Copyright
Chas. A. Stevens & Bros.

The 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

. (page 3 of 155)
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 3 of 155)
Font size
QR-code for this ebook


ants put in a separate statement of defence, except Udai Singh and
Mohan Singh, who put in a joint defence in which they said, with respect
to the property in their possession, that they were in possession of it under
certain special circumstances, while as for the respondent Musammat
Rani, she said that in respect of the village of Barai, which was the
village claimed as against her in the suit, and of which recovery was sought
from her, she had bought it from one Behari, who in his turn had obtained
it at an auction sale of the rights of Ghulam Raza prior to his death. The
Subordinate Judge who tried the case as the Court of first instance went
fully and specifically into the various defences raised by the various de-
fendants, and in the result he decreed the claim of Musammat Mashiat-un-
nissa against all the defendants with one reservation, namely, that "except-
ing the mortgagee rights in the village of Gulba and in the grove, she be put
in possession of the other property. Costs to be borne by all the defendants
with the exception of Bhuri Singh." To give effect to the judgment of
[10] the Sub-Judge on the 12th December 1881, a decree was drawn
up, which, it has been conceded by my brother Mahmood, was a decree
severally as against all the defendants individually &nd in no sense against
them jointly, and which specifically stated the proportions of which they
were severally and separately in possession, as also the amount of costs
each of them was to pay to the plaintiff. Consequently there was no diffi-
culty in the way of the decree-holder doing what explanation II, art. 179
contemplates, viz., making an application for execution against all or any
of the judgment-debtors to the decree. With the exception of Udai Singh
and Mohan Singh, all the judgment-debtors, including the respondent
Musammat Rani, remained content with the decree and made no move to
obtain a modification or reversal of it by appealing, and, in my opinion.it
became a final decree against them according to law. Udai Singh and
Mohan Singh, however, did prefer an appeal to the Court of the Judge. I
have carefully studied their* terms of their memorandum of appeal and there



YII] MASHIAT-UN-NISSA V. RANI 13 All 12

is not to be found in it one single word assailing the decree in respect of any 1889
right or ground common to themselves and all or any of the other defend- JAN. 16.

ants. On the contrary the pleas taken simply assailed the decree in

respect of the specific property alleged to be in the hands of those defend- FULL
ants-appellants as to which they had set up the bar of limitation and BENCH.

other special grounds of defence. Consequently in the Judge's Court the

appeal, and the only appeal preferred, was by Mohan Singh and Udai Singh J
against Musammat Mashiat-un-nissa, and this was the appeal the Judge
proceeded to hear and heard. For the reasons given in his judgment he ^ A.
decided that the plaintiff as against Mohan Singh and Udai Singh, could ( I89 )
not maintain her suit in the shape in which she had brought it, and con-
sequently he allowed the appeal and reversed the judgment of the Subor-
dinate Judge in respect of those two defendants and dismissed her suit as
to them. She in due course of law preferred a second appeal to this
Court which came before Mr. Justice Olofield and my brother Tyrrell ;
and they, having considered the judgment of the Judge, were of opinion
that it was necessary that certain issues should be tried by the Court
[11] below, and accordingly remanded them under s. 566. The result of
the findings on remand was that Mr. Justice Oldfield and my brother
Tyrrell practically restored the decision of the first Court in favour of the
plaintiff as to those two defendants. It will thus be seen that from the
12th December 1881, there had been standing as against all the defendants
with the exception of Udai Singh and Mohan Singh, an unappealed and
executable decree in the hands of Musammat Mashiat-un-nissa, the
decree-holder, which, I may remark in passing, it has been conceded
there was nothing to prevent her from executing against any of the
judgment-debtors with the exception of Udai Singh and Mohan Singh.
It is this decree, and not the decree of this Court in appeal to which
those two particular defendants alone were parties, that is, the subject-
matter of the execution proceedings now sought to be taken. Musam-
mat Mashiat-uc-nissa has now made an application for execution
of that decree of 1881, as against Musammat Eani the respondent
here, and to this Musammat Kani raises objections and says, " upon the
face of it, the decree Is barred by limitation, because the decree is dated
the 12th December 1881, and here are-you making your first application
to enforce it in the year 1886." To this the decree-holder responds : " I
am all right, because there has been an appeal, and therefore I am saved
by the terms of art. 179, column 3, para. 2, of the Limitation Act. " In
my opinion it was the duty of the Court which was asked by the decree-
holder to execute the decree to see whether there had been an appeal, not
by one or two defendants simply assailing a part of the decree specifically
and separately affecting them, but an appeal which, though preferred by
only two of the defendants, assailed a decree which disposed of the iuit
on grounds common to themselves and the rest of the defendants. The
decree which was passed on the 12th December 1881, did not proceed
on grounds common to the defendants ; on the contrary, as I have
already pointed out, it was several and specific as to each of them
and distinguished the proportion of the property deliverable. In
other words there were several separate decrees included in one. In so
far as it affected the respondent Musammat Eani there never was any
appeal, acd it seems to me the learned Judge could not have [12]
taken any other view than be did, namely, that there had been no
appeal. I do think that, for the purpose of dealing with such a decree
as that of a Civil Court of a Suboidmate Judge acting under the Civil



13 All, 13 INDIAN DECISIONS, NEW SERIES

1889 Procedure Code, wa are entitled to look to the Civil Procedure Code for

JAN. 16 information as to what the words " appeal" and " decree " mean, and I

am not aware that there is any rule of interpretation or of law that

FULL should prevant us from doing so. The principle upon which I have

BENCH, founded my view of this case has been specifically stated, no doubt

before the present Limitation Act; came into force, by Sir Richard Couch

in J. P. Wise v. Rajnarain Ohuckerbulty (1). The same principle has

(F.B.)= also been recognised by Mr. Justice Ponfcifex in Mullick Ahmed Zumma

3 A.W.N. y Muhammad Syad (2). It seems to me to be a reasonable principle,

(1890) 207, an( j ft j s <jjfg cu it to understand why one judgment-debtor whose liability

is independent of and apart from that of another judgment-debtor under

the same decree, under circumstances such as are disclosed in the present

case, should have the period of limitation for execution of the decree as

against him almost, if not quite, indefinitely postponed because the other

judgment-debtor, in respect of matters alien to him and his liability,

prefers an appeal. I entirely agree with what my brother Tyrrell haa

said, and that the appeal ought to be dismissed with costs.

EDGE, 0. J. The facts of the case have been very clearly stated by
my brother Straight in his judgment just delivered, and I may say at once
that I agree with the conclusions at which he has arrived. There is no
doubt considerable difficulty in determining what cl. (2), art. 179, sob.. II
of the Limitation Act, XV of 1877, really means. On the one hand it is
not an unreasonable construction which has been put upon that clause by
my brothers Brodhurst and Mahmood, but it appears to me that to put that
construction upon it would be to extend the period of limitation as against
persons who were in no way concerned with an appeal, and whose rights
under a decree could not be affected by an appeal to which they were
not parties, or whose liabilities under a decree could neither be limited
or extended or varied by an appeal to which they were not [13]
parties unless such appeal came within the scope of s. 544 of the
Code of Civil Procedure. I cannot see why, in a case such as the present,
when it was perfectly competent to the appellant before us to execute the
decree of the first Court against those defendants who had not appealed,
we should extend the period of limitation by holding the clause I have
referred to to mean an appeal by any party to the suit. I think myself
that an indication of what was the intention of the persons who drafted
the clause in question may be found by examining explanation I to
art. 179. It is quite true, as pointed out by my brother Mahmood in
the course of the argument, that explanation I does not directly refer to
clause (2) ; but still in the explanation we find it explained that when a
decree is a several decree against different persons, the running of
limitation will not be suspended by reason only of an application being
made for execution against one of the several judgment-debtors. The
case to which my brother Straight referred, the Full Bench case of
J.P. Wise v. Rajnarain Chuckerbutty (1), is, I think, consistent with sound
common sense. It is true that the case was decided under Act XIV of
1859, and not under the Limitation Act in question here. I infer from
the judgment which was delivered by Pontifex and McDonell, JJ., in Mullick
Ahmed Zumma v. Muhammad Syad (2) that they took the same view of
the law which the majority of this Banch now take, notwithstanding the
cases which have been cited to the contrary. I think ol. 2, art. 179,
applies only to those cases in which the parties to the execution proceedings

(1) 10W.K. 30. (2)6C, 194=6 0,L,B. 573.



YII]



MASHIAT-UN-NISSA V. RANI



13 All, 15



were parbies to the proceedings in appeal, or the class of cases to which
s. 544 of the Civil Procedure Code applies. On the facts of the case stated
by my brother Straight it was not a case in which s. 544 of the Code of
Civil Procedure would apply, as there was nothing common between the
case of the defendants who appealed from the original decree and the other
defendants. The defendants who appealed wsre fighting their own battle
which did not concern the consideration of the case of the other defendants
in the suit. I am of opinion that the appeal here should be dismissed with
costs. As the [14] majority of the Court are of this opinion, the appeal is
dismissed with costs.

BRODHUEST, J. Numerous rulings of this Court and of the Calcutta
High Court have been referred to by the learned pleader for the appellant
in support of his pleas. The rulings of this Court include judgments
delivered even by a majority of this Court as now constituted. In Nur-ul-
Hasan v. Muhammad Hasan (l) Mr. Justice Oldfield in the course of his
judgment remarked " Nur-ul-Hasan, the purchaser of the property, has
now preferred this appeal on the ground that the application for execution
is barred, having been filed more than three years after the passing of the
decree. In my opinion the appeal fails because art. 179, cl. (2), being
the limitation law applicable, the time should run from the date of
the decree of the appellate Court. Ib is contended that that law is in-
applicable because the appellant did not appeal from the original
decree, and so far as he is concerned the respondents ought to have
executed the decree irrespectively of the fact that an appeal had
been preferred by some of the defendants. On this point certain decisions
have been brought to our notice, viz., Hur Pershad Roy v. Enayet
Hussain, Sangram Singh v. Bujharat Singh. I think those cases are
distinguishable from the present case, as in this csse, although only one
set of defendants appealed against the original decree, the grounds of such
appeal imperilled the rights of the plaintiffs-respondents which they had
obtained by a decree against all the defendants. Had the appeal of the
second set of pre-emptors succeeded, the property decreed to the respon-
dents would have passed away from them, and there would have been no
decree for them to execute against the present appellant. I think
this circumstance marks the distinction between the present case and
the cases cited ; but for my own part I think the terms of art. 179,
cl. (2), are so clear and distinct that they scarcely admit of any such
distinction being drawn. Under that law the period for the execu-
tion of a decree will begin to run, where there has been an appoal,
from the date of the final decree or order of the appellate Court. Ib
[15] contains nothing as to whether the appeal shall have been made by
all the parties, or by one, or how far the appellate Court's order may or
may not affect the rights of parties who have not appealed. It seems to
me to give a plain and clear rule that in all cases where there has been an
appeal the date of the final decision of the appellate Court shall be the
date from which the time for execution will begin to run. In support of
the view I am taking that in the present case limitation should run from
the date of the appellate Court's decree, I may refer to Mullick Ahmed
Zumma v. Muhammad Syad and Ram ~La.ll v. Jagannath." And my brother
Mahmood observed : " I have arrived at exactly the same conclusion as
my learned brother, but I wish to say that the ground of distinction
which he has drawn between the present case and those referred to is to



1889

JAN. 16.

FULL
BENCH.

13 A. 1

(F.B.)=
10 &.W.N.
(1890) 207.



AVI



(1) 8 A. 573.

9



13 All. 16



INDIAN DECISIONS, NEW SERIES



[Vol.



1889 my mind very clear. The present case is not necessarily inconsistent with
JAN. 16. what was ruled there. In the second clause of art. 179 there are no words

limiting or qualifying the application of those words to decrees in which

FULL only one or more of the parties have appealed ; the clause as framed must
BENCH. ^ 6 ^^ e ^ u P n aa intended to apply without any exceptions to decrees
from which an appeal has been lodged by any of the parties to the original
13 A. 1 proceedings.

(P.B.)= These rulings have not been refuted by the judgment of any Bench of

10 A.W.N. a High Court that has been reported or that I have had an opportunity of

(1890) 207. considering. I concur in these rulings, and I would therefore allow the

appeal and remand the case to the lower appellate Court, under s. 562 of

the Civil Procedure Code, for disposal of the other points raised before it.

Costs should abide the result.

TYRRELL, J. In my opinion the limitation applicable is that of art. 179
ol.(i) sob. ii, of the Limitation Act (XV of 1877) and time against the decree-
holder began to run from the date of the decree of the Subordinate Judge of
Moradabad, which is the only decree passed in the cause between the decree-
holder and the respondent, a decree which had become final long before the
institution of the [16] present proceedings in execution. As there was no
appeal in the case between the parties to those proceedings, I am of opinion
that the Limitation of art. 179, clause (2), is inapplicable to this case. Seve-
ral cases were cited on behalf of the appellant in which art. 179, ol. (2), was
applied against judgment-debtors, who had not been parties to an appeal that
had been made between other parties to the case ; but most, if not all of these,
were cases which either fell within the scope of s. 544 of the Civil Proce-
dure Code now in force or would be amenable to the principle explained
by Mr. Justice Oldfield in Nur-ul-Hasan v. Muhammad Hasan (1), that is
to say, they were cases in which the whole decree was appealed against,
and the appellate Court dealt with the decree as a whole upon questions
affecting all the parties to the decree, or cases in which the integrity of
the decree as affecting the parties in the cause was imperilled. But the
case before us, as well as the case of Sangram Singh v. Bujharat
Singh (2) seems to me to be of an essentially different character. In
both these cases the decree though one in form was in effect a decree
awarding several reliefs having nothing in common as touching the indi-
viduals thereby severally affected. I think the distinction I have endea-
voured to draw between the two classes of cases above referred to is
justified, by way of analogy at least, by the rules contained in the expla-
nation appended to ol. 4 of art. 179 and by the principles laid down in
many cases, among which I may mention Sreenath Majoomdar v.
Brojonath Majoomdar (3) and Mullick Ahmed Zumma v. Muhammad
Syad (4). Accordingly I am of opinion that the rule followed by my brother
Straight and myself in Sangram Singh v. Bujharat Singh (2) is applicable
to the conditions of the present case, and therefore that the appeal of the
decree-holder ought to be dismissed with costs.

Appeal dismissed.



(1) 8 A. 573.



(2) 4 A. 36.
(4) 6 C. 194 =



= 6C.L.R. 573.



(3) 13 W,R. 309.



10



YII] MAHESH RAI V. CHANDAR RAI 13 All. 18

13 A, 17 (F.B.) = 10 A W.N. (1890) 233. 1339

[17] FULL BENCH. DEO. 5,

Before Sir John Edge, Kt., Chief Justice, Mr, Justice Straight, FULL

Mr. Justice Tyrrell, Mr. Justice Brodhurst and Mr. Justice Mahmood. BENCH

MAHESH EAI AND OTHERS (Defendants) v. CSANDAR RAI AND (F ' J

OTHERS (Plaintiffs.)* lOAWN

[5th December 1889.] . 1890 ' 2 ' 3S '

Jurisdiction Civil and Revenue Courts Suit for declaration that tenants are shiJcmis
and not occupancy tenants, and that thiir holdings are plaintiff's sir land Act XII
of 1981 (N.W.P. Rent Act), ss. 10,95 (a) ActXIX of 1873 (N.W.P, Land Revenue
Act), s. 241 Act I of 1877 (Specific Relief Act), s. 42.

Tha effect of s. 95 (a) and s. 10 of the North- Western Provinces Rent Act
(XII of 1881) is to deprive the Civil Courts of jurisdiction to take cognizance of
any suit the object of which is to declare, as between the zemindar 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 declara-
tion that certain entries of the defendants in the revenue records as occupancy
tenants, and certain orders of the Revenue Courts maintaining those entries, be
set aside, and that the defendants are shikmis and not occupancy tenants, and
that the land in question is the plaintiff's sir land. Such a suit cannot be
brought within the Civil Court's jurisdiction by dropping all the reliefs claimed
except the last mentioned declaration, that being merely of importance as in-
cidental to the previous ones and as a roundabout mode obtaining a declara-
tion that the defendants are not the plaintiff's occupancy tenants.

Per Edge, C.J., and Mahmood, J. Whether the last-mentioned prayer ig one
which could be brought under s, 42 of the Specific Relief Act, qucere.

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 purpose
of correcting the jamabandi 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 Pro-
vinces Land Revenue Act (XIX of 1873).

[P., 15 A. 115 (116); R., 15 A. 337 (339i ; 18 A. 270 (273) = 16 A.W.N, 59; 20 A. 241
(242) = 18 A. W.N. 29 ; D., 12 A. W.N. 46.]

THIS suit was instituted under the following circumstances. The
plaintiffs were zauaindars and the defendants were tenants of certain
villages in taluqa Unjiar in the district of Ghazipur. The holding occupi-
ed by the defendants was 17 bighas in extent, and at the settlement of
1840 was recorded as the sir land of one Chattar Rai, the ancestor and
predecessor in title of the plaintiffs Chandar [18] Rai and Siparas Rai.
The names of Chandar Rai and Siparas Rai, and of their co-sharers Hira,
Jaimangal, Bhairo, Rambandan and Ram Prasad were recorded in the
jamabandi, from 1857 to 1862, in respect of the 17 bighas, which were
always shown as sir land. In 1862 a change was made, the defendants
being then recorded in the jamabandi as occupancy tenants in respect of
the 17 bighas, and from that time the land was no longer described as
sir. It was entered as "share of Cbandar Rai, Siparas Rai, Kali Charan
Rai, Kauleshar Rai, kashtkars." In or about the year 1288 fasli (1881
A.D.) at or shortly before the revision of the settlement of the district,
the plaintiffs became aware of the nature of the entry in the jamabandi,
and they filed an objection in the Settlement Department to the effect
that the land was their sir land, and that the defendants were in

* Second Appeal, No. 939 of 1887, from a decree of G. J. Nicholls, Esq., District
Judge of Ghazipur, dated the 15th April 1887, reversing a decree of Pandit Kashi
Narain, Subordinate Judge of Ghazipur, dated the 29th April 1886.

11



13 All. 19 INDIAN DECISIONS, NEW SERIES [Yol

1889 possession as their shikmi sub-tenants, and nofc as occupancy tenants, and

DEC. 5. that the entry of the defendants' names as occupancy tenants had

been brought about fraudulently and by collusion with the patwari.

FULL The objection came before the Assistant Settlement Officer, whose order

BENCH, thus described the issue between the parties: "The plaintiffs' claim is

that the sir belongs to them, and that the defendants are shikmi sub-

13 A. li tenants, and that the plaintiffs receive rent at the rate of Rs. 5. The

defendants plead that 17 bighas in six mauzas are held by them as prin-

10 A.W.N. c j pa i t enan ts at a rent of Rs. 17-13-0, at the rate of Re. 1 per bigha ; that

(1890) 238. the groves Nos. 295, ill and 112 are within their cultivatory holding,

and that Nos. 295, &c,, have been planted by their ancestors.

The Assistant Settlement Officer decided this issue in favour of the
plaintiffs, and he held that the 17 bighas were their sir land, of which the
defendants were in possession as shikmis only, and he directed that the
jamabandi should be amendeS accordingly. The defendants appealed
from this decision to the Settlement Officer, who, by an order dated the
13th August 1884, reversed the Assistant Settlement Officer's order, and
held that the defendants were occupancy tenants of the 17 bighas, which
were not sir land. On further appeal, this decision was affirmed on the
6th November 1884 by the Commissioner of Benares, and on the 27th
March 1885 by the Board of Revenue.

[19] On the 24th November 1885, the plaintiff institued the pre-
sent suit in the Court of the Subordinate Judge of Ghazipur. The plaint
after reciting the orders passed by the Revenue Courts, continued :

" As this finding of Revenue Department clearly affects our rights
injuriously, "and as there is no other means of getting relief except by
instituting a suit in Court, therefore the plaintiffs pray judgment aa
follows :

" That a declaratory decree bs passed in plaintiffs' favour and against
the defendants in respect of 17 bighas 1 biswa 13 dhurs of sir land as per
numbers given below, situated in taluqa Unjiar, pargana Garh, valued at
Rs. 2,135-0-0, and it be declared that the land claimed is the plaintiffs'
sir ; that the defendants' allegation and adverse possession set up by them
in respect of the said land be held as null and void, and that the whole of
the Court costs be allowed.

" That the judgment of the Revenue Court, so far as it is injurious
to the plaintiffs' rights, be declared as set side and of no effect.

"That it also should be decided that the defendants' possession is as
sub-tenants (asami shikmis) under a settlement for a short period, which
in no way affects our sir land.

" The cause of action arose on the 13th August, 1884, when the
defendants were held to be occupancy tenants.

The Court of first instance (Subordinate Judge of Ghazipur)
dismissed the suit. The lower Appellate Court (District Judge of
Ghazipur)set aside the first Court's decree and allowed the claim.

The defendants appealed to the High Court. Their first ground of
appeal (repeating the contentions which they had raised in both the
lower Courts) was :

" That the tenancy of the appellants in respect of the land in suit
belonging to the plaintiffs-respondents being admitted, it was for the
Revenue Courts to determine the nature of such tenure, and the suit is
not cognizable by the Civil Courts."

[20] Mr. G. H. Hill and Pandit Sundar Lai for the appellants.

12



YII] MAHESH RAI V. CHANDAR RAI 18 All. 21



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 3 of 155)