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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 52 of 155)
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and subsequent mortgagees, so far as redemption, foreclosure and sale are
concerned, were in British India before Act IV of 1882 came into force,
what Chapter IV of that Act has defined and declared such rights,
liabilities and reliefs to be."


The appeal will stand dismissed with costs and the decree below will
be affirmed.

Appeal dismissed.

(1) L.R. 5 App. Gas. 214.




13 All. 534

13 A. 533 = 11 A.W.N (1891)172

Before Mr. Justice Mahmood.


[18th March, 1891.]

Small Cause Court Judgment of Small Gauss Court, what should be contained

Rtv ision Civil Procedure Code, ss. 203, 56-2, 622, 647 /ci IK of 1887 (Small
Caus* Courts Act),s. 25,

Section 203 of tha Coda of Civil Procedure does not relieve the Judge of a
Small Cause Court from the necessity of giving some indication in bis judgment
that he has understood tbe facts of the case in which such judgment is given.

Where a judgment in a Small Cause Court suit stated merely that the suit
was dismissed for reasons given in the Judge's decision in another suit and tha
judgment in the suit so referred to was in the following words : " Claim for
recovery of money lent with interest. Reply. Defendant pleads that he has paid
the debt to plaintiff. Issue. Has the defendant paid the debt claimed to the
plaintiff? Finding. It is not proved that the defendant paid the debt to the
plaintiff. Ordered. That the claim is decreed with costs " held that this was
in fact, no judgment at all, and tbe case roust be remanded for re trial on the
merits under the analogy of s. 562 of tbe Code of Civil Procedure, read with
B. 647 ib.

[Diss.. 12 A.W.N. 160 ; N P., 6 C.L.J. 527 (530) ; F ,'57 P.R. 1901 ; R., 18 Ind.'Cas.
216 = 109 P.L R. 1913.]

THE facts of this case sufficiently appear from tbe judgment of
Mahmood, J.

Munshi Jwala Prasad, for the applicant.
Munshi Madho Prasad, for the opposite parties.


MAHMOOD, J. This is an application under s. 25 of the Provincial
Small Cause Courts Act (IX of 1887), and also under s. 622 of the Code of
Civil Procedure (Act XIV of 1882), invoking my interference as a Judge
sitting in the revisional jurisdiction of this Court in ragard to such matters.
Mr. Jwala Prasad, who appears for the petitioner, and Mr. Madho Prasad,
who holds the brief of Mr. Eashi Prasad, for the opposite parties, are
agreed that these two sections apply and that the determination of the
case depends upon their effect.

The facts of the case are that one Malik Kahmat, who is the
petitioner before me, pawned certain jewels for the amount of Kg. 100
[534] to Sheo Prasad, Seopal and Sukhnandan on tbe 20th August
1887, and it was agreed that whatever sum of money may be repaid out
of the debt the pawned property should, to the extent of such payment, be
released from the pawn.

Now the plaintiff states that Rs. 40 out of the amount thus due under
the pawn of the 20th August 1887, was paid by him, and that to the ex-
tent of the value of such payment some of the pawned jewels were released
some time about the 27th April 1888, and thereafter another payment of
Rs. 67-8 was made some time about the 22nd April 1889. and that upon
such payment having been made the defendants had promised to return
the resc of the pawned jewels, but that they did not keep their word and
the jewels were not therefore returned.

* Miscellaneous application No. 52 of 1890, for revision of a judgment, dated tbe
19th April 1890, of Babu Mrittonjoy Mukerji, Judge of the Court of Small Causes of




13 \. 533 =
11 A.W.N.
(1891) 171.

A VII 43


13 All. 535


1891 This incident is stated to be the cause of action for the present suit.

MARCH 18, The suit was met by the plea that the aforesaid sum .of Rg. 67-8 was
never given to the defendants, pawnees, and that therefore the suit could
EEVI- not prevail.

SIGNAL During the pendency of the cause there was some other dispute

CiVIL between the same parties which was pending in the Small Cause Court, in

which the defendant to this cause was the plaintiff and the plaintiffs in this

13 A. 583= cause were the defendants. The suit was tried by the Small Cause Court
114 W.N. Judge of Benares, and that suit was decided on the 19bh April 1890, being
(1891) 172. Suit No. 1228 of 1889 and a copy of the judgment in that cause is upon
the record.

This being so, the entire judgment in this case passed by the learned
Small Court Judge consists of the following words :

" For the reasons given in my decision in 1228, decided to-day, the
plaintiff is not entitled to recover the jewels without paying the debt due
to the defendant. Order. Suit dismissed with costs."

Now it was because of the brief manner in which this judgment was
worded that I was anxious to see the record of the case to which it referred.
The record was sent for by my order of the 20l;h February 1891, in order
to enable me to understand what [535] reasons were given in the case to
which reference was thus made by the learned Judge of the Small Cause

The record has come up and I wish to quote the whole of the judg-
ment in order to show how little there is anything of the expected reasons
in the case. The judgment runs as follows :

Claim for recovery of money lent with interest. Reply. Defendant
pleads that he has paid the debt to the plaintiff. Issue. Has the defendant
paid the debt claimed to the plaintiffs ? Finding. It is not; proved that
the defendant paid the debt to the plaintiff. Ordered. That the claim is
decreed with costs."

This was the order made by Mr. Mrittonjoy Mukerii, exercising the
powera of a Small Cause Court Judge, under the jurisdiction which he
possessed under the Provincial Small Cause Courts Act (IX of 1887), and
this is the kind of judgment in which he, in the exercise of the powers
thus conferred upon him, thought fib to exercise them.

It has been to me a matter frequently for consideration on the Bench
in this Court whether the Small Cause Court powers, as implied and
required by the Small Cause Courts Act (IX of 1887), are such as should
be entrusted to officers who are nob fully cognizant of the dignity which
the finality of a Small Cause Court decree implies.

In the present case I have no doubt that Mr. Jwala Prasad, for the
petitioner, is perfectly right in contending that there is absolutely no
guarantee upon the record itself that the learned Judge, Mr. Mribtonjoy
Mukerji, who presided in the Small Cause Court at Banares, ever understood
the case at all or the facts which would have a bearing upon the right
decision of the case. And I think the learned pleader was perfectly within
his rights when he asked me, under the peculiar circumatances of the case,
to rule that the judgment, or rather, the sO'Called judgment, in this case
is no judgment at all, because it indicates neither the appreciation of the
facts of the case nor of the law which is applicable to them.

Mr. Madho Prasad, who holds the brief of Mr. Kashi Prasad, for
the opposite party, has called my attention to s. 203 of the Code [536] of
Civil Procedure in order to sustain the only point which he could urge on
behalf of his clients, namely, that the Judge of a Small Cause Court



is not bound to record judgments in the same fashion and with the same 1891
fullness as Judges in other Civil Courts, I wish to say again that MARCH 18.
Mr. Madho Prasad was perfectly right in thinking that the first part of the
section is fche only one which could help the case of his clients, because ElVi-
upon the facts the learned pleader himself feU tba*; he could not sustain
the judgment of the lower Court.

I wish to say now what I have never ssid before, that the investiture
of the Small Cause Court powers in Judge?, which does occur and is 131.333 =
frequently exercised in the direction of the policy upon which the Provin- n A, W.N,
cial Small Cause Courts Act (IX of 1887) is based and the policy upon (1891) 172.
which the enactment antecedent to it, Act XI of 1865 was based, may be
an exercise of power resulting in disastrous results, keeping in view the
finality of the jurisdiction which such Courts possess. In the present
case I am afraid such has been the result, because, even keeping in view the
provisions of s. 203 of the Code of Civil Procedure, and even keeping in
view all that Mr. Madho Prasad in his argument has addressed to me in
regard to the matter, I have no doubt that the learned Judge of the lower
Court should have dealt with the case in the manner required by law,
and not in a manner which gives neither the points nor, to me, any
guarantee that he sufficiently understood the cause.

The exact extent of the revisional powers contained in s, 25 of the
Provincial Small Cause Courts Act (IX of 1887), has been the subject of
consideration in a recent case decided by the Full Bench of this Court in
Muhammad Bakar 9. Bahal Singh (1).

Similarly the powers of this Court under s. 622 of the Code of Civil
Procedure have been the subject of consideration by their Lordships of
the Privy Council in the case of Muhammad Yusuf Khan v. Abdul Rahman
Khan (2).

The effect; of these rulings has been considered by me in some earlier
cases, to which I need not refer in detail. What I hold now [537] is.
that under the circumstances of this particular case the learned Judge of
the Small Cause Court was entirely wrong in thinking that his judgment
in the case to which he refers, namely, No. 1228, contained any reasons
or the decision of this cause, I have therefore a case which has been
decided without any reasons, and s. 203 of the Code of Civil Procedure
will not enable even a Small Cause Court Judge to dispose of cases in this
manner, or to think that he has done justice to the parties when he has
written a judgment such as the one which is now before me.

I therefore regret that, acting under tbe powers which this Court
possesses as a Court of revision, the only order which I feel called upon
to make is that the application be allowed, tbe judgment of Mr. Mrittonjoy
Mukerji, Judge of the Small Cause Court of Benares, dated the 19th April
1890, be set aside as no judgment at all, and that that Court be called
upon to pass the proper order in tbe case according to the requirements of
the law. Acting under the anology of s. 562 read with s. 647 of the Code
of Civil Procedure, I set aside the decree and remand the oise for trial
upon the merits with reference to the order which I have made. Costs
will abide the result.

U )13 A. 277, (2) 16 G. 749,



13 A. 337 = 11 A W.N. (1891) 196.

APPEL- Before Sir John Edge, Kt. t Chief Justice, Mr, Justice Straight,

Mr. Justice Tyrrell, and Mr. Justice Mahmood.



KANDU (Plaintiff)* [18th March, 1891.]
11 A.W.N.

(1891) 196 Possession Ejectment- Suit in ejectment en a possessory title Act 1 of 1877 (Specific
Belief Act), s. 9.

P(r EDGE, J., STRAIGHT and TYRRELL, JJ,, (MAHMOOD, J., dissen-

Section 9 of the Specific Relief Act is intended to provide a special summary
remedy for a person who, being, whatever bis title, in pcs-session of jmmoveable
property, is ousted therefrom.

[538] That section does not debar a person who has been ousted by a trespas-
ser from the possession of immoveable property to which be has merely a pos-
sessory title, from bringing a suit in ejectment on bis possessory title after the
lapse of six months from the date of his dispossession. Davison v. Gint (1) ;
Asher v. Whitlock (2) ; Wise v. Ameer -un-nii si Khatoon (3>, Pemraj Bhavaniram
v. Narayan Shiva> am Khisti i4\,Krishnarav Tashvant v. Vasuiev Apaji Ghotikar
(5) and Muhammad Yu&ufv. Sukh Nath (6) referred to,


A person who issuing upon a merely possessory title to recover possession of
immoveable property against a person who has ousted him must bring his suit,
if *t all. under 3. 9 of Act I of 1877, and therefore within six months from the
date of his dispossession.

[R., 29 A. 52 (59) = 3 A.L.J. 775 = A.W.N. (1906) 264 : 29 B. 213 (219! = 7 Bom. L.B.
12 ; 7 O.P.L.R. 3 (4) ; 12 C.P.L.R. 59 (62) ; U.B.R. (1897-1901) 270 ; 78 P. R.
1902 = m P.L R. 1902 ; U.B.R. (1892-1896), Vol. II, 619.]

THE facts of this case are fully stated in the judgments of Edge. 0. J,,
and Mahmood, J.

Mr. Abdul Baoof and Mr. Abdul Jalil, for the appellants.

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


MAHMOOD, J. I regret that in consequence of the course which this
litigation has taken, ib is necessary for me to deliver a longer judgment
than I should otherwise have considered necessary.

The suit is one of small pecuniary valuation, hut the points which
arise in it are important and it can scarcely be doubted that it was in view
of this circumstance that the learned Chief Justice and myself by our order
of the 22nd May 1891, referred the case to a Bench consisting of five
Judges. The case has accordingly been heard by a Bench consisting of all
the members of this Court,

The facts of the case are to be considered with reference to the plead-
ings of the parties, and I shall therefore begin with those pleadings,
because without fully appreciating them it is scarcely possible to appreciate
the points of law to which the circumstances of this case have given birth.

* Second Appeal No. 879 of 1898, from a decree of G. J. Niobolls, E?q , District
Judge of Ghazipur, dated the 17th March 1888, reversing a decree of Munsbi Matadin,
Munsif of Ballia. dated the 2nd September 1887.

(1) 26 L.J Exch. 122. (2) L.R. 1 Q.B. 1. (3) 7 I. A. 73.

(4) 6 B. 215. (5) 8 B. 37i, (6) 7 A.W.N. (1867) 55.




13 All. 540

Now the first matter to consider is the exact effect of the allegations
in the plaintiff's plainfc, and to deal with those allegations [539] with
reference to the property now in suit. The property in suit, as also the
reliefs sought by the plaintiff, are best represented by the plaint itself.

The land in suit measures I biswa 7i dhurs in plot No. 46 in the
abadi area of mauza Sagarpini, and of this area the possession is sought
by the plaintiff with a prayer that tha defendants should be ejected from
such land.

Upon the land thus in suit, and this being the solitary area to which
the litigation relates, it was alleged in tha plaint that; there stood a
mosque built by the defendanta some time about the 21st Ootober 1881,
and in that plaint it is also alleged that such building of the mosque
took place without the consent of the plaintiff and in collusion with the
zemindars of the village. This appears from the statement contained in
the third paragraph of the plainfc. Upon this allegation the relief sought in
clause (1) of the- prayers in the plaint for relief was that the mosque
should be demolished, as the defendants had no right in the land upon
which they had built the mosque.

The second relief sought by the plaintiff was the recovery of a sum,
approximately Rs. 81-8, as damages mentioned in clause (6) of the prayer
for relief in the plaint.

The third relief sought in the plaint was that costs of the suit,
together with interest, should be awarded to the plaintiff.

I have dwelt upon the exact scope of the prayers in the plaint in this
detailed manner, because I think that it is important to realize the scope
of the action.

For similar reasons I consider it necessary to state the pleas upon
which the action was resisted. It was resisted mainly upon the following
grounds :

(1) That the land in suit did not belong to the zemindars of the
village under whom the plaintiff claimed, but formed part of the premises
belonging to the mosque in which the defendants were interested according
to law.

[540] (2) That the plaintiff could therefore have no title to the land,
at least no such title to the land as could be derived from the zemindars.

(3) That the defendants' possession of the land in suit had been older
than the prescriptive period of 12 years, and that therefore neither the
plaintiff nor the zemindars could have any title to the land and that the
mosque sought to be demolished was built so long ago as 1873. This last
plea was raised in para. 3 of the written statement of the defendants.

(4) That the lease under which the plaintiff claimed could not include
the land in suit, because no such lease was ever given by the zemindars,
and this statement occurs in para. 2 of the defendants' written statement.

Upon this state of the pleadings the Munsif, Munshi Matadin, framed
issues represented in his judgment of the 2nd September 1887, and I refer
to his judgment to render the facts of the case intelligible.

Upon the pleadings as already stated by me it is clear that it rested
upon the plaintiff who sued to oust the defendants to prove his title for
seeking such ouster, coupled as that prayer is with the demolition of the
mosque, because, to put the matter upon the broad juristic sense, it is for
him, who seeks a change to show why the change he seeks should be
made. This is not only a rule of law, but also of every ratiocinative
science in connection with such problems. It therefore lay upon the
plaintiff to prove the reason why the defendants should be ousted ; why



13 All 541






ISA. 537 =
11 A.W.N.
(1891) 196,

the mosque and other buildings sought to be demolished should be demo*
lished ; why the damages claimed should be awarded. The deaire of the
plaintiff was to disturb the state of things as it existed on the 21st; March
1887, when this suit was instituted, and of tha defendants that it should
remain undisturbed. The suit must; ba defeated unless the plaintiff shows
such a cause as would require a Oourt of Justice at the date of the suit
to disturb the state of things as they were on that; date.

I am afraid I have spoken too abstractly in enunciating this doctrine
of jurisprudence, and it; will therefore be easier for me to [541] explain
the application of that doctrine to the circumstances of this case by making
reference to concrete facts as they have been found in the case itself.

The first question in the case is, whether Ajudhia, the plaintiff -res-
pondent, ever had a title to the land of which ha claims posssesioo or any
right to seek the other reliefs by demolishing the mosque and recovering
damages which he sought in the plaint.

The question then is, what is his title? The title asserted by him is
not one of ownership, but an alleged lease from the owners, whom he
asserts to be in collusion with the defendants. Where is the lease ? It
has been found that there is no written lease, and therefore, naturally
enough, it is not upon the record. His title therefore necessarily rests
upon oral evidence.

I seriously doubt whether, as a simple question of law, a lease of
property such as the one in dispute in this case can, under the principles
enunciated by the Transfer of Property Act, ba orally granted, unless it be
for agricultural purposes. But 1 let this matter pass.

I am aware that it is not the duty of this Oourt as a Court of second
appeal to examine the weight of evidence whether oral or documentary in
cases which come up before us in second appeal under s. 584 of the Code
of Civil Procedure. I am also aware that this principle has been recognised,
not only by Her Majesty's High Courts of Judicature in India but also
by their Lordships of th'e Privy Council. But I think also that it is the
duty of the Oourt when dealing with second apoeals and in considering
conclusions at which the lower appellate Courts have arrived to consider
whether or not those conclusions have been arrived at in due compliance
with the rules of law governing the admissibility of evidence, and which
involve questions of the burden of proof, especially in cases in which a
title is asserted by a plaintiff who seeks to oust a defendant and that
defendant denies the title and asserts that the plaintiff has no title at all.
It is with reference to this view of the law that I wish to quote a few
passages from the judgment of the Munsif, Munshi Matadin, [542] as to
his conclusions upon the evidence which he had before him, upon the
pleadings of the parties and upon the issues which he framed. After
having framed those issues, which are clear enough in the judgment of
the Munsif himself, he went on to say :

" There is no sufficient proof for the plaintiff that he held possession
all along of the land in dispute under an arrangement by the zemindar,
and that during the period alleged by him the defendants built the
mosque, &o."

Again he says : "The evidence of the defendants' witnesses proves
to the Court's satisfaction that the mosque and shed, &c., in dispute are old
and have existed for more than 12 years, and that the land in dispute is
possessed by the defendants themselves."

With reference to the locality, after stating that he ha 1 deputed two




13 All. 544

amins to prepare the map of the locality, he goes on to say as to the
plaintiff's allegation regarding possession :

"On the other hand, it appears from the map prepared by the Court
amins that to the south of the mosque.there are the platform for keeping
tazias and houses belonging to the defendants and others, and then there
is tbe manufactory of the plaintiff, and that the mosque, &o., in dispute
.are exactly in front of the defendants' platform for keeping tazias towards
the north. It can by no means be supposed that at this place the plain-
tiff held possession of any portion of land. So far as this Court can con-
sider, tbe present suit of the plaintiff appears to be entirely malicious and
cannot justly be allowed to prevail."

Upon this finding the Munsif dismissed the suit in toto. The plain-
tiff thereupon appealed to the learned District Judge, who, though record-
ing emphatic findings in his judgment of the 17th March 1888, does not
appear to have fully appreciated the exact area of the land in suit or its
exact identity. Nor does he seem to have fully appreciated the scope of
the relief prayed for in the plaint, for that relief included a prayer for the
demolition of the mosque, which, according to the plaintiff's own allega-
tion in the plaint (vide para. 3 of the plaint), was constructed as long ago
as [543] the 21st October 1881, and according to the defendants' allega-
tion as long ago as 1873.

The learned Judge's judgment contains many indications that he
confused plot No. 38 with the land now in suit, which, as stated by me,
is 1 biswa 7| dhurs in plot No. 46, and on which the mosque sought to
be demolished stands, and which is the solitary subject-matter of the suit
so far as it seeks ejectment (vide relief in tbe prayer for relief in the plaint).

The learned Judge, however, found that the possession of the plaintiff
was disturbed when he put upon the land a stack of wood for fuel and that
fuel was removed by order of the Magistrate who granted, to use the words
of the learned Judge himself, a perpetual injunction some time about the
28th July 1886, prohibiting the plaintiff from stacking the fuel upon the
land now in suit. After the dcubt which I have expressed as to whether
the learned Judge realized the identity of the land, it is not necessary tor
m'e to rule whether that finding as a question of fact was or was not right.

Upon this state of things, the case came up before me in second
appeal sittiug as a single Judge in this Court on the 3rd July 1889, and I
felt then, as I feel now, that the judgment of the learned District Judge
from which tbe second appeal had been preferred proceeded upon a confu-
sion and misapprehension as to the identity of the property in suit, and
also therefore as to tbe facts which required determination by a Court of
first appeal.

In consequence of this circumstance I disapproved of the somewhat
emphatic findings of fact arrived at by the learned District Judge and
remanded the case under s. 566 of the Code of Civil Procedure for clear
findings upon the following points:

"(1) what are the exact terms of the lease upon which the plaintiff
comes into Court, and do those terms entitle to the plaintiff to maintain an

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 52 of 155)