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itself is not well prepared, because it refers to the bond itself, and I have,
therefore, considered it necessary to consider the terms of the bond.

For these reasons I agree in the order which has been proposed by the
learned Chief Justice.

KNOX, J. For the reasons given by the learned Chief Justice I con-
cur in the proposed order of remand.

Cause remanded.



(1) 6 C, 749.
488



VII] UDIT SINGH V. KASHI RAM 14 All. 187

14 A. 185 (F.B) = 12 A,W N. (1892) 88, 18Q2

FULL BENCH. MARCH 11,

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

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



II A. 183

UDIT SINGH AND OTHERS (Defendants) v. KASHI EAM (Plaintiff).* (F.B.) =
[llth March, 1892.] 12 A.W.M.

(1892i 88

Easement Way Prescription Landholder and tenant Act V of 1882 (Easements

Act) Act VIII of 1891.

There is nothing in Act VIII of 1891 to compel the Court to apply the
Easements Aot (V of 1882) to a suit oommanoed before Act VIII of 1691 came
into force.

[186] A tenant cannot as against bis landlord acquire by rrescription an ease-
ment of way in favour of the land occupied by him as tenant, over other land
belonging to his landlord.

80 held by the Full Bench. Gay ford v. Muffatt (1) referred to.

[ppr., 29 C. 363 = 9 C.W.N. 856; 1C.W.N. 151 ; R., 31 C. 503 = 8 G.W.N. 425;
0., 16 A. 181.]

THE plaintiff in this case was a corn-dealer who established a market
upon a plot of land which he rented from the defendants. To the north of
this plot was a piece of waste land belonging to the defendants, and access
to the market could only be obtained through this land. Such access was
afforded by a wide opening between certain buildings on the west and east.
In January 1886 the defendants built on their own land a wall across the
opening, cutting off all communication from the north to the plaintiff's
market. On the 16th March 1886 the plaintiff instituted the present suit,
in which he claimed the demolition of the wall, a declaration that he was
entitled to an easement of way by prescription through the defendants'
waste land to the market, and damages for the loss of business at the
market caused by the erection of the wall and obstruction of the passage.

The Court of first instance (Munsif of Ballia) decreed the claim. On
appeal by the defendants, the District Judge of Ghazipur affirmed the
Munsif's decree. The defendants preferred a second appeal to the High
Court.

The appeal came for hearing before Mahmood, J., who directed that
the case should be laid before the Chief Justice, with a recommendation
that three questions (which are stated in the judgment of Edge, C. J.,
below) should be referred to the Full Bench. These questions were
accordingly ordered by Edge, C. J., to be referred to a Full Bench of five
Judges.

Mr. Roshan Lai, for the appellants.

Munshi Kashi Prasad, for the respondent.

JUDGMENT.

EDGE, C.J. This is a second appeal in a suit brought by a tenant
against his landlords, in which the tenant alleged that he had acquired
by user an easement or right of way over the adjoining [187] land of his
landlords. The questions which we are asked to decide in order to dispose
of this suit are as follows :

* Second Appeal, No. 104 of 1888.
(1) L. R. 4 Ch. A. 133.

489
A VII 62



1* All. 188



INDIAN DECISIONS, NEW SERIES



[Yol



1892

MARCH 11,

FULL
BENCH,

14 A. 185

(F.B.)

12 A W.N.

(1892) 38,



" (1) Whether Act VIII of 1891 is retrospective, that is, whether, by
dint of the enactment, Act V of 1882 governs this case.

" (2) Whether a tenant or occupier of land can acquire for his own
benefit a right of easement under s. 26 of the Indian Limitation Act
(XV of 1877) or under the Indian Easements Act (V of 1882) read with
Act VIII of 1891.

(3) If so, whether the tenant can acquire an easement against his
own landlord."

The alleged cause of action was the building by the landlords of a
wall which interfered with the right of way claimed. So as to avoid
any mistake as to my meaning, I should point out that the tenant does not
allege that his holding had at the time it was let to him the right of way
in question as appurtenant to it, nor does he allege that the landlords
granted any such right of way as appurtenant to the holding, nor
again does he allege that the way claimed was what is known in law as a
way of necessity ; he merely alleges that he as the tenant in the occupation
of his holding had by user obtained a right of way against his landlords,
over their adjoining land. In my opinion it is contrary to common
sense that any such right as is here alleged could possibly have been
acquired. Such right could only have been acquired, if at all, in respect
of the holding occupied by the plaintiff. That holding is the landlords'
holding, and they, the landlords, are in possession of it through their
tenant the plaintiff. The plaintiff is not an owner claiming a right in
respect of a dominant tenement over another servient tenement ; he is
not claiming this right for or on behalf of his landlord? ; but he is claiming
it adversely to them, although for and on behalf of their own property.
The law, as I conceive it to be, was very concisely put and illustrated by
Lord Cairns in his judgment in Gayford v. Moffat (1). That was a case
in which a tenant was claiming a right of easement over his landlord's
[188] property as a right acquired by the tenants not granted by the
landlord. Lord Cairns said " But it is not necessary to examine the
user, for this reason, that if there is a person to whom the owner of two
closes has demised one of them, and if in order to get at that one there is
a necessity to cross the other close which was not demised, and if, in the
course of years, from the circumstance that the landlord had no particular
occasion to use the close for any other purpose, or that he was not strict
in obliging his tenant to adhere strictly to the way, he had allowed the
tenant for his convenience occasionally to make deposits of this kind on
other parts of the close, still it is utterly impossible that by such a course
of proceeding the tenant as against his landlord could acquire any ease-
ment whatever. An easement must be acquired in respect of some tene-
ment, and the only tenement in respect of which this easement could
be acquired, and which itself would become the dominant tenement,
is the demised close. Bub the possession of the tenant of the demised
close is the possession of his landlord, and it seems to be an utter
violation of the first principles of the relation of Ian ilord and tenant to
suppose that the tenant, whose occupation of close A was the occupation
of his landlord, could by that occupation acquire a easement over close
B, alao belonging to his landlord, the duty of the tenant being to take
care that if he is passing over close B at all, he should do nothing on it
more than his lease authorized him to do, and it must be supposed for
this part of the argument that the lease in this case authorized him to

(1) LB. 4;;0h. A. 133.
490



YII] DDIT SINGH V. KASHI RAM 11 All. 190

do no more than cross the yard without; any right of depositing goods on 1892

it." In that case it must be observed that it was assumed that the lease MARCH 11

granted a right of way, but not the right claimed by the tenant to deposit

goods on the neighbouring close of his landlord. I would answer the

first question by saying that Act V of 1882 does not govern this case, BENCH.

inasmuch as it was not made applicable to these Provinces until after

this suit commenced, and there is nothing in Act VIII of 1891 to compel

us to apply Act V of 1882 to a suit commenced before Act VIII of 1891 ^

came into force. I would answer the second and third questions so far **.,

as they are applicable to the facts [189] of this case in the negative, and

furbher wibh regard to the Indian Easements Act (Act No. V of 1882),

I would draw attention to s. 12 of that Act. The result is that I would

allow the appeal and dismiss the suit with costs in all Courts.

STRAIGHT, J. I entirely agree with the learned Chief Justice both
in his answer to the questions referred and in the decree which he
proposes to make in the appeal.

TYRRELL, J. I am entirely of the same opinion as the learned Chief
Justice.

MAHMOOD, J. I also am of the same opinion ; but there is one
point which I wish to explain, and that is, that the passing of Act VIII
of 1891, which extended the operation of the Indian Easements Act (V
of 1882) to these Provinces, cannot, in the absence of express words,
be taken as retrospective, or as either disturbing existing rights or creating
new ones. Therefore till the date of the coming into force of Act
VIII of 1891, there was no law in this part of the country governing
questions of easements except s. 26 of the Indian Limitation Act (XV
of 1877) and such portions of the Common Law as were applicable to
those questions. Another point which I wish to add relates to the
emphasis laid by Mr. Jwala Prasad in regard -to the use of the words
" owner or occupier of certain land " as those words occur in s. 4 of the
Indian Easements Act in the definition of the word " easement," and also
I wish to refer to s. 12 of that enactment in order to say that neither .the
definition contained in the former section nor anything in the latter
section militates against the view which the learned Chief Justice has
expressed. The Indian Easements Act may be referred to and taken for
what it is worth and in settling disputes arising before the Act was extended
to these Provinces, but it does not in any way negative the views
expressed by the Chief Justice and concurred in by my brother Straight.
Then come the other two questions of my referring order, and as to these
I have merely to add that I agree not only in the judgment of the learned
Chief Justice but also in the decree proposed by him.

[190] KNOS, J. I am of the same opinion as the learned Chief
Justice boih as to the answer to the reference and as to the decree which
he proposes to pass in the appeal.

[The appeal was accordingly allowed and the suit dismissed with
costs.]



491



14 All. 191 INDIAN DECISIONS, NEW SERIES [Vol.

1892 14 A. 190 = 12 A.W.N. (1892) 33.

MARCH 24. APPELLATE CIVIL.

APPEL- Before Sir John Edge, Kt., Chief Justice, and Mr. Justice Tyrrell.
LATE

CIVIL. MUHAMMAD HUSAIN (Defendant) v. DIP CHAND AND OTHERS

(Plaintiffs.)* [24th March, 1892.]
14 A. 190 =

19 I W N Hindu Law Joint Hindu family Simply money decree against father "how far binding
**" upon son's interest in the joint family froperty Execution of decree Civil Proce-

(1892) 53. dure Code. s. 237.

With reference to the question whether the whole joint family property or
only the interest of the father therein is liable under a decree obtained against
a Hindu father, held that where there is nothing to show any limitation of the
extent of the interest sold, whether the sale took place in execution of a decree
on a mortgage or of a simple money decree, it may bs presumed that the family
property and not the mere undivided share of the father was sold. Pern Singh
v. Partab Singh (1) referred to.

The specification required by section 237 of the Civil Procedure Code, of the
judgment-debtor's share or interest in immoveable property sought to be attached,
should state distinctly whether it was the judgment-debtor's undivided share or
the family property in which the judgment-debtor had an undivided share,
which was sought to be attached, and should also specify what that family pro-
perty was. If the specification merely referred to the judgment-debtor's share
and interest in what watt the family property, the Court would hold, unless
something to the contrary appeared, that the sale was of that share and interest
only.

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

Pandit Sundar Lai, for the appellants.

Mr. A. H. S. Reid and Munshi Bam Prasad, for the respondent.

JUDGMENT.

[191] EDGE, C.J., and TYRRELL, J. The appellants in the second
appeal are auction-purchasers or representatives of auction-purchasers
who purchased at an auction sale in 1861 held in execution of a money
decree obtained against one Dull. The suit out of which this appeal has
arisen was brought by one Dip Chand, a grandson of Duli, against these
appellants, or those since dead whom they now represent. We shall refer
to the appellants as the defendants in this suit for brevity's sake. Dip
Chand was born before that sale of 1861. and was at the time of that sale
a minor. Since this appeal was filed Dip Chand died and his father,
Sita Earn, was brought on the record to represent the interest of
Dip Chand in the appeal. The suit was to obtain possession of Dip
Chand's share, namely, one-sixth, in the property which the auction-pur-
chaser took possession of after the sale to them by auction in 1861. The
question has been, what was the property sold, that is, was the property
sold the whole of the undivided family property in the mauza, or was it
merely Duli's undivided share in the family property, in other words, his
right to partition ? The lower appellate Court found that Dip Chand's
share was not sold. The meaning of that finding is that the only share
which was sold in execution of that money decree in 1861 was the undivid-
ed share of Duli in the family property. It has been contended by Pandit

* Second Appeal, No. 1800 of 1885, from a decree of W. R. Barry, Esq., District
Judge of Aligarh, dated the 15th June 1885, reversing a decree of Maulvi Sami-ullah
Khan, Subordinate Judge of Aligarb, dated the 80th June 1883.

(1) 14 A. 179, supra.

492



Y1I]



MUHAMMAD HUSAIN V. DIP CHAND



14 All. 193



Sundar Lai that on the authority of Beni Madho v. Basdeo Patak (1) and
the recent Full Bench ruling in Pern Singh v. Partab Singh (2) the lower
appellate Court should have found as a question of law that the whole family
property, and not Duli's undivided share, was sold at the auction sale in 1861.
On the other hand, Mr. Reid for the respondent has referred to Hardi Narain
Sahu v. Budir Per hash Misser (3) and Maruti Sukha Bam v. Babaji (4) and
has contended that the decree in execution of which the auction sale took
place having been a money decree against % Duli and not against the mem-
bers of the joint Hindu family, the lower appellate Court's finding
is correct in law. He has pointed out that in each of the cases cited
by Pandit Sundar Lai the sale had either been effected or threatened
192] in execution of a decree obtained on a mortgage. We abide by the
view expressed in effect in the recent Full Bench ruling that where there is
nothing to show any limitation of the extent of theinterest sold, whether the
sale took place in execution of a decree on a mortgage or in execution of a
simple money decree obtained against the father, a member of a joint Hindu
family, it may be presumed that the family property and not the mere
undivided share of the father was sold. Such a case can rarely arise where
the decree is a money decree, simply because the creditor seeking execution
of his money decree is bound under section 237 of the Code of Civil Proce-
dure to set forth in his application for attachment of the property a specifi-
cation of his judgment-debtor's share or interest in the property sought to
be attached. Section 238 of the Code would also bear on such a case where
the property was registered in the Collector's office. In our opinion such
specification should state distinctly whether ifc was the judgment-debtor's
undivided share or the family property in which the judgment-debtor had an
undivided share which was sought to be attached and should also specify
what that family property was. If the specification merely referred to the
judgment-debtor's share and interest in what was the family property, we
should be prepared to hold, unless something to the contrary appeared,
thab the sale was of that share and interest only and nothing else. At the
time of the execution proceedings in which the sale of 1861 took place, Act
No, VIII of 1859 was in force, and by section 213 of that Act an applica-
tion for attachment of immoveable property required a specification simi-
lar to that required under section 237 of Act No. XIV of 1882. Neither
party apparently put in evidence the execution proceedings of 1861. There
was however some other evidence on the record, on which the lower
appellate Court found that the decree in execution of which the sale of
1861 took place was a decree against Duli and others who were strangers
to i he joint family and in respect of a matter in which the joint family
was not interested and in which Duli had not represented the joint family.
There is some evidence on the record that Duli was made liable in that
matter not as a principal, but merely as a surety. Ifc appears to us that there
is [193] evidence, slight though it may be, to support the finding of the
lower appellate Courb that Dip Chand's one-sixth was not sold in 1861.
Pandib Sundar Lai raised a further contention, namely, that this suit was
barred by section 13 of the Code of Civil Procedure. It appears that Sita
Ram and his brother Nathu brought a suit against the purchasers of 1861
to recover the whole of the property which they had taken possession of
after the sale, their case being that Duli's liability arose out of an immoral
contract from a Hinciu point of view. That suit was dismissed. It appears
to us that that dismissal does not operate as res judicata in this suit.



1892

MARCH -2

APPEL-
LATE
CIVIL.

14 A 190 =

12 A.W N.
(1892) 53.



(1) 12 A. 99. (2) 14 A. 179.



(3) IOC. 626-11 I.A. 26.
493



(4) 15 B. 87.



14 All.



INDIAN DECISIONS, NEW SERIES



[Yol.



1892

MARCH 24.

APPEL-
LATE
CIVIL,

14 A. 190 =
12 A.W.N.
(1892) 53.



In that suit Sifea Bam and Natbu appear to have been suing on
their own behalf. It does not appear that either of those plaintiffs repre-
sented Dip Chand, although Sita Earn was in facb Dip Chand's father.
The accident that Sita Earn for the purpose of defending this appeal has
been brought upon the record as the legal representative of Dip Chand
has, so far aw we can see, no bearing on this question. It was Dip Chand
who obtained the decree from the lower appellate Court and Sita Earn is
merely here to defend that decree, supporting the decree and the rights
of the person whom he represents. There is a slight error, we are inform-
ed, in the decree btlow. The decree will stand for delivery of possession
of one- sixth of the property of which the auction-purchasers who are now
before us, or represented, got possession under the auction of 1861 and
for proportionate mesne profits calculated on the basis of the profits
as certained below. To that extent the decree below will, if necessary,
be varied, in other respects the appeal will be dismissed with costs.

Appeal dismissed.



14 A. 193 = 12 A.W.N. (1892) 53.

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



JAFAE HUSAIN AND ANOTHER (Defendants) v. MASHQU ALI
(Plaintiff)* [2nd April, 1892.]

Suit for recovery of possession of immoveable property Limitation Adverse possession
Burden of proof Act XV of 1877 (Limitation Act}, s. 28.

Where a suit; for the recovery of possession of immoveable property is resisted
by a plea of adverse possession for more than twelve years, the question of limi-
tation [191] becomes a question of title, and it lies upon the plaintiff in the
first instance to give satisfactory prima facie evidence of his possession within
twelve years of the suit. Mchima Chunder Mozoomdar v. Mohesh Chunder
Neoghi (1) and Parmanand Mi&r v. Sahib Ali (2) referred to.

[P., 28 A. 760 = A.W.N. (1906), 234 = 3 A.L.J. 567 ; R., 20 A. 182 = 18 A W.N. 19 ; 15
Ind. Gas. 292 (293) ; L B.B- (18931900) 360; 60 C. 119 (124) ; 65 P.B. 1901 =
105 P.L.R. 1901 ; 105 P.R. 1901 ; U.B.R. (18971900), Vol. II, 360.]

THE facts of this case, so far as they are necessary for the purposes
of this report, appear from the judgment of the Court.

Munshi Jwala Prasad and Munshi Kashi Prasad for the appellants.
Mr. Abdul Majid, for the respondent.

JUDGMENT.

EDGE, C.J. and BLAIR, J. This was a suit for possession brought
by a husband of a deceased Muhammadan lady against her brother and
her brother's son. The plaintiff alleged that he was dispossessed in 1887.
The defendants alleged that the plaintiff and the lady through whom he
claims had never been in possession, and that the defendants had held ad-
verse possession for more than twelve years. The first Court dismissed the
suit as barred by limitation. The District Judge on appeal set aside this
decree of the first Court, and finding that twelve years' adverse possession



* First Appeal, No, 40 of 1891. from an order of Babu Mirtonjoy Mukerjee, Sub-
ordinate Judge of Benares, dated the 28th March 1889.

(1) 16 C. 473; (2) 11 A. 438,

494



ALI AHMAD V. RAHMAT-ULLAH



All. 195



was not established, made an order of remand under s. 562 of the Code
of Civil Procedure. From that order of remand the appeal has been
brought. The District Judge did not try the issue as to whether the
plaintiff had been in possession within twelve years before suit ; he
assumed that in a case of this kind the onus of proof was upon the defend-
ant, and he in fact found no facts on which we could infar that he
thought the plaintiff had made out a prima facie case of possession
within twelve years.

We are satisfied that where a plaintiff comes into Court alleging that
he has been dispossessed within limitation, and when the defence is adverse
possession, the question of limitation becomes a question of title. The
plaintiff must at least give some prima facie evidence to satisfy the Court
in the first instance that he was in possession within twelve years before
the defendant can be called upon to make out his defence of twelve years'
adverse possession. Apparently that is the result of the decision of their
Lordships of the Frivy Council [195] in the case of Mohima Ohunder
Mozoomdar v. Mohesh Chunder Neoghi (l). The authorities which show
that s. 28 of the Indian Limitation Act of 1877 makes limitation a matter
of title to be proved by the plaintiff in suits for the possession of property
are collected in the case of Parmanand Misr v. Sahib Ali (2). In the
present case the District Judge had not tried, or apparently considered, the
question as to whether plaintiff had proved, prima facie or otherwise, title
within twelve years before suit. On that point he seems to have expressed
no opinion on the plaintiff's evidence at all. Before going into the question
as to whether the defendants had or had not a title by adverse possession,
the District Judge ought to have satisfied himself and expressed an opinion
that there was prima facie proof that the plaintiff had a subsisting title
at the commencement of the suit. We set aside the order of remand and
remand the case under s. 562 of the Code of Civil Procedure to the Court
of the District Judge for him to try the issues which arise in the case
and to dispose of the appeal according to law. It may be that the
District Judge may find the question of limitation either way. We
express no ooinion on the facts on either side as to the question of
limitation. Costs here and hitherto will abide the result.

Cause remanded.



1* A. 195 = 12 A.W.N. (1892) 42.

APPELLATE CIVIL.
Before Sir Jhon Edge, Kt., Chief Justice, and Mr. Justice Tyrrell.



1892

APRIL 3.

APPEL-
LATE
CIVIL.

11 A. 193 =

12 A.W.N.
(1892) 59.



ALI AHMAD (Plaintiff) v. EAHMAT-ULLAH (Defendant)*
[lObh March, 1892.]

Construction, of document Mortgage Sale Bai-bil-wafa. nature of Act IV of 1882
(Transfer of Property Act), s. 58Preemption.

The transaction known to Muhammadaa law 3 a bai-bil-wafa is a mortgage
within the meaning of s. 58 of Act IV of 1832, and not a sale.

The plaintiff in a suit for pre eruption had, prior to the sale of the property
claimed, executed a deed in respect of hid share in the village in virtue of which

* Second Appeal, No. 1125 of 1889, from a decree of Bai Lalta Prasad, Subordinate
Judga of Gbazipur, dated the 9th July 1889, reversing a decree of Maulvi Sayyid Zain-
ul-abdin, Munsif of Korantadih, dated the 18th January 1889.

(1) 16 C. 473, (2) 11 A. 438.

495



All. 196



INDIAN DECISIONS, NEW SERIES



[Vol.



1892

MARCH 10.

APPEL-
LATE
CIVIL.



14 A, 193 =
12 A.W.N.
(1892) 42.



be claimed the right to pre-empt, the material portion of which deed waa as



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 74 of 155)