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wise it would have no jurisdiction to entertain. We, therefore,
have to consider and determine whether as a matter of fact the
special agreement alleged by the plaintiffs was established by
the evidence. As we have said the court below held that there
was no evidence upon which it could act. We have pointed
out that the only evidence, namely, that of Bansidhar, one of
the plaintiffs, in support of the alleged special contract, was not
believed. As against it we have before us the evidence of
Banka Mal and Kirpa Ram, both of whom positively assert
that no such agreement was entered into. Bansidhar him-
self in his evidence, says that Shamlal, Banka Mal and we
were present at the time the agreement was made and that
at that time there was no other defendant present, except
Banka Mal. Even if it was agreed between these parties
that the plaintiffs* share of the profits should be sent to
Khurja, this agreement would not be binding upon the
partners who were not present at the time and who were
no parties to it. But in addition to this it is proved beyond
any doubt that a deed of partnership was drawn up and exe-
cuted and any agreement outside that deed would not be
binding upon the partners other than those who entered into
it. We agree with the court below that there was no special
agreement. This being so the court below ought not to have
entertained the suit ; so soon as it came to a finding that
there was no special agreement entered into at the time of
the partnership for payment of the share of the plaintiffs at
Khurja, he ought to have held that he had no jurisdiction to
decide the suit and to have handed the plaint back to the
plaintiffs for presentation in the proper court.

We accordingly allow the appeal, set aside the decree of
the court below with costs in both courts, including fees in
this Court on the higher scale, and we pass the order which
the court below ought to have passed when it found
that the special agreement had not been proved ; that is we
direct that the plaint be handed back to the plaintiffs to be
presented in the proper court. . As a result of our ruling
the objeetions filed under section 561 of the Code of Civil
Procedure fall to the ground. Appeal decreed.



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9^



NAND KISHORE.

versus

ANWAR HUSAIN and another.*

Registered lease — Condition for paytmnt in adv.ince— Validity of payments
in advance as against an auction purchaser.

Bona fide payment of rent in advance by lessees to the lessor

under the condition of a registered lease before sale of the property

is binding upon the purchaser as the lease being a registered one

it is his duty to make enquiries whether any payment was made

under its terms.

Second appeal from the decree of D. R. Lyle Esq.,

District Judge of Moradabad reversing a decree of Ajudhia

Prasad Esq., Assistant Collector.

Sajjad Husain was the owner of certain immoveable property.
On 1st September 1898, he leased the property to Anwar
Husain, respondent, for 10 years, with a condition that the les-
see would have to make payments of rent in advance if required
by the lessor to do so. On 25th December 1902, Anwar
Husain paid Rs. 1,520 to Sajjad Husain under a receipt,
as payment of rent in advance. In 1903 Nand Kishore,
appellant, purchased the property partly by private sale
and partly at auction held in execution of a simple money
decree, and in 1904 sued the leases in the Revenue Court for
arrears of rent due after the date of sale. The defendant
lessee pleaded payment in advance in good faith to the former
proprietor before the plaintiffs purchase, in accordance with
the terms of the registered lease of 1 898. The suit was decreed
by the court of first instance. On appeal by the lessee,
the decree was set aside, and the suit was dismissed.

Plaintiff appealed.

Sir Walter Colvin (with him W, K, Porter and Girdhari Lai
Agarwala), for the appellant.

Abdul Majid, for the respondent.

The judgment of the Court was delivered by

Stanley, C. J. — The question for determination in this
litigation is a novel one. One Sajjad Husain was the owner
of certain property at or prior to the year 1898. On the 2nd
of September of that year, he granted a lease to the defendant

* S. A. 881 of 1905.
XII



Civil.

1907.

December^ 14.

Stanley, C. J.

BURKITT, J.



Stanley, C, /.



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^2 hiGri COURT* [A. L J. R.

Civil. ^^ portion of this property for a term of lo years, that is from

,~ ^306 to 13 1 5 fasli (inclusive). The lease contains a very un-

: usual provision to the effect that if at any time during the cur-

Nand Kishore rency of the lease, the lessor should demand any portion of the
Anwar Husain rent in advance from the lessee, the latter would be bound
Stanley^ C.J. ^^ P^^ '^ ^" obtaining a receipt. The lease was registered
and is not disputed here. On the 25th of December 1902
a sum of Rs. 1,520 was paid in advance for rent by the
lessee to the lessor, on demand made by the lessor, in pur-
suance of the provision in the lease to which we have referred.
This payment, it is found, satisfied the rent payable up to
the end of 13 14 F. On the 20th of October 1903, the plain-
tiff appellant purchased the property so leased, at a sale
in execution of a decree obtained against Sajjad Husain.
He instituted the suit, out of which this appeal has arisen,
for recovery of the rent for the years 13 11 and part of 13 12
fasli, which had been already paid. He was met by the
defence that the rent for that period had already been
paid to Sajjad Husain, under the provision in the lease.
The question is whether under such circumstances, this is
a good defence to the suit. As we have said, the lease is a
registered document, and the plaintiff appellant must be
deemed to have purchased with knowledge of it. It was
open to him when he was contemplating the purchase, to
make inquiry of the lessor or lessee, as to whether or not
any rent had been paid in advance according to the provision
in the lease. He appears to have neglected to do so and
purchased the property, no doubt in the belief that he would
be entitled to the rent from the date of purchase, for the
remainder of the term, but for the fact that the lease was
a registered document and that the rent had been paid bona-
fide, in advance, in accordance with the condition in it, the
plaintiff would probably have been in a position to establish
his claim, but in view of the fact that the lease was registered
and that payment of the rent claimed had been made, in
accordance with it bona fide, before the date of the plaintiff's
purchase, we are unable to dissent from the decision of
the learned Disti :t Judge. The payment of rent before it
becomes due is not ordinarily a fulfilment of the obligation
imposed by a covenant to pay rent, but is in fact an advance



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to the lessor with an agreement on his part that when the
rent becomes due, such advance will be treated as a fulfilment
of the obligation to pay the rent. (See Nicholls v. Saunders
{}), We must hold in view of the facts in this case that the
rent, sought to be recovered in this suit, was satisfied pursuant
to the provisions of the lease by the advance previously made.
The plaintiff appellant cannot complain, inasmuch as he did
not take the precaution of making inquiry as to whether or
not any money had been paid in advance, as provided for
by the document. We, therefore, dismiss the appeal with costs
including fees in this Court on the higher scale.

Appeal dismissed,
(i) L. R. 5 C. P., 589.



Civil.

1907.

Nand Kishore

V.

Anwar Husain.
Stanley, C,J,



LACHMI AND ANOTHER

versus

GANGA DIN and others.*

Joint property —Co'Sharer building on part of the property without permis-
sion of other joint owners — No direct loss — Injunction.

One of several joint owners of land is not entitled to erect a build-
ing on the joint property, without the consent of the other joint
owners, notwithstanding that the erection of such building might
cause no direct loss to the other joint owners. If one co-
sharer builds without consent on the joint land, a mandatory injunc-
tion ought to be granted. Shadi v. Anup Singh, I. L. R., 12
All., 436; Najju Khan v. Imtiaz-ud-din, I. L. R., 18 All., 115,
followed.

Judgment of RICHARDS, J., reversed.

Appeal under section 10 Letters Patent against the deci-
sion of Richards, J.

The facts appear from the judgment of

Richards, J. — In this case the plaintiffs and defendants were co-sharers
in certain zamindari property. The defendants built some pacca rooms
on land which has been found to be, and undoubtedly is, the joint pro-
perty of the co-sharers. Strictly speaking the defendants had no right
to build these rooms, and the plaintiffs were within their right in institut-
ing the present suit. It has been found, however, and I have not the least
doubt that the finding is correct, that the buildings in question were made
on part of the joint property which adjoined the defendants' house, on
land which had been in the use of the defendants, and which had not
* L. P. A. 37 of 1907.



Civil.

1907.

December 20,

Stanley C. J.
BURKITT J.



Richards, /.



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Civil.

1907.

Lachmi

Ganga Din.

Richard^ /.



been in the use of the plaintiffs. Except so far as the building of these
rooms might be an assertion of ai adverse title in tha defendants against
the plaintiffs, the erection of the buildings caused no injury or damage
to the plaintiffs. This being the case, and it clearly appearing from the
judgment of the lower appellate court that the defendants are given no
exclusive right to the land on which the buildings have been erected, the
case resolves itself into a question whether or not a mandatory injunction
should issue for the demolition of these buildings. If it were clear that
the plaintiffs had stood by and allowed the erections to be made >vithout
complaint, and if it were also clear that the defendants never set up any
adverse title, I think the plaintiffs suit should have been dismissed with
costs. It, however, appears that very shortly after the erection of the
buildings,' the suit was instituted, and there is an allegation in the plaint
that the defendants were warned that thsy must not build. If I were
certain that the defendants had really made the case that the plot of land
was not joint property, I would be obliged to allow the present appeal.
However, after careful consideration of the judgments of both the lower
courts, I have come to the conclusion that the case, put forward by the
defendants, was that they and their predecessors had been for many years
using this particular plot This case is probably quite true. But such
user would never have given them the right to the particular plot as
against the other co-sharers. In partition, if ever the property came to
be partitioned, this plot, like all the rest of joint property, would form por-
tion of the joint property, and would be partitioned ^according to the law
regulating partition, notwithstanding for any number of years it had been
separately enjoyed. I have com 3 to thi conclusion not without some
hesitation that I oaglu not to disturb the decision of the lower appellate
court. As, however, the defendants, in form at least, did put forward the
case of adverse possession, and as in that view the litigation may have
become necessary, so that the plaintiffs should never be able to allege
that the property in question was any t'lingf other thin joint property, I
think the plaintiffs ought to get their costs in the court of first instance,
and also in the lower appellate court. No costs will be given to either
side of this appeal. I, accordingly, modify the decree of the court below by
directing that the plaintiffs will be paid, by the defendants, the costs in the
court of first instance and in the lower appellate court Each party will
abide their own costs in this court In other respects, I dismiss the
appeal.

Plaintiffs appealed.

Girdhari Lai Agarwala, for the appellants, submitted that
one co-sharer had no right to build on the joint land, without
the consent or acquiescence of the other co-sharers, even, if there
was no injury done to other co-sharers by the building. He
added that the promptitude with which the plaintiffs sought
the assistance of law, the present suit having been instituted
within a week of the commencement of the erections corn-



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\'OL. \'.]

plained of, gave the plaintiffs a right to have the con-
structions removed. The circumstance, that the land in dis-
pute had been in exclusive use of the defendants, gave them
no right to make the constructions. He relied on the Full
Bench case of

Skadi V. Anup Singh^ [1890] I. L. K., 12 All., 436.
The respondents were not represented.
The judgment of the Court was delivered by
Stanley, C. J. — The facts of this case are few and simple.
The plaintiffs and the defendants are admittedly joint owners
of a certain village, or part of a village. This has been found
by the courts below. The defendants, on a portion of this
village, setting up an adverse claim, erected walls which
interfere with the plaintifi's rights. .At the earliest opportun-
ity, the plaintiff objected to the erection of these walls, but
notwithstanding their opposition to the building, defendants
proceeded with the work, and in consequence the suit, out of
which this appeal has arisen, for a mandatory injunction to
restrain the defendants from building, and for the demolition
of the walls, was instituted. The court of first instance
decreed the plaintiff's claim, but upon appeal the learned Sub-
ordinate Judge reversed the decision of the lower court, being
of opinion that inasmuch as the land had been in the use of
the defendants and not in the use of the plaintiffs, he, in the
exercise of his discretion, was entitled to refuse the injunction.
An appeal was preferred to this Court. The learned Judge,
by whom the appeal was heard, had some hesitation in arriving
at his conclusion. He says " I have come to the conclusion
not without some hesitation that I ought not to disturb the
decision of the lower appellate court " and he affirmed the
decision of the lower appellate court, but inasmuch as the
defendants put forvvard the case of adverse possession, which
rendered the litigation necessary, he refused to give to either
side the costs of the appeal, and declared the plaintiff entitled
to her costs in the court of first instance, and also in the
lower appellate court.

Now it is well settled in this Court that one of several co-
sharers in a village has no right to erect buildings upon
common land against the wishes of the other co-sharers. A



Civil.

1907.

Lachmi

Ganga Din.



Stanley, C. /.



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Civil.

1907.

Lachmi

V.

Ganga Din.



Civil.

1908.

January^ 4,

Stanley, C. J.
Banerji, J.



Full Bench in the case of Shaii v. Anup Singh {}\ held that
in a case where some co-sharers proceeded to erect kachha
buildings upon common land, and another co-sharer objected
to this, and brought a suit for an injunction, he was entitled
to a perf)etual injunction restraining the defendant from
proceeding further with the building, and directing that the
building, so far as it had proceeded, should be pulled do\vn
and prohibiting the defendant from building on that land
as exclusive owner at any future time. In the more recent
case of Najju Khan v Imtiaz-ud-din (*), the facts of which are
very similar to those of the case before the Court, a Division
Bench held that one of several joint owners of land is not
entitled to erect a building upon the joint property, without
the consent of the other joint owners, notwithstanding that
the erection of such building might cause no direct loss to the
other joint owners. In the judgment, it is pertinently ob-
served. " The law provides a legitimate means by which any
co-sharer may obtain partition. The law does not favour
one co-sharer, adversely to the other co-sharers, making a
partition in his own favour, and selecting the portion of the
land he likes by erecting a building upon it." In view of
these decisions and bearing in mind the fact that the plaintiff
lost no time in raising his objection to the erection of the
buildings, we think that the decrees of our learned brother
and also of the lower appellate court cannot be maintained.
We accordingly set aside these decrees, and restore the decree
of the court of first instance with costs in all Courts.

Appeal decreed.
(i) [1890] I. L. R., 12 AIL, 436. (2) [1890] 1- I- R., 18 AIL, 115

RAJ NATH SINGH

versus
PALTU AND OTHERS.*
Vendor and purchaser— Non-payment of consideration — Rights of
Purchaser — Equities.

Mere non-payment of purchase money does not prevent the
passing of the ownership of the purchased property from the vendor
to the purchaser, and the purchaser, notwithstanding such non-pay-
ment can maintain a suit for possession. Shib Lai v. Bhagwan
Das, I.LR., II AIL, 244; [/med Mai v. Davu , I. L, R., 23 Bom.,
525 referred to.

S. A. No. 1007 of 1906



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A court is entitled to pass a decree in favour of the plaintiff for
possession, subject to the equities which exist in favour of the
defendant

Second appeal against the decree of L. Marshall Esq.,
District Judge of Banda, affirming a decree of Saiyed
Hamid Husain, Munsif of Hamirpur.

Suit for possession of property.

The facts appear from the judgment.
y. A^. Cluiudri^ for the appellant.
J, N, Mukerji, for the respondents.

The judgment of the Court was delivered by

Stanley, C. J. — This is a second appeal against a decree
of the lower appellate court dismissing the plaintifiTs suit
for recovery of possession of a 4 pie share in a village. This
share was conveyed to the plaintiff by a sale-deed of the
6th of May 1898 which was duly registered. Possession was
not obtained, and the present suit was therefore brought.
In his plaint, the plaintiff alleged that the full consideration
for the sale, namely, Rs. 200 had been satisfied. In their
defence, the defendants alleged that the consideration had
not been paid, and it is found by both the lower courts that
this was so. In consequence of the finding that no portion
of the consideration had been paid, the learned District Judge
had held that there was in fact no sale of the property. He
observes in the course of his judgment "Thus not any
portion of the consideration has been paid. Non-payment
of the "promised portion would not invalidate the "sale"
and the lower court has recognized this principle. But
when the consideration is supposed to be "part paid and
part promised" and not even the "part paid" amount has
actually been paid, the provisions of section 54 of the Trans-
fer of Property Act have not been fulfilled, and the transac-
tion connot be called a sale at all." We are unable to agree
with the learned District Judge as to this. According to the
sale-deed the consideration was agreed to be paid as follows : —
Rs. 100 to be credited in part payment of past debts, Rs. 20
to be paid in cash and Rs. 80 the balance to be paid to a
mortgagee of the property. Now we must take it, on the



Civil.

1908.

Raj Nath Singh

V.

Paltu.



Stanley, C, /.



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Stanley a J,



findings, that no portion of the purchase money has been

" paid or satisfied. The vendee did not fulfill his obligation

'9o^ - to pay it. It has been held and we think rightly that the

Raj Nath Singh non-payment of the purchase money does not prevent the
Paltu. passing of the ownership of purchased property from the

vendor to the purchaser and the purchaser notwithstanding
such non-payment can maintain a suit for possession of the
property (see Shih Lai v. Bhagwan Das (^). It was so held
also in thecase of Vmed Mai Motiram v. Davu Bin Dhondiba,{})
and again in the case of .SVi^^V v. Namdati^^) in which the evid-
ence showed that there was a bona fide sale of property by the
defendant to the plaintiffs and it was held that this sale
was a completed transaction, notwithstanding the fact that
no portion of the consideration had been paid, and that the
only remedy of the vendor for the consideration was a suit
for recovery of the amount of it. We think, therefore, that the
courts below were wrong in dismissing the plaintiff's claim.
In the case of Shib Lai v. Bhagwan Das, to which we have
referred, it was laid down by Mahmood J., rightly, we think,
that equities may exist in favour of defendant to a suit like
the present one, so as to subject the decree to restrictions
and conditions appropriate to the circumstances of the case.
Here, there is such an equity arising out of the non-payment of
the purchase money by the plaintiff, and regard ought to be
paid to it in any decree which the court may pass. Accord-
ingly we allow the appeal. We set aside the decrees of both
the lower courts and we order and direct that if within six
months from this date the plaintiff pay to the defendants
the sum of Rs. 200 the amount of the purchase money, the
property mentioned in the plaint be delivered to him, but in
default of such payment, the plaintiff shall forfeit his right
to recover the property. If the plaintiff do not pay the
purchase money within the time aforesaid, his suit will stand
dismissed with costs in all courts. If he, however, do pay
the purchase money within such period, then in view of the
fact that the plaintiff alleged in his plaint that he had paid
, the entire of the purchase money contrary to the fact, we
think that both parties should abide their own costs in the
(I) [1888] I. L. R., II AIL, 244. (2) [1899] I. L. R., 23 Bom., 525.

(3) 1878I I. L. R., 2 Bom., 547.



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courts below, and we order accordingly. As to the costs of
this appeal, the plaintiff, we think, if he pay the purchase
money, is entitled 1 3 them and w5 so order, fees being cal-
culated on the higher scale.

Appeal decreed.



Civil.
1908.
Raj N.\th Singh
Paltu.
Stanley., C.J.



GANGA DEI

versus

BADAM AND OTHERS.*

L'in.iij*'d and tenxnt — Tenmfs right to trees on the holding — Injunction.

The presumption of law, and the general rule in the absence of
custom, is that the property in timber on a tenant's holding vests
in the zamindar, and that the tenant has no right to cut and remove
such timber. But, in the absence of custom or of a contract to the
contrary, a zamindar has no right to interfere with the enjoyment
by his tenant of tha trees upDn his holding as long as the relation
of landlord and tenant subsists.

Hence where the courts below granted to the plaintiff, zamindar,
an injunction to restrain the tenants from offering obstruction to
the cutting down, and removal of the trees upon the holding, held
(affirming the judgment of Richards J.) that the injunction was
improper, and had been rightly refused.

Appeal under section 10 of the Letters Patent against the
judgment of Richards, J.

The material facts appear from the judgment of Richards, J.
which is reported at page 452 of the Allahabad Law
Journal, Reports, Vol. IV.

Durga Charan Banerjiy for the appellant.

R. Malcomson^ for the respondents.

The judgment of the Court was delivered by

Stanley, C. J. — The plaintiff appellant is*a Zamindar
and as such instituted the suit, out of which this appeal has
arisen, for a declaration of her title to the trees growing on
the cultivated and uncultivated land in Mauza Kanchanpur,
in the possession of the defendants who are her tenants. She
also prayed for a perpetual injunction, prohibiting the defend-

* L. P. A., No. 49 of '07.
XIII



Civil.

1908.

January y 18.

Stanley, C. J.

BURKITl, J.



Stanley^ C.J.



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Civil.

1908.

Ganga Dti

V

Badam.
Stanley^ C.J,



ants from offering any obstruction to the cutting down and
removal by her of the trees on tlieir holdings. The defend-
ants set up a right by custom to cut the trees in question,
but this plea was rejected, and a declaration of title was
given to the plaintiff appellant as prayed for in her plaint
The two lower courts also granted to the plaintiff appellant
the relief which was claimed by way of injunction, but upon



Online LibraryGreat Britain. Privy Council. Judicial CommitteeAllahabad law journal → online text (page 10 of 79)