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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 149 of 155)
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property, the Court would hold unless something to the contrary appeared,
that the sale was of that share and interest only. MUHAMMAD HUSAIN
v. DIP CHAND, U A. 190 = 12 A.W.N. (1892), 53 ... 492

(S) See EXECUTION OF DECREE, 15 A. 380,

(4) See HINDULAW (ALIENATION), 14 A. 179; 15 A, 339,

(5) See HINDU LAW (DEBTS), 15 A. 75.

(6) Bee HINDU LAW (PARTITION), 13. A, 165; 14 A. 498.
8, Maintenance.

(1) Hindu widow Maintenance Attachment of property assigned in lieu of

maintenance Civil Procedure Code, s. 266, cl. (1). Btld that an interest
in the income of immoveable property assigned by way of maintenance to
a Hindu widow by the members of a her family ia not o^p^ble of being
attached and sold in execution of decree against the widow. GULAB
KUAR v. BANSIDHAR, 15 A. 371 = 13 A.W.N. (1893) 149 ... 966

(2) See HINDU LAW (WIDOW), 15 A. 382.
P. Marriage.

See HUSBAND AND WIFE, 13 A. 126.
10. Minority and Guardianship.

See HINDU LAW (PARTITION), 14 A. 498,
11. -Partition.

(1) Evidence of partition of joint family Presumption, In a suit to enforce an

alleged right of one brother against another, to separate proprietary pos-
session of a share in joint family estate, the concurrent findings of the
Courts below were definitely to the effect that a partition had taken place,
after which the brothers had been no longer joint as to their interests.
The Courts had fully gone into the case on either side, receiving the evidence
offered hy either party, and they had considered the whole of it. Therefore,
it could net be effectively urged, as a ground of appeal, that the Courta
below, in coming to the above conclusion, had erred in putting the burden
of proof unduly upon the plaintiff, or disregarded the presumption arising
from the original state of the family. RAM CHARAN v. DEBI DIN, 13
A. 165 (P.C.) = 58ar. P.C J. 616 ... 103

(2) Joint Hindu family Partition to detriment of minor Suit by minor on

attaining majority to recover his full share Limitation Act XV of
1877, sch. ii, arts. 95 and 96. Certain members of a joint Hindu family
partitioned the family property among them in such a way as to give
one member of the family, who at the time of the partition was a minor,
less than the share to which he was entitled. The minor was represented
in the partition by his uncle, though the uncle was not the natural
guardian of the minor, nor in any other way entitled to deal with the
minor's property. The minor on attaining majority brought a suit for
recovery of the full share to which he was entitled. Held that this was
not a suit for relief on the ground of fraud or mistake, inasmuch as tha
partition could not under the circumstances affect in any way tha
rights of the minor. The suit was therefore not subject to the liinita-



GENERAL INDEX,

Hindu Law 1 1 Partition (Ceneluied) . PAGE

tion of three years prescribed by arts. "95 and 96 of the second schedule
of Act ND. XV of 1877. LAL BAHADUR SINGH V SlSPAL SINGH, 14
A. 498 = 1 C 2 A.W.N. (1882) 61 ... 687

12, Religious Endowment,

Bee MAHANT, 13 A. 256.
13. Reversioner.

(1) Hindu WidMV Rtversioner -Right to sue Next presumptive reversioner In-

trrve-nfag woman's estate. The plaintiff, grandson (daughter's son) of a de-

;iintiu, sued during the lifetime of his mother to sot aside a will

.made by his mother's father in favour of an idol under the management

of his stepmother, the testator's seoond wife.
Eeli, that, there being no evidence of oollueion or connivance, the plaintiff,

ii t being the next reversioner, was not competent to maintain the suit.

The fact that his mother's estate, should it ever come into her possession,

would be only a limited estate, would not effect the plaintiff's subsisting

position in respect of his right to sue. ISHWAB NARAIN v. JANKI, 15 A.

13-2 = 13 A.W.N. (1893)49 ... 802

(2) Sae LIMITATION ACT, Art. 141, 14 A. 156.
1 4, Succession,

See MAHANT, 13 A. 256.
IS. \Vidow.

(1) Eindu widow Burden ol proving necessity where a Hindu widow attempts

to alienate property held by her for her ividoio's estate. In order to sustain
an alienation of the property held by a Hindu widow for her widow's
estate, it must be shown either that there was legal necessity for the
alienation, or at least that the grantee was led, on reasonable ground, to
believe that there was.

In a suit upon a mortgage of such property executed under the authority of
a widow borrowing money, the point whether the loan was necessary was
expressed in the issues in the form of a question how far the defendants'
objections, grounded on the absence of necessity, were tenable. This was
obviously an incorrect mode of trying the suit, because it assumed that it
was for the defendants to show absence of necessity, and did not accord
with the obligation upon a mortgagee, claiming under a widow, to prove
a valid mortgage. It was sufficient to defeat the suit that, upon the
whole case, there bad bean no proof of the lender'.; having fulfilled the
legal obligation to inquire and satisfy himself that tha widow, from whom
he was taking a charge upon her husband's inheritance, had a proper
justification for so charging it. AMARNATH SAH v. ACHAN KUAR, 14
A. 420 !P.C.) = 19 I. A. 196 = 6 Bar. P.G.J. 197 ... 637

(2) Maintenance Suit on a consent decree to recover arrears of maintenance

TJnchastity of widow Starving maintenance, A decree obtained by a
Hindu widow declaring her right to maintenance is liable to beset aside or
suspended in its operation on proof of subsequent unohastity given by the
husband's relative?, either in a suit brought by them expressly for the pur-
pose of setting aside the decree, or in answer to the widow's suit to enforce
her right. Upon proof of such subsequent unohastity the widow is
entitled to no maintenance whatever. DAULTA KUARI v. MEGHU
TlWARI, 15 A. 38-2 = 13 A.W.N. (1893) 149 ... 963

(3) See HINDU LAW (ADOPTION), 13 A. 391.

(4) See HINDU LAW (GlFTy, 14 A. 377,

(5) See HINDU LAW (REVERSIONER), 15 A. 132,
Hundi.

See STAMP DUTY, 13 A, 66.
Husband and Wife.

Hindu Law Suit for restitution of conjugal rights Destrtion Cruelty Limita-
tionAct XV of 1877 (Limitation Act}, s. 23,sc7j.n, 2Vos. 34, 35 and 120.
The texts of the Hindu law relating to conjugal co-habitation and impos-
ing restrictions upon the liberty of the wife, and placing her under the

1017

A VII 129



GENERAL INDEX.
Husband and Wife -(Cone Zu<jZ). PAGE



control of her husband, are not merely moral precepts, bub rules of law.
The rights and duties which they create may be enforced by either party
against the other and not exclusively by the husband against thcj wife.
The Oivil Courts of British India, as occupying the posrO'sioii in ripest of
judicial functions, formerly occupied in the system of Hindu LT.W by the
Kinp, have undoubtedly jurisdiction in respect of the enforcement of such
rights and duties. The Civil Courts of British India can therefore properly
entertain a suit between Hindus for the restitution of conjug-tl rights, or
for the recovery of a wife who has deserted her husband.

It is not necessary, as a condition precedent to such suits, <ho parties being
Hindus, that there should be any demand by the plaintiff and refusal by
tbe defendant. The provisions of arts. 31 and 35 of the second schedule
of the Limitation Act cannot be taken as applicable to suits of this
description. To hold that they did apply would be to introduce serious
innovations into the personal law of the Hindus (and of tbe Muham-
nndans) which could not have been contemplated by a statute of tbe
nature and scope of the Limitation Act. The limitation applicable to
suits of the present nature is that of art. 120 of the second schedule, read
with s. 23 of the Limitation Act.

Desertion by a wife of her husband is permitted by the Hindu Law under
certain circumstance?, but the insanity of the hwband will not justify
his desertion by the wife. In any case desertion does not terminate the
relation of husband and wife. A suit for restituion of conjugal rights
oould in such case only be effectually met by establishing a plea of
some matrimonial offence on the part of the complainant such as would
entitle the defendant to a separation. Legal cruelty on the pitt o! tbe
complainant miy be a ground for refusing restitution of oonjugal rights, or
for imposing terms on the complainant. BlNDA v. KAUNS1LIA, 13 \.
126 = 11 A.W.N. (1891) 18 ...

Hypothecation.

(1) See EQUITABLE CHARGE, 16 A. 301.

(2) See MORTGAGE (SIMPLE MORTGAGE), 13 A. 28.
Illegal Agreement.

Sae CHAMPERTY, 15 A. 352.
Immoveable property.

(1) See MAGISTRATE, JURISDICTION OP, 15 A. 394.

(2) See STANDING CROPS, 14 A. 30.
Injunction.

(1) See APPEAL, 15 A. 8.

(2) 899 EXECUTION OF DECREE, 13 A. 76.

(3) See MORTGAGE (GENERAL.'. 14 A. 162.
Insolvency.

(1) Insolvency Procedure in case of dishonest applicant Powers of the Court
Civl Pr:cedure Code, ss. 350, 359 Construction of statutes Ref-rence to
statement of Objects and Reasons and to Report of Select Committee. A
Court is competent to take action under s. 359 of the Civil Procedure
Code at the instance of a creditor, after the hearing under e, 350 has
determined.

(Per STRAIGHT, J. It is desirable that an application under a. 359 should
be made immediately or as soon as possible after the hearing under s. 350,
but a delay of some months will not make the application uuentertain-
able.)

When once any of the frauds referred to in clauses (a), (6) or ( c) of s. 359
have boon proved at a hearing under s. 350, the Court must under s. 359

, either itself pass sentence on the applicant who has committed euob
frauds, or must send him to a Magistrate to be dealt with according to
Law The Court haa no option to decline to adopt either of these
courses.

In acting under s. 359, the Court does not re- try the questions of fact
decided by it at the hearing under s. 350, but has to proceed upon the



GENERAL INDEX.

Insolvency (Concluded.) PAB

findings come to at that hearing. An applicant for a declaration of in-
solvency who does not avail himself of his right of appeal from the order
rejecting his application, is concluded by the findings of fact at the
h p,-irg under s. 350, and oannos a!tarw-*rda question them.
In construing a statute the Court; cannot refer to the statement of Objects
and Reasons attached to a Bill, or to the report of a Select Cornmmee, or
to the debates of the Legislature, hut o-vn only look to tba statute its If,
KADIB BAKHSH v. BHAWANI PRASAD, 14 A. 145 = 12 A.W.N. (1892) 6... 463

(2) See EXECUTION OF DBCBEB, 14 A. 858.

(3) See PRINCIPAL AND SURETY, 13 A. 10 ; 15 A. 183.
Interest.

(1) Mortgage-bond Intaresl post diem Damages Act IV of 1882 (Ti-an$fer of

Property Act), ss. 67 and 83. Interest post diem on a mortgage- bond for a
teem certain and containing no express provision as to the payment of pest
diem interest is nothing else than damages for the breach of contract.
Such interest cannot be regarded as a> mare continuance of the ad diem
interest due on the mortgage band, aud, as such, as forming an integral p itt
of the mortgage debt, nor even as resembling such interest and farming a
"charge" upon the property, though nominally damages. In respect of
post diem interest givan by way of damages no distinction is to be drawn
be^we^n simple bonds and mortgage bonds SRI NIWAS RAM PANDE v.
UDITNARAIN MISR, 13 A. 330 = 11 A.W.N. (i89i) 66 ... 209-

(2) See CONTRACT ACT, s. 14, 15 A. 232.

(3) See DECREE, AMENDMENT OF, 15 A. 12.

(4) See HINDU LAW (ALIENATION), 15 A. 330.

Irregularity.

See APPELLATE COURT, 14 A, 366.

Issues.

See APPELLATE COURT, H A. 366 ; 15 A. 315.
Joinder of Causes of action.

See SPECIFIC RELIEF ACT, 15 A. 384.

Joint decree

See CROSS DECREES, 14 A. 339.

Joint Possession.

See POSSESSORY SUIT, 15 A. 412.
Joint trial of accused.

Criminal Procedure Code, ss. 233, 234, 537, 338, 339 Separate offences, effect of
trial of i:i the same proceeding Evidence, adm'ssibility ofPardon, with-
drawal of Trial of person whose pardon his been withdrawn. In a
Criminal trial evidaaoa otherwise admissible is not rendered inadmissible
by the fact that it discloses the commission of an oSanoe other than that
in respect of which the trial is bainjfheld.

An accuse 1 parson to whom a tender o? pirdoa hi? baan mvJe, and who has
given evidence under that; pirdon against persons who wara oo-acjused
with him, should not, ii such pardon is withdrawn, be put back into the
dock and tried as if he had never received a tender of pardon, but his
trial should be separate from and subsequent to tha 1 ; of the persons
co-accused with him.

Where four accused were at one and the same trial tried for offences of
murder and robbery committed in the course of one transaction and for
another robbery committed two or three hours previously and at a place
close to the scene of the robbery and murder -.Held that the trial of these
separate offences together, though an error or irregularity within the
meaning of s. 537 of the Code of Criminal Procedure, would not neces-
sarily render the whole trial void. QUEEN-EMPRESS v. MULUA, 14 A.
502=12 A.W.N. (1892) S5 ... 690



GENERAL INDEX.

Judgment. PAGE

Bee CIV. PRO. CODE, as, 203, 564, 622. 617, 13 A. 533.
Jurisdiction.

(1) Civil Proceiure Cole, s- 411 Sale of property for purpose of realizing Court-

fees erroneously supposed to be due to 'Government Such o*der ultra virea
and no necessity to bring a suit to set it aside Jurisdiction. Au order for
eale and a sale under such order are ultra vir(s and nullities when in fact
there was no jurisdiction in the Court to make the order. BALWANT
RAO v. MUHAMMAD HUSAIN, 15 A. 324=*13 A.W.N. (1893) 140 ... 924

(2) See APPELLATE COURT, 13 A, 320.

(3) Bee CIV. FRO. CODE, 8. 11, 14 A. 141,

(4) See REVISION, 14 A. 413.

(5) Sse VALUATION OF SUIT, 15 A. 63 ; 15 A. 378.
Jurisdiction of Civil Courts.

(1) Civil a id Revenue Courts ~Suitfor declaration thit tenants are shikmis a",d

not occupancy tenants, on that their holdings are plaintiffs' sir land -Act
XII of 1881 'N.W.P. Rent Act], ?s. 10, 95 (a) -Act XfX of 1873 (N W P.
Lind Revemit Act*, s. 241 A-.t I of 1877 (Specific Relief Act}, s. 42.
The effect of a. 95 (a) and s. 10 of the North Western Provinces Rent Act
(XII of 1681) ia to deprive the Civil Courts of jurisdiction to take cogni-
zance of any suit the object of which is to declare, as between the zemin-
dar and tenants, the status of the tenants.

A Civil Court has no jurisdiction to entertain a suit in which, the defendants
being admittedly the tenants of the plaintiffs, the plaintiffs, pray for a
declaration that certiin entries of the defendants in the revenue records
as occupancy tenants, and certain orders of the Revenue Courts maintain-
ing those entries, be sot aside, and that the defendants are shikmis and not
occupancy tenants, and that the land in question is the plaintff's sir land,
Such a suit cannot be brought within the Civil Court's jurisdiction by
dropping all the relief* claimed except the last-mentioned declaration,
that being merely of importance as incidental to the previous one?, and as
a roundabout mode of obtaining a declaration that the defendants are
not the plaintiff's occupancy tenants.

Per Edge, O.J., and Mahmopd.J. Whether the last-mentioned prayer is
one which could be brought under s. 42 of the Specifi > Relief Act quatre.

Per Straight, J, The suit might also be considered as one to set aside orders
passed by the Settlement Officer in the discharge of his duty for the pur-
pose of correcting the jimabandi as a part of the record of rights, and
thus the jurisdiction of the Civil Court was barred by s. 241 of the North-
Western Provinces Lind Revenue Act (XIX of 1873). MAHESH RAI v.
OHANDAR RAI. 13 A. 17 (F.B.) = io A.W.N. (1890) 235 .- ll

(2) Civil and Revenue Courts, jurisdiction of Act XII of 1881, s. 95 Suit in-

volving the determination of status of tenant. A Civil Court has no juris-
diction to entertain a suit, the decision of which necessarily involves the
determinaiion of the cla?s of tenancy of one or other of the parties to it.
SAKIN\ BIBI v. SWARATH RAT, 15 A, 115 = 13 A.W.N. (1893) 11 ... 791

(3) See CO-SHABERS, 14 A, 273 ; 15 A. 137.

(4) See HUSBXND AND WIFE, 13 A. 126.,

(5) Ssa JURISDICTION OP REVENUE (COURTS), 14 A. 381.

(6) BJO LANDLORD AND TENANT, 13 A. 364 ; 15 A. 387 (F.B ).

(7) Sse MAGISTRATE, JURISDICTION OP, 15 A. 394.

(8) See RES JUDICATA, 13 A. 309.
Jurisdiction of Courts.

(1) Sse APPEAL, 13 A. 78.

(2) See MAINTENANCE, 13 A. 348.

(3) See STAY OF EXECUTION, 15 A. 196.

(4) See SUBORDINATE JUDGES, JURISDICTION OF, 14 A. 348.
Jurisdiction of Revenue Courts.

(1) 4c<XTI o/188l (N. W.P. Bent Act),ss.9, 93, el. (a), 1124, 161 Land-
holder and tenant Occupancy tenant Suit by landholder againtt successor



GENERAL INDEX.

. ur sdiction of Revenue Courts (Concluded). PA0a

o/ occupancy tenant for airears of rent which accrued during th6 lifetime
of his predecessor Jurisdiction Civil and Revenue Courts. An occu-
pancy tenant in possession, who has accepted the occupancy holding, is
liable to be sued {or arrears of rent not barred by limitation which accrued
in the lifetime of the person from whom the right of occupancy ba
devolved upon him.

The suit above referred to is exclusively cognizable by a Court of Revenue.
So held by the Full Bench, Mahmood, J, dlssentiente. LEKHBAJ SINGH
v. RAI SINGH, 14 A. 381 (F.B.) = 12 A.W.N. (1892) 143 ... 612

(2) See CO SHARERS, 14 A. 273, 15 A. 137.

(3) See JURISDICTION OP CIVIL COURTS, 13 A. 17; 15 A. il.

(4) Sae LANDLORD AND TENANT, 13 A. 364 ; 15 A. 387 (P.B.)

(5) See MAGISTRATE, JURISDICTION OF, 15 A, 394.

(6) See RES JUDICATA, 13 A. 309.

(7) Bee SET OFF, 15 A. 404.
Jury.

See MISDIRECTION OF JURY, 14 A. 25
Lambardar.

(1) See CO-SHARERS, 14 A. 273 ; 15 A. 137.

(2) See SET OFF, 15 A. 404.
Lambardar and Co sharer.

See CO-SHARERS
See LAMBARDARS.
Landlord and Tenant.

(1) Landholder and tenant Suit for possession of fallemoood of self sown trees
growing on an cccurancy holding Burden of proof. A zemindar claiming
a right to the fallen wood of seli-sowu iraes which had been growing on an
oooupanoy-hoiding must prove soma custom' or contract by which he ia
entitled to take such wood. Tda English law as to ownership under simi-
lar circumstances cannot be applied ; and (fed qt cere} there is no general
rule in India to decide that there is a right in the l**a/ik>rei or a right in
the tenant by general custom to the fallen wood of self-sowmree?. NA-
THAN v. KAML.V KUAR, 13 A. 571 = 11 A.W.N. (1S9J-) 167 ... 361

(2; Landholder and tenant Suit for rent where tJte right terntivt it is disputed
Jurisdi-tionof Civil and Revenue Gourts^-Act XII of 1881 (North- West-
ern Provinces Rent Act], s. 118. M sued I and another for rent in the
Court of the Collector. Toe defendants pleaded payment tc V, who was
nccordingly brought on to the record as a co-defendant under s. 148 of the
North- Western Provinces Rent Act (XII of 1881). The Collector decided
in favour ot V. The plaintiff appealed to the District Judge making all
three persons respondents. The District Judge reversed the decision of
the Collector and orderad the whole costs to paid by V, who thereupon
appealed to the High Court.

Held that the District Judge had no jurisdiction to entertain the appaal so
far as the party brought in under s. 143 was concerned, and, that being
so, had no power to award costs against him. MlBZA ANAND RAM v.
MAUSUMA BEGUM, 13 A. 364 = 11 A.W.N. (1891) 107 ... 331

(3, Act XII ot 1881 (North-Western Provincts RHK Act), s. 189 Act XIV of 1886
(Amending Act XII of 1881), s. 5 "Rent payable ly the tenant" Appeal.
The words "rent payable by the tenant" in s. 189 of the North- Western
Provinces Runt Act (XII of 1681) (as amsuded by Act XIV of 1886) mean
the rate of rent payable by the tenant and not merely the actual amount
of money which is due at any given time by the tenant to his landlord
as rent. RADHA PRASAD SINGH v. PERGASH RAI, 13 A. 193 = 11 A.
W.N. (1891) 83 ... 120

(4) Act XII of 1881 (North-Wtttern Provinces Rent Act>,s. l&9Act XIV of 1386
< Amending Act XII o/188l), s, 5 "Rent payable by the ttnant" Appeal.
The words " rent payable bj the tenant" in s. 189 of the North-Western
Provinces Rent Act (XII of 1881) (as amended by Aot XIV of 1866) mean

1021



GENERAL INDEX.

Landlord and Tenant (Continued). PAGE

the rate of rent payable by the temnt and not merely the actual amount
of money which is due at any given tinn by the tenant to his landlord as
rent.

Where a z^miud-ir sued a tenant for rent of certain alluvial land, the amount
claimed not being above Rs. 100, and the tenant objected that there was
a cns'pm in the village by which rent was paid in case of alluvial Uncl only
on the cukurab'.e portion, and that during some of the years in suit a leva
portion of the land than that for which rent was claimed had beet) colour-
able : Held that in suoh a suit the rate of ront waa in dispute arnl an
appeal would therefore lie. BADHA PRASAD SINGH v. MATHUBA
CHAUBE, 14 A. 50=11 A.W.N. (1891) 219 ... 404

Ad XII of 1891 (N, W.P. Ren'. Act', s. 56 Landholder and tenan'.Lind
holder's Han for rent 'Rent piyible" " Arrears of rent due." Tha
H . paragraph of B 56 of AoiNj. XII of 1881, applies not only wn

itii, iii arrear dua ffona the cultivator to his landlord, bus aiso
wbe^e rent is accruing due in respect of the period during which tho
produce was being grown.

Hence where any one except the landlord wishes to bring to sale the troduoe
of a cultivator, he must, in order to avoid the prohibition contained in
s 56 of Aot No. XII of 1891, tender, to (ha immediate landlord of the
cultivator the amount, if any, for which the landlord might on tho next
ensuing g*le day distrain the produce for arrears of rent. JAGAN NATH

PRASAD v. BHIKA RAM 15 A. 375 = 13 A.W.N. (I89b) 122 ... 959

(6) Landholder and tenant Suit far fjfctmtnt against occupancy tenant ani his

mortgagee Limit ilion Act XV of 1877 Act Xll of 1881, s. 94. The
plainc'ff, a zemindar, sued one Jshri, an occupancy tenant, for ejectment
under s. 93 (b) of lua N.W.L J . Rant Act (XII of 1881), and to that nuit
one C. D, a m .irtgigee of the oooupiooy holding who had ubiainud a
foreclosure cejree agiinat the occupancy tenant, got himself made a party
defoiid.int under s. 112- A. of the Act. Toe pleadings, however, were
not amended and the suit proceeded to appeal before the District Judge.

Bell that under the above circumstances the suit na against O.D., the inter-
vening defendant (who, so far at; the plaintiff was concerned, was a tres-
passer) was of a civil nature and therefore subject to the ordinary rules of
limitation as laid down in the Indian Limitation Act and not to the
special limitation prescribed by s. 94 of Aot XII of 1881. SRI KlSHBK
v. ISHRI, 14 A. 223= 12 A.W.N. (1892) 73 ... 518

(7) Act XTI of 1881, s 36 Suit in ejectment at against trespassers Previous

admission by plaintiff of defendant's tenancy Estoppel. Toe service of a
notice of ejectment under s. 36 of Aot No. XII of l^Sl is, as between tha
person who causes such notice to be served and the person on whom it is
served, a conclusive admission by the former of the existence betwaeu
them of the relationship of landlord and tenant ; and the landlord cm
afterwards sue in the Civil Court to eject the same tenant from the same
land on the ground that he is not a tenant but a mere t n>spas < r
BALDEO SINGH v. IMDAD ALI, 15 A. 189 = 13 A.W.N. (1893) 93 ... 839

(8) Cause of action Suit by zemindar to recovf.rp^ssestio^ af occupancy holding

against occupancy tenant am his alleged transferee in possession Death of
occupancy tenant a'ter filing of suit but before notice ^c^XII of 1881, s.9.
A plaintiff is not entitled to a decree in hie suit unless, by proof or admis-
sion or default of pleading, he shows that when he instituted that suit
he w.is entitled to a decree.

One K.C., a zemindar, sued in a Court of Revenue to recover an occupancy
holding from one B 8., his occupancy tenant, and that tenant's transferee
G.S, to whom, by a transfer which was inoperative under s. 9 of Aot
No. XII of 1881. B S had purported to make over his occupancy holding.
The cooupanuy tenant died after the suit was filed, but before ha had
received notice of it, and the transferee bc'ing in sole possession of the
oocupanoj holding defended the suit. Held under the above circum-
stances that the z 'miner's suit must fail, inasmuch as at the time when
it was filed he was not entitled to immediate possession of the occupancy



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 149 of 155)