to.

[R., 18 A. 163 = 16 A W.N. 18 ; 28 A. 72 (741 = 2 A.L.J. 749 = A W.N. (1905) 191 ; 34 A.
592 (594i = 10 A.L.J. 130^=16 Ind. C*s. 1 (2) ; 2 A.L.J. 370; 2 Ind. C*s. 284=12
O.G. 109; 8 Ind. Gas. 613 = 3 Bur.L.T. 39 ; 8 Ind. Gas. 876 = 13 O.C. 341:80P,L
R. 1901 ; 57 P.L.R. 1903 = 13 P.R. 1903-; D., 1 L.B.R. 180 (182.),]

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

The Hon'ble Mr. Colvin, Mr. A. H. S. Reid, and Pandit Moti Lai,
for the applicants.

Mr. T. Conlan, for the opposite parties.

JUDGMENT.

BURKITT, J. This is an application for revision of an order passed
on the 26th of August 1892, by the Subordinate Judge of [406] Azamgarh
by which he refused to release certain property then under attachment.
It appears that certain chests of indigo manufactured by Mr. Cooper at
the Maharajganj factory in the Azamgarh district had been sent by
Mr. Coopar bo Messrs. Burn and Co.'s office at Azamgarh for despatch to
Calcutta. While fchere they were attached by order of the Subordinate
Judge before decree by some parties who had instituted a suit against
Mr. Cooper. The attachment was made under the provisions of s. 484 of the
Code of Civil Procedure. Subsequently the present applicants, who are the
firm of Messrs. Gisborne and Co. of Calcutta, put in an objection to the



* Miscellaneous, No. 2 of 1893, application for revision under s. 622 of the Code
of Civil Procedure.

(1) 8 M. 484. (3) 10 A. 119. (3) 11 A. 383.

979



15 All. 407



INDIAN DECISIONS, NEW SERIES



[Yol.



1893 attachment before the Subordinate Judge. Their objection practically amount-
JUNE 28. e ^ k bhis ; that under an arrangement made between them and Mr. Cooper
whose creditors they were for a large amount, the Maharajganj factory and
REVI- its produce, present and future, had been mortgaged to them. The Subordi-
SIONAL na * e Judge refused to release the property from attachment chiefly, it would
CIVIL a PPear, because he held that it had not been in the possession of the
applicants and that they had only a lien on it. He refused to adjudicate on
IS A. 403= the conflicting rights of the parties to the indigo chests or their proceeds.
13 A.W N. His order was one purporting to be passed under s. 281 of the Code of
(1893) 172. Civil Procedure, and by it the Subordinate Judge disallowed the application
to have the property released from attachment and to have it made over
to the applicants. As to this order ic is admitted by the learned coin sel
who appeared for the applicants that the applicants have still leftto them a
remedy by the suit mentioned in s. 283. For the opposite party Mr. Conlan
takes an objection that in such a case as an order passed under 3. 281, this
Court will not exercise its revisional powers. In support of that contention
he mentioned several authorities. Those to which I would refer are I'.tia-
chan v. Nelapvan (1) in which a Full Bench of the Madras High Court
held that they had no power to interfere in revision in the case of an
order passed under s. 281 and that applicants' proper remedy was by
suit. Similarly, in the case of Sheo Prasad Singh v. Kastura Kuar (2)
[407 J this Court held that the special and extraordinary reme <y, by
invoking the revisional powers of this Court, should not be exercised un-
less as a last resource for an aggrieved litigant. Again, in the case of
Gopal Das v. Alaf Khan (3), Mr. Justice Straight, whose judgment was
afterwards affirmed on appeal, is reported to have said : " The recognized
rule of this Court is that if a party to civil proceedings applies to us to
exercise our powers under s. 622, he must satisfy us that he has no other
remedy open to him under the law to set right that which he says has
been illegally, irregularly or without jurisdiction done by a Subordinate
Court." These last two cases apply in every way to the case I am now



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 143 of 155)