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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 90 of 155)
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Code of Civil Procedure. The suit was decreed by the first Court, all the
material issues having bean found in favour of the plaintiff. The defend-
ants appealed, and that portion of the memorandum of appeal to the lower
appellate Court which relates to the document in question is as follow :
"An unregistered receipt may be inadmissible in evidence, but is sufficient
for the satisfaction of a Court of justice." That was a broad proposition,
but whether well founded or not we need not consider, because the docu-
ment in question was not tendered in evidence in thelower appellate Court.
It has been contended here that it was duty of the lower appellate
Court to deal with the document, inasmuch as it had not been returned
to the defendants by the first Court. We do not accede to that argument;
we assume that by some oversight on the part of some officer of the first
Court, or by reason of the defendants or those who represented them not
asking to have the document handed over to them it was allowed to
remain on the record. The fact of its being on the record did not avoid the
necessity which the [358] defendants were under to tender it in evidence
to the lower appellate Uourt, if they wanted to rely on it. S. 142A, cl. (2),
is explicit, and the document in question not having been admitted in
evidence cannot be treated as forming part of the record, although in
fact it is found amongst the papers on the record. We do not consider
whether the document was admissible in evidence under the Registration
Act or whether if it was inadmissible in evidence under the Registration
Act, a Court of justice could look at it or not. It was not tendered in
evidence in the lower appellate Court, and no question consequently arises
upon it. The other matters raised in the appeal are concluded by the
findings of fact in the lower appellate Court. The appeal is dismissed
with costs.

Appeal dismissed.



14 A. 358 = 12 A.W.N. '1892) 36.

CIVIL REVISIONAL.

Before Mr. Justice Straight.



GAURI DATT (Decree-holder, Petitioner) v. SHANK AR LAL

(Judgment-debtor, Opposite Party.)*
[29,h February, 1892.]

Execution of decree Insolvency Two reliefs not concurrent Civil Procedure Code,
SS. 351, et seqq.

A decree- holder in respect of whose judgment debtor an order declaring him
insolvent and appointing a receiver has been passed under s. 351 of the Code of
Civil Prooedure, and whose decree has been placed on the list of the judgment-
debtor's scheduled debts, cannot, paripossu with the proceedings in inaolvenoyi



1892

FEB. 23.

APPEL-
LATE
CIVIL,

1} A. 356 =
12 A.W.N,

(1892) 12,



Civil Revision No. 60 of 1891.
of the Code of Civil Prooedure.



Miscellaneous Application for revision under



597



14 All. 359



INDIAN DECISIONS, NEW SERIES



[Vol.



1892

FBB 29.

CIVIL "
BEVI-

SIGNAL.

14 A. 338-
12A.W.M.
(1892) 36.



go on executing bis decree in the ordinary way against that judgment-debtor.
Badal Singh v. Birch (1), and Abdul Rahman v. Deharl Puri (2) distinguished,

[P., 28 M. 122 = 15 M.L.J. 1 (F.B.).]

THE facts of this case sufficiently appear from the judgment of
Straight, J.

Munshi Bam Prasad and Kunwar Parmanand, for the applicant.
Babu Jogindro Nath Chaudhri, for the opposite party.

JUDGMENT.

STRAIGHT, J. This is an application for revision under s. 622 of the
Code of Civil Procedure of an order of the Small Cause Court Judge
of Allahabad, dated the 29th of August 1891. Gauri [359] Datt, the peti-
tioner, held a decree for money, dated the llth of February 1887, against
Shankar Lai. In the early part of 1888, Shankar Lai got into difficul-
ties, and upon the 14bh of April 1888 an order was passed under s. 351 of
the Code, declaring him an insolvent, and upon the same date a receiver
was appointed. Subsequently to the order in insolvency certain parties,
alleging themselves to be the creditors of Shankar Lai, came forward, and
among them was Gauri Datt, the holder of this money decree, and a
schedule of creditors was prepared, and in that schedule was included the
name of Gauri Datt, and there it remains to the present moment. Now
Gauri Datt, outside of the proceedings in insolvency, has gone with hi&
decree to the Court of Small Causes, and despite the pendency of those
insolvency proceedings, has sought execution of it in the ordinary way.
The learned Small Cause Court Judge has held that that money decree of
Gauri Datt has become part and parcel of the scheduled debts under s. 352
of the Code of Civil Procedure, and that any rights Gauri Datt has under
that decree must be regulated by Chapter XX of that Code.

Mr. Ram Prasad has strenuously argued to the contrary, and in
support of his contention be has referred to two cases, Badal Singh v.
Birch (1) and Abdul Rahman v. Behari Puri (2). With regard to the first
of these rulings I think it enough to say that it is distinguishable upon
the ground, first, that no receiver was appointed, and, secondly, that the
decree of the decree-holder was obtained, after the order in insolvency
had been made. With regard to the second ruling, it seems to me clearly
distinguishable, because, whether rightly or wrongly, the learned Judges
who decided that case held that under the circumstances therein disclosed
there was bar to a suit under s. 283 by the party who had obtained a
decree against a person in respect of whom an order in insolvency had
been made.

It seems to me that Mr. Ram Prasad's contention, if effect were
given to it, would practically render the whole provisions of Chapter XX
of the Code nugatory and useless. I presume that [360] they were
framed with two objects : first, the relief of an embarrassed judgment*
debtor from obligations that he was honestly unable to meet, and secondly,
that creditors who came in and proved in the insolvency proceedings were
to share and share alike out of the proceeds or assets derived from the
property of the insolvent, and provision is made in ss. 357 and 358 as to
what protection is to be afforded to the insolvent, and under what circum-
stances he is to be held discharged from further liability in respect of his
scheduled debts. If Mr. Ram Per shad's contention is to be given effect



(1) 15 C. 762.



(2) 10 A. 194.



598



YII] POHKAB SINGH V, GOPAL SINGH 14 All. 361

to, this startling state of things would arise, that where an order 1892
of insolvency had been passed and the insolvent bad a hundred credi- FEB. 29.
tors, fifty of whom were decree holders and fifty of them entitled
to sums of money from him, not only might they avail themselves CIVIL
of the provision of s. 352, but the fifty decree-holders might, pari REVI-
passu, go on executing their decrees in fifty different Courts, and that sioNAL.

the other fifty parties entitled to money from the judgment-debtor might

institute fifty suits in fifty different Courts. Unless I read s. 352 as ex- II 1. 358=
eluding not only the capacity to institute execution proceedings but also 12 A. W. M,
to institute suits, in either case it would be open to a decree-holder or (1892) 86.
creditor to adopt the above course. Mr. Bam Prasad says, unless there
is a prohibition in terms to a decree-holder's executing bis decree he must
be allowed to do so, even though he is a scheduled creditor. My reply is
that the position he contends for is wholly inconsistent with the scope
and effect of the provisions of Chapter XX. The learned Subordinate
Judge is right in the view he took, and I refuse this application with costs.

Application refused.



14 A 361 = 12 A. WN. (1892) 30.

[361] APPELLATE CIVIL.

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



POHKAR SINGH (Plaintiff) v. GOPAL SINGH AND OTHERS (Defendants}''

[3rd Marob, 1892.]

Letters Patent, s 10 Civil Procedure Cede, ss. 556 : 558, and 558, cl. (27) Dismissal of
appeal for default Appeal under s. 10 cf the Lettus Patent from order of dismissal.

No appeal under s. 10 of the Letters Patent will lie from an order under
B. 556 of the Code of Civil Procedure dismissing an appeal for default, the appellant
not having had recourse to the procedure provided by s. 558 of the said Code.

[F., 15 A.W.N. 140; U.B.R. (1897 1901), Vol. 11,206; R., 390,341 (343) = 15 C.L J.

334 (335) = 14 Ind. Cas. 823.]

THE facts of this case, so far as they are necessary for the purposes
of this report, sufficiently appear from the judgment of Edge, C.J.
Munshi Jwala Prasad, for the appellant.
Munshi Ram Prasad and Munshi Kashi Prasad, for the respondents.

JUDGMENT.

EDGE, C.J. This is a Letters Patent appeal. The second appeal
out of which it arose came on to be heard before our brother Mabmood on
the 20th of July 1891. It was dismissed for default under s. 556 of the
Code of Civil Procedure. The appellant, instead of following the course
provided for by s. 558 of that Code, presented this Letters Patent appeal.
I am of opinion that when the Code of Civil Procedure provides a specific
remedy the appellant must follow it, and not having done so in this case, I
would dismiss his appeal with costs.

STRAIGHT, J. In support of what has fallen from the Chief Justice,
I would point out that Mr. Jwala Prasad sought to support his appeal
upon an affidavit of merits and facts connected with the dismissal for
default. The best person to deal with those merits and matters of fact

* Appeal No. 34 of 1891, under s. 10 of the Letters Patent.
599



II All, 362 INDIAN DECISIONS, NEW SERIES [Yol.

1892 was the Judge who dismissed for defaulb, and I believe that ife was the

MARCH 3. this reason that the section was framed in order that the Judge who

dismissed for defaulb might have an opportunity of readmitting or refusing

APPEL- to readmit the appeal, and in the latter case the appellant isenoitled to the

LATE advantage of the appeal provided for by s. 588, cl. (27).
CIVIL.

14 A. 362 = 12 A.W.N. (1892) 36.
14 Ai 361 =
12 A.W.N. [362] APPELLATE CIVIL.

(1892) 30, Before Mr. Justice Straight and Mr. Justice Knox.



BISHESHAB (Plaintiff) v. MUIRHEAD (Defendant}* [4bh March, '1892.]

Zemindar and tenint Lfswr ani leiset Lessee taking lease direst from zamindar
Suit by occupancy tenant to eje^t zimindar's lessee Equitable estoppel,

Where a person took a permanent lease of a cultivatory holding direct from
the ztmindar without making any inquiries as to who were the cultivators and
on what tenure they held ; and where, the permanent lessee having commenced
to build, one of the cultivators, being an occupancy tenant, subsequently brought
a suit in ejectment against him : held, that the lessee should, by the knowledge
that the land was a oultivatory holding, have been put on his guard and have
made inquiries as to the exaot condition of the title, and that as he had not done
so the doctrine of equitable acquiescence oould not be applied in his favour.

[F., L.B.R. (18931900) 512 (514) ; 1 L.B.B. 196 (198).]

THE facts of this case sufficiently appear from the judgment of
Straight, J.

Munshi Kashi Prasad, for the appellant.
Mr. W. M. Colvin, for the respondent.

JUDGMENT.

STRAIGHT, J. This suit was brought by Bisheshar Ahir for eject-
ment of the defendant from an area of land amounting to 15 btswas 7
dhurs situated in the zamindari of Becbupur of which one Prayag Singh
is the zamindar. Prior to the month of June, 1887, the plaintiff was the
occupancy tenant of Prayag Singh and in occupation and cultivation of
the land in suit with other land constituting an occupancy tenure of 11
bighas 10 biswas and 9 dhurs. It is not denied that in the month of
June, 1887, the defendant enclosed within a fence the land claimed by the
plaintiff in the present suit along with obher land ; and that within the
area so fenced in he has planted trees and has erected a building at the
cost of a very considerable sum of money. The plaintiff says: "In
doing this you are a trespasser, who has interfered with and destroyed my
enjoyment of my occupancy right. " The defendant replies : " I did so
under the warrant and authority of a lease granted to me by Prayag on the
4th of June, 1887. " Another ground taken up by the defendants which it
would be convenient to dispose of at once was that Pcayag should have
been made a [363] party to the suit ; and that as through his action in
granting the lease to the defendant, under which the defendant acted, the
plaintiff had been dispossessed, his proper procedure was under clause, (n) t
9. 95 of the Bent Act against the zamindar, and that no action having been
taken within six months from thedate of the dispossession, he was barred by

* Second Appeal No. 337 of 1889, from a decree of C. Donovan, Esq., District
Judge of Benares, dated the 8th December, 1888, confirming a deoree of Pandit Raj
Nath, Munsit of Benares, dated the 25 June, 1888,

600



YII]



BISHESHAR V. MUIRHEAD



All. 364



time, and was not entitled to come into the Civil Courts to maintain
the present suit. That view was adopted by the first Court, and the
same view was taken by the learned Judge in appeal, and it is upon that
ground that he has upheld the decision of the first Court dismissing the
plaintiff's claim.

It is impossible that I can hold this view to be sound law. The
plaintiff was undoubtedly an occupancy tenant of a certain piece of land.
The defendant, a stranger, came upon that land and interfered with it
in such a way as to destroy the plaintiff's occupancy rights. He was
undoubtedly a trespasser, and against such a person, I have no doubt
whatever that the plaintiff, wholly irrespective of any statutory right
he might have had as against his landlord under the Eent Act, waa
entitled to seek relief from the Civil Courb to restore possession to him
as against this trespasser. I am therefore very clearly of opinion that
the ground upon which the suit was dismissed by the lower Courts was
wrong, and that their judgments cannot be sustained.

Then comes a very grave and serious question for consideration
which arises upon the contention of the learned Counsel for the respondent,
namely, that taking the facts as stated in the judgment of the lower
Court and as found by tbe learned Judge, the doctrine of equitable
acquiescence should be applied as against this plaintiff, and that it should
be held that he by his conduct is estopped now from asserting his
occupancy rights in the land to which this suit relates.

I cannot help saying that there has baen a good deal of loose talk
with regard to this doctrine of equitable acquiescence, and that there are to
be found judgments which in a way that is not altogether satisfactory
applied or refused to apply it. It is well that I should, so far as my
own view is concerned, very clearly point out what I understand to be
the principle that should govern, us, [361] In enunciating this prin-
ciple it must be borne in mind that we have a provision contained in our
Evidence Act which at least indicates the lines upon which an estoppel
of any kind should proceed. Undoubtedly if the owner of a piece of land
stands by while another person professes to sell that land to a tbird party,
and he does not interfere, but allows that other person to hold himself
out to be the owner of the land and to make a transfer of it, he is not to
be heard afterwards for the purpose of destroying that purchaser's
title by asserting to the contrary, though he may upset that title if he can
show either that the purchaser had notice of his title, constructive or
actual, or that circumstances existed at the time of the purchase which,
as a reasonable man should have put him upon his gufird and suggested
inquiry, which inquiry, if made, would have resulted in his ascertaining
the title of the true owner. In that case, supposing he makes out such a
case, the purchaser cannot hold on to his purchase and the true owner
is entitled to bis property. That principle is laid down in tbe cases of
Bamcoomar Koondoo v. Macqueen (1), and Uda Begam v. Imam-ud-din (2),
and is embodied in s. 41 of the Transfer of Property Act.

In dealing with a case like the present, where the zemindar was
granting a perpetual lease at a ground rent of an area of land of 11 bighas
15 biswas, it was in my opinion incumbent upon the defendant, knowing
the circumstances, as he must be presumed to have known them, that
attach to the tenure of land in India, to make inquiries as to whether
subordinate to the zemindar's interests there were cultivatory interests in



1892

MARCH 4.

APPEL-
LATE
CIVIL.

14 A. 362 =
12 A W.N.
(1892) 36,



(1) I. A. Bupp. Vol. *0.
A VII 76



(2) 1 A, 82.



601



14 All. 365



INDIAN DECISIONS, NEW SERIES



[Yol,



1892 the land which would have to be compensated or provided for under the

MARCH 4. lease. As regards a considerable portion of this land it is clear from the

circumstance of the present plaintiff's claim and of the claim of the plain-

APPEL- fciff in the otb^r suits that it is and has long been a cultivated area. This

LATE was a fact in itself euch as to put the defendant upon his guard and to

CIVIL make it incumbent on him as aa ordinarily prudent and cautious man to

make inquiry. If be had made inquiry the unavoidable result must

11 A 362= have been that he would have ascertained the interest as occupancy

12 A.W.N. tenant of this plaintiff and the others. He did no such thing. He
(1892) 36. [365] was content to take from the zemindar, and the zemindar alone,

this perpetual lease, and it is not suggested that he ever entered into or
made any inquiry. In that aspect of the matter it does not appear to me
that as defendant in this cause, he can be beard upon the question of
acquiescence which was put forward by his learned Counsel. Having'failed
to make inquiries he must be presumed to have had notice or to have
known ofitbe existence cf the right of the plaintiff in this suit and the
plaintiffs in the other suits. He must be taken to have known that there
were other persons who had interests in this land upon which he was
building these erections and which he was inclosing. I think therefore
that there was no equitable estoppel maintainable against the plaintiff.

It has been urged that the case has aspects of hardship as regards the
defendant. No doubt it is a matter for regret that he should have spent
so considerable a sum. of money upon the erection of the buildings ; but he
is in no worse position than any other man who, having failed to take the
necessary precautions required of him, finds himself confronted by
a person whose title he has overlooked. On the other hand, it may be
said that these occupancy tenants have been placed in a serious difficulty
by having their rights interfered with and their cultivation of the land,
which they held on the strength of a tenant's right created and recognised
by a statute, disturbed.

I think therefore that the plaintiff is entitled to succeed in his suit,
and I decree the appeal, and, reversing the decree of the lower Courts,
decree the plaintiff's claim to possession of this land, but direct the decree
be not given effect to for a period of three months from the date of the
decree, during which period of time the defendant must be afforded full
leave and license to go upon the land and to remove the materials. Under
all the circumstances, I think the proper order to make about costs is that
each party is to bear its own costs.

KNOX, J, I concur entirely in the order and also in the reasons for
the same.

Appeal decreed.



602



YII]



CHANDI DIN V. NARAINI KUAR



14 All. 367



14 A. 368 (P.C)

[366] PRIVY COUNCIL.
PRESENT :

Lords Hobhouse, Macnaqhten and Hannen and Sir E. Couch.
[On appeal from the High Court at Allahabad.]



CHANDI DIN (Plaintiff) v. NARAINI KUAR (Defendant}.
[5th and 25th March, 1892 ]

Civil Procedure Cole, ss 566 and 567 The framing a new issue by an Appellate
Evidence recorded in cm suit admitted by consent t\t the hearing if another.

In the Court of first instance the appellant, upon the title of a sister's sou,
was one of the plaintiffs who obtained a decree for an inheritance, tLe suit having
been heard at the same time with another, in whioh relations of the deceased
owner, aleging themselves to be of the same gotra with him, also obtained a
decree as his heirs. Evidence in the latter suit was received in that of the appel-
lant by consent of parties, both suits having been brought against the same
defendant, whose title, as widow of a son alleged to have been adopted by the
last owner, was set up in both but was not proved.

Appeals having been filed in both suits, in that brought by the sister's son a
new issue was framed by the appellate Court, under section 566, Civil Procedure
Code, as to whether be was entitled as nearest of kin, or was excluded by the
other claimants, whose suit was, at the time, compromised.

Held, that, after what had taken place in regard to both suits the appellate
Court could frame this issue, although it was new, and had not been raised by
the defendant's written answer.

With reference to the evidence in the one suit having been imported as a whole
into the other at the first hearing, and the admission of evidence upon the trial
of the new issue ; it was held, that; the parties intended that the evidence should
be admitted and that no irregularity bad taken place materially affecting the
decree of the High Court, which dismissed the suit of the sister's son, on return
made under section 567,

[N.B.-See in this connection 9 A. 467 whereon this appeal has arisen,]

APPEAL from a decree (7th of December, 1886) of the High Court,
reversing, after remand, a decree (20th of June, 1881) of the District Judge
of Bareilly.

This appeal was preferred in one of two suits brought by two sets of
plaintiffs against the same defendant and transferred from the Court of
the Subordinate Judge to that of the District Judge, by whom they were
heard together. In one of these suits, Chandi Din and others v Naraim
Kuar, evidence recorded in the.other, Piyare Lai and others v. Naraini Kuar,
was admitted by consent.

[367] The principal questions in this appeal were, as to the appellate
Court having framed a new issue and referred it under section 566 to the
original Court, and as to the admission in the one suit of evidence heard
in the other.

The facts giving rise to the suit are stated in the report of the appeal
in the High Court, Naraini Kuar v. Chandi Din and others (1).

Both suits were for possession by right of inheritance of ancestral
estate consisting of villages, garden?, houses and other properties valued
at Es. 5,84,490 which had belonged to Cbaudhri Naubat Earn, a Kanaujia
Brahman of Bareilly, who died in 1867, and to whom the plaintiff-
appellant, Cbandi Din, was related as sister's son. The plaintiffs in the
other suit were Piyare Lai, who died pending the appeal in the High

(1) 9 A. 467.

603



1892

MARCH 25,

PRIVY
COUNCIL.

14 A. 366

(P.O.



14 All 368



INDIAN DECISIONS, NEW SERIES



[Vol.



1892

MARCH 25.

PRIVY

COUNCIL.

14 A. 366

(P.O.).



Court, Sbib Lai and Bhairon Prasad, descended from an ancestor common
to them and to Naubat Earn. In both suits the defence has set up that
the defendant, Naraini Kuar, being the widow of the late Baghunandan
Bam, who had been the adopted son of Naubat Rim, was, therefore, entit-
led to the succession ; and in Piyare Lai's suit, Naraini pleaded that the
plaintiffs were strangers, and not related to the family. Not only did the
suits differ in respact of the titles set up, but originally there were
other co-plaintiffs with Ohandi Din, not claiming under his title. These
were Musammat Dayan, who claimed as step-mother of Naubat Bam, and
Mashuk, a purchaser of part of the shares claimei by each of the other
two plaintiffs. Tbe representatives of this purchaser were parties to this
appeal. Dayan withdrew her claim when the suit was first before the
District Judge, and the purchaser also abandoned that part of-the property
to which title had been alleged through her. There being thug, more
especially at first;, an absence of identity in the plaintiff's interests, both
sets, while the suifes were pending in the Oourt of the Subordinate Judge,
on the 4th of July, 1879, applied that they might be added as defendants,
each set in the suit in which they were not plaintiffs. The order was
made in that Oourt, purporting to be under section 32, Civil Procedure
Code, that they should be added as defendants. This order, however,
[368] was reversed (16th of February, 1880) by the High Court (Pearson
and Straight, JJ.), and the judgment is here given, as it may be consi-



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 90 of 155)