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objection should be given to the person bound over and the
Magistrate should give both him and the Police an opportunity
of adducing evidence. Some Magbtrates are in the habit of
calling upon the Police to report upon sureties and of rejecting
sureties upon whom the Police report unfavourably. In our
opinion this is an objectionable practice whether the report is
called for from the Thana within which the person bound over
resides or from any other Thana. There is no objection to a
Magistrate enquiring whether the Police have any reason to
urge why a person should not be accepted as surety but an
nnfavonrable report should be treated not as evidence but as
an objection made by a party to the proceeding which should*
be supported by evidence.

Magistrates should not reject sureties except for definite
aod good reofions and unnecessary difiiculties should not be
thrown in the way of persons ordered to give securities for
good behaviour. In the present case the surety was rejected
on what was apparently little more than rumour. As in our
opinion the Magistrate should not have rejected the surety
merely upon the police report we set aside his order and direct
him to proceed according to law. We express no opinion as to
whether or not Ram Charan is a fit person to be surety*



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lU THE 0U1>H CASES. [Vot. VII

PRIVY COUNCIL.



On appeal from the Ccniri of the Jttdicial Commissioner of Oudh.



P. C. * Thakdr Ganbsh Bakhsh (Defmdant) r. Thaktjb Harihab
llAir23. Bakbsb (Plaintif).

Arrears of renty suit ly proprietor affainst under-proprietor
j'or — Interest on arrears of rent — Interest Act (XXXII of 1839)
—Indian Contract Act (IX of 1872) s. 73.



In a pfcvioBs If ligation between the respondent's father and the appellant's
prcdecessor-in-titlc a qompromiso was effected by an agreement on the basis of
the latter taking one-fourth of the estate and paying to the former half of the
Government revenue with the addition* of ten per cent, talukdari dues on the
Government revenue. The Settlement Officer made a decree according to the
terras of the agreement. Subsequently the respondent brought the present
suit against the appellant for payment ol rent. The Lower Courts decreed the
cUim and held that the respondent was entitled to interest.

Held, that interest was not payable on the arrears of the rent found due
from the appellant, and that neither the provisions of s. 73 of the Indian
Contract Act nor those of the Interest Act of 1839 were applicable.



Lord Davry. — The respondent, Thakur HarihariBakhsFi,
is the Talukdar of Sarora in Oudh, and the appellant, Thakur
Ganesh Bakhsh, is an under-proprietor on the same estate. The
questions raised by the present appeal are, whether the aj}pell*
ant is liable to pay rent jointly with one Gadadhar Bakhsh Singh,
or oach of them is liable separately for his own share only, and
whether he is liable to pay interest on arrears of rent, and, if so,
at what rate. The counsel for the appellant, however, admitted
that the first question was res judicata^ and the only question
left for the decision of their Lordships is as to the interest.

In the year 1863 litigation took place in the Court of tbo
SetUoinent Officer at Sitapur between Ganga Bakhsh, the father
of the respondent, and the then Talukdar on the one side, and
Bisheshar Bakhsh, his first cousin, and Uman Pershad, his

• Pves<Mir •.— L'jr.U Davcv and llobertsoii ami Sir Arthur \ViU»ii.



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Vol. VII.] THE OUDH CASEB. 117

paternal uncle, on the other. The claim is stated to have been Thatur
p e . r . .,1 Ganesh

tor recovery of possession of certain villages m possession of Bakhsb,

the latter parties, and the provision for thena of maintenance Thakur
in cash. A compromise was eflEected by an 'agreement dated BaUish'
the 4th May 1864 on the basis of Bisheshar Bakhsh and Uman
Pershad each taking one-fourth of the estate and paying to
Ganga Bakhsh half of the Government revenue with the addi-
tion of 10 per cent, talukdari dues on the present Government
revenue, or which might be fixed from time to time. The
Settlement Officer made a decree dated the 6th May 1864
according to the terms of the agreement, and directed the
parties to file a statement showing how they proposed to allot
the undivided villages. This was done and the Settlement
Officer made his final decree on the I4th December 1864.

Bisheshar Bakhsh died childless in November 1865, and
on the death of his widow Uman Pershad succeeded, after
litigation, to Bisheshar's share of the under-proprietary estate.
On the death of Uman Pershad the under-proprietary estate
again became divided between his sons Jung Bahadur and the
appellant, and on the death of the former he was succeeded by
his son Gadadhar Bakhsh. A partition was efEected between
the appellant and Gadadhar Bakhsh, and they obtained separate
possession of the villages allotted to them. Thenceforward
the appellant and Gadadhar Bakhsh maintained that they were
no longer jointly liable for the whole rent of the under-
proprietary estate, but only for their separate shares. The
respondent, on the other hand, insisted on holding them jointly
liable for the whole. The under-proprietors tendered their
shares of the rent and their tenders were refused, and suits for
the rent were brought by the respondent against the appellant
and Gadadhar in 1896 and again in 1898.

In the suit of 1896 the Deputy Commissioner by his
judgment dated the 8th April 1896 decided that the appellant
and Gadadhar Bakhsh were jointly liable for the rent, but that
the talukdar was not entitled to inlerept on ihe arrears. This



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1 18 THE OUDH CASES. [Vol. VIL

Thakur judgment seems toihave been affirmed on'appeal, but Mr. Ross
Bakhsh, stated that the judgment, though printed in the record was not
Thakur P^^ ^^ evidence. It is, however, immaterial because the
H^ihar judgment relied on as r^5yMti/(?a<a on the joint liability is that
oE the Deputy Commissioner.

In the suit of 1898, Mr. Chamier, the Second Additional
Judicial Commissioner, by his judgment dated 27th June 1898,
decided on appeal from the District Judge that the deed of
compromise of the 4th May 1864 was a contract to pay the
rent, and that the respondent was entitled to recover interest
by way of damages for the breach of that contract.

The present suit was also one for payment of rent under
similar circumstances. The Deputy Commissioner by his judg-
ment dated the 11th August 1898 held that the respondent was
entitled to interest following Mr. Chamier's judgment in the
previous case, and that the question of the joint liability of the
defendants was re$ judicata. The decree founded on this judge-
ment, which was dated the 18th August 1898, was, on the
19ch August 1899, affirmed on appeal by the present appellant
alone on the same grounds.

The judgment q£ the 27tfa June 1898 was not, and probably
could not have beee, given m evidence by the respondent as an
estoppel against the appellant, or in bar of the present suit.
Their Lordships, therefore, are not precluded from deciding
the question of interest on its merits.

In the argument before their Lordships the liability to
interest was maintained by the respondent as well on the
Interest Act of 1839 (Act XXXIl of 1839) as on section 73
of the Indian Contract Act, 1872, and on the other hand it was
contended that under section 141 of the Oudh Rent Act of
1886 (Act XXII of 1886) no interest was payable on arrears
of rent by the tinder-proprietor, and the decision of this Board
in Muhammed Melidi All Khan v. Mnhammed Yasin Khan
(1) was relied on.



(1) 26 Ind. Ap. 41. 1. L. R. 26 Cal. 523.



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Vol. VII.] THE OUDH CASES. 119

By section 141 of the Act of 18^6 it is provided that Thakur
when an arrear of rent remains due from any tenant, he shall Bakhsh
be liable to pay interest on the arrear at the rate of 1 per cent. Thakur
per mensem. And it was decided by this Board that an under- Bakhsh'
proprietor is not a tenant within the meaning of that section.
But there is nothing in the Act or in the decision referred to
which excludes any liability for payment of interest which the
under-proprietor might be under apart from the Act.

With regard to the Contract Act, their Lordships observe
that neither of the present litigantB was party to the deed of
compromise, nor have they, in fact, made any contract with
each other. The whole of the proceedings in the suit of 1863
are not before their Lordships, but the suit is said to have been
"decided on 6th April 1864," and the compromise which was
subsequently come to may have been executed for settling
details in order to carry into effect the previous decision of the
Settlement Officer. But, however this may be, it appears to
their Lordships that the terms of the agreement were carried
into effect by the subsequent decree, and the agreement was,
in fact, merged in the decree. In other words, the obligation
of the appellant to pay the rent is derived from the status of
under-proprietor, which was establifl&ed by the decree, and not
from the previous agreement, whidi furnished the materials
upon which the decree is b»sed. Their Lordships are there-
fore of opinion that this is not a suit for breach of contract
within the meaning of section 73 of tbeilndian Contract Act.

In order to avail himself of the provisions of the Interest
Act of 1839 the respondent must show that the rent was pay-
able by the appellant "by virtue of some written instrument at a
certain time." Neither the deed of compromise nor the decree
prescribed any time for the payment of the rent or contained
any terms from which the time could be ascertained. But it
was said that the Court should incorporate in, or read into,
one or other of these instruments the provision contained in
section 12 of the Oudh Bent Act 1886, that, unless otherwise



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120 THE OUDfl CASES. [Vol. VII.

r

Thaknr agreed, the rent payable to the proprietor by the under-propriet-
Bakhsh, or shall be held to become dae one month before the date
Thakur fixed for the payment o£ the revsaue on account o£ the village
BakMu ii* which the land 13 situate. It would be a novel proceeding to
read into an agreement a section in an Act subsequently passed.
Nor would it lielp the respondent in the present case. The
Interest Act was passed for the purpose o£ extending to India
the provisions o£ the English Act (3 arid 4 Will. IV., c. 42),
and the words above quoted are the same as those in the Eng-
lish Act. The English decisions en that Act may therefore be re-
ferred to as a guide in construing the Indian Act. In Duncomhe v.
The Brighton Club and Norfolk Hotel Company(V) it was decided
in the Queen's Bench (dissentiente Blackburn, J.) that the actual
day for payment need not be fixed in the instrument i£ the basis
of the calculation which was to make it certain was to be found
in the instrument itself. In The London^ Chatlianv, and Dover
Railway Company v. Tlie South Eastern Railway Cotnjxiny (2)
it was pointed out that this decision was inconsistent with a
previous decision o£ . the Exchequer Chamber in Merchaiit
Shipping Company v. Armitage (3) which appears to have been
overlooked by the learned Judges. In that case it was held that
it was necessary that the actual day for payment should
be fixed by the written instrument, and that was the view
expressed by Blackburn, J. in the case in 10 Q. B. Their Lord-
ships have not to say which o£ the two decisions they prefer, for
either of them is fatal to the argument of the respondent.

Their Lordships are therefore of opinion that interest is not
payable on the arrears of the rent found due from the appellant
and Gadadhar Bakhsh Singh, and they will humbly advise Hi:5
Majesty that the decree of the Court of the Judicial Commissioner
of Oudh dated the 19th August 1899 be discharged, and instead
thereof it be ordered that the decree of. the Deputy Commis-
sioner of the 18th August 1898, as subsequently amended, be



(1) L, R. 10 Q. B. 371. (2) 1802, 1 Ch. 120.

(3) L. R, Q. B. 9l».



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Vol. VII.3 THE OUDH GASBS. Ml-

varied .by omitting the direction thereio contained for payment J^^^
o£ interest on the snm thereby found due from the appellant Bakhsh
and Gadadhar Bakhsh Singh and that with this variation the Tbakur
decree be affirmed. Aatbe appellant has failed on one point and BiO^hsSu
succeeded on the other one> their Lordships will further advise
His Majesty that there should be no costs of the appeal ta the
Court of the Judicial Commissioner* And there will be no costs
of this appeal.



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m THE OUDH CASES. [Vol. VlL'

SECOND CIVIL APPEAL, No. 107 OF 1903. ♦



•Before Mr. Chamier.



1904. MusAMMAT Karima Bibi and others (Defendants) v. Sri

March 11. Gobind and others (Plaintiffs).



Res judicata — Judgment inter partes in a previous suit^
admissibility of — Code of Civil Procedure, s. 13 — Recognition
^of claim — Indian Evidence Act {I of 1872), s, 13 — Possession^
suit for.



The respondents brought a suit against tke appellants for posscasioA of some
lands in a Tillage on the allegation that they had acquired title to the land in
suit as well as the other land of the village by adverse possession. They filed
a judgment in a suit brought by their father for a declaration of his title to
the lands of that village, the title being based upon mortgages alleged to have
become irredeemable. The decision was that he was entitled to 22 bighas, and
the vest of the claim was dismissed. In the course of that judgment the
Court recorded an opinion that the plaintiff was proved to be in possession of
the whole land now in suit but dismissed the claim except as to the 22 bigbas
on the ground that the plaintiff though in possession had. not proved his title.
The judgment was inter parte*.

Held, that the question of possession of the land with regartl to which the
suit was dismissed was not res judicata.

A bare expression of opinion in a judgment upon a question of possession
which is not given <Jffect'to by the decree is not a recognition of a right within
the meaning of section 13 .of the Evidence Act and is not admissible in
proof of possession either at the date of the judgment or at any other time.



Tor Appellants:— Mr. Mu7ntaz Husain.

PoR Respondekts :— M. Muhammad Nasim.

Chamier, a. J. C. — This was a suit by the respondents

•Against the decree of M. Saiyed Ahmad Husain, Subordinate Judge, Sultan*
•pur dated »th January 1903 reversing the decree of M, Lukmanuddin Khan
Munsif, Sultanpur, dated l$fch September 1901.



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Vol. VIL]



THE OU&H CA&ES.



12»



against the appellants for possession of 4 bigbas 11 bis was
'which I nnderstand is part of a hamlet in manza Bablolpur
known as Para Bheem which consists of about 69 bigbas
6 biswas* The respondents' case is that they have acquired title
to the land in suit as well as the other land of the Pnrwa by
adverse possession. The first Court found against the respond-*
ents and dismissed their suit. On appeal after some inter<»
mediate proceedings which need not be referred to the Snbor*
dinate Judge delivered judgment on January 9th 1903 accept-*
ing the respondents' appeal. Nine-tenths of the judgment
is a mere copy of the pleadings. The judgment proper consists
of the last paragraph commencing with the words ^^ As fac
as I can understand." This paragraph is not at all clearly
worded but I understand the Subordinate Judge to holcf that
Exhibit A6 proves the possession &f the respondents and their
predecessors from about 1872 and that the shares of Razq.
^han and Kadir Khan two of the original proprietors of the
purwa were mortgaged to the respondents* father. Th^
Subordinate Judge then observes that there is no evidence thajt
that mortgage was ever redeemed, that three of the present
appellants have admitted certain mortgages made by Bandi an
Jieir of Baza Khan and that the appellants showed no original
title to the Purwa and had not shown that they were the mort-
gagees of any of the original proprietors. In appeal it is con*
tended that Exhibit A6 was wrongly treated as evidence
that the predecessors of the respondents were in possession
from 1872 onwards. Exhibit A6 is a judgment in a suit
)brought by the father of the respondents for a declaration oE
his title to the lands of the Purwa, the title being based upon
mortgages alleged to have become irredeemable. The decision
was that he was enUtled to 22 bigbas being the share of one
Mendai Khan (Mendi ?). The rest of the claim was dismissed.
In the course of that judgment the Court recorded an opinion
that the then plaintiff was proved to be in possession of the
whole of the land in suit, but dismissed the claim except as to
Mendi Khan's shares on the ground that the plaintifiE though
in possession had not proved his title*



Musammat

Earima Btbi

and others

Sri Gobind
azKl otbcr»



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124



THE OUDH CASES^



[Vol. VIIv



Mmammat
^arima Bibi
%nd others

r,
^ri Gobind
^adothm.



The jtidgment i^ hUer partei find Mr. Muhammitd Niaiutii
for the respondents oontends that itiKenders the question of
possession res judicata. 1 cannot accept this contention, for
tiie decree so far as it dismissed the respondents' father's suii
'was not based npon -the decision as to possession bnt was mado^
tn spite of it. Under these circnmstances the qnestion of pos^'
session of the land with regard to which the soit was dismissed
cannot be held to be ret judicata^ see Ram Bahadur Singh y.
Lttcho Keer (1). Next Mr. Mnhammad Nasim contends npo&
the authority of three cases which I am about to mention that
the judgment is evidence that plaintifb' father was in possess-^
ion. The first case is that of Ram Ranjan Chakerbati v. Rant
Ifarain Singh (2). In that case it was held that a jodgmeni
passed against the predecessors of the ilefendants for rent vi
the land in suit was admissible to prove that the defendants'
predecessors were in possession at the date ol that suit. The
d^cond case is that of Tepu Khan t. Rujani Mohan Dae (3)«
tn that case a judgment i!n a suit for possession was held to
be some evidence that the plaintifE in that suit was not in
possession and that the defendant was in possession and also a»
an instance within the meaning of section 13 of the Evidence
Act of a claim having been made for possession. The third
case is that of Dinomoni Chowdhrain v. Brojo Mohini Chowdhrain
(4) in which the Privy Council held that certain orders under
section 145 of the Criminal Procedure Code were evidence of
the following facts all o£ which appeared from the orders them'»
selves, namely, who the parties to the disputes were, what the
land in dispute was and who was declared entitled to retain
possession. Their Lordships said that the orders were relevant
to the question of possession as at the date of those orders. It
seems to me that all three cases are clearly distinguishable
from the present case. Here we have an opinion as to a
fact which was not given effect to, and did not form the
ground of the decision in the case. In all three cases referred

(I) I. L. R., n Calc, SOI. (2) I. L. R,, 22 Calo., 533.

(3) I. L. R.. 23 Calc. 522. (4) I. L. R.. 29 Calc. 187.



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VW; VIL]



THE OUDH CASES.



t%^



to it was either the deeisioti of a question oE Eaet ^ftt wm treated
as evidence, or the jndgment was admitted to show that the
claim was made or resisted. In other words the judgments
were admitted to pro Ve the making 0( a olaiQi) the denial of
a claim or the recognition of a claiip. It appears to me that
the plaint in the previous suit would be admissible to prove
the fact that the plaintiffs' father claimed to be entitled to the
land and to be in possession. PosMbly the judgmtat is
admissible for the same purpose but I cannot hold that a
bare expression of opinion as to the fact of possession which
was not given effect' to by the' decree Is admbsible in proof of
possession either at the date of the judgment or at anjother
time. Such an opinion is YHSl I thftik a reeognitum of a right
widiin the meaning of section 13 of the Evidence Act. As the
judgment has been used in an unjustifiable manner there musi
be a fresh finding oti the questions of foct. After what I have
said it is perhaps unnecessary to point out that the judgment'
cannot be used as evidence of the existence in fact of any
mortgages not found valid by the Cotirt. Under section 566'
of the Code of Civil Procedure, 1 return the record to the*
lower appellate Court for fresh findings upon the issues* ' Ten
days will be allowed for objections.-



Hoflaminat

Earima Bibi

and others

Sri Gobind
and others.



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126 THE OUDH CASES. [Vol. VII,



SECOND CIVIL APPEAL, No. 466 OF 1902.







1904. BefoTt Mr. Scott and Mr. Chamier.

Jany. 29.



Lala Bhaqwan Das (Vefendard} v. Shauzada Mibza
Masud Qapab {Plaintiff).



Customary right of privacy — Privacy^ $\dt to enforce
right of.



The plaintiff bronght a suit for remoTal of windows in the defendant*^
house which oTerlooked the female apartments of his house. A lane separated
the two houses. A custom was proved to exist by which the plaintiff was
entitled to the right of privacy which he claimed*

JSeldt that the plaintiff was entitled to the relief prayed for and the fact
that the houses of the parties were separated by public thoroughfare did not
prevent the existence of a custom of privacy which could be enforced »

[Gokal Prasad r. Badho, I. L. B., 10 All., 358 followed.]



Fob Appellant. — Mr. Nahi-uUlah.
Fob Respondent.— M. Sami-nUlah Beg.

Scott, J. C. — This is an appeal from the decree o£ the late
Subordinate Judge of Lucknow, dismissing an appeal from the
decree of the Munsif, South, Lucknow, ordering the appellant
to remove windows in the third story of his house which over*
looked the female apartments of the respondent.

The plaintiff alleged in his plaint that under a custom in
Lucknow city and in the neighbourhood of his house no one



•Against the decree of M. Mohammad Tajmldin, Subordinate Judge,
Lucknow, dated 19th August 1902, confirming the decree of Pandit Sitla Pcrshad
Bajpai, Munsif, (South) Lucknow. flatp«i 30th SepterabiH' 1901.



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Qadar.



Vot. VII.] THE OUDH CASES. 127

cSftn constrnct his house in such a manner as to intrude on the! gijaJwM Das*

privacy of the Udies occupying another house which had been ^'

long in existence. A lane said to be more than 30 feet in 'width Hirro MaHuU

separates^the houses of the appellant and the respondent and

both the lower Courts have held that a custom has been proved

by which the respondent is entitled to the right t)f privacy

which he claims ; that previous to the rebuilding of the appell-'

ant's house the respondent had enjoyed such privacy and'

that it has been invaded by the erection of the third story^

by the appellant with windows which overlook the apart-'

ments occupied by the ladies of [the respondent's family.

The appellant denied the existence of the custom alleged
by the respondent and pleaded that if such custom didordinarily
exist, it did not exist where the bouses of the parties are separat*
ed by a public road.

Of the grounds St appeal which have been filed the
appellant's learned counsel at the hearing contended only
that the custom set up by the respondent has not been
proved, and if it be held to have been proved, it cannot
be given efEect to as it is vague, indefinite, unreasonable
and opposed to public policy. As there is evidence on the
record which, if true, proves that a custom does exist in
Lucknow, under which a person who enjoys the right of privacy
is entitled to restrain any person from building a house close
to it so as to interfere with that right, I am of opinion that the
finding of the lower appellate Court must be accepted. It is
not denied that the respondent did enjoy such privacy before
the appellant erected his present house and that it has been
materially interfered with by the opening of the doors in
the wall of the third story which overlook the apartments in
which the ladies of respondent's family usually reside. In
Gokal Prasad v. Radho (1) Sir John Edge, C. J., referred
very fully to all the available authorities on the subject
and came to the conclusion that a customary right of



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