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the court executing the decree to determine the question as to
whether . the property specified in List B is cSmprised in the
decree or not Now, if the acts of the decree-holder are pro-
perly referable to the act done by the court executing the
decree through its officer on the 7th June, 1902, namely, the deli-
very of possession of the property specified in List A then
perhaps those acts might be deemed to have been done in
execution of the decree. But they were of such a nature that
they are not properly referable to the act of the court. The
decree-holder dbturbed the judgment-debtor's possession of,
or dispossessed him of, 55 houses or shops in Khayaliganj, not
having been put in possession of any houses or shops in
Khayaliganj by the court, of 28 shops in Nayagaon of which

the court did not put him in possession, ai^d of 7 shops in
Bazar Jahaulal of which the court did not put him in possess-
ion. These acts are so wholly different from what the court
did that they cannot ' be held to be referable to the act of the
court The act of the court merely afforded the decree-holder
an opportunity for doing what he did. The decree-holder there-
fore cannot be deemed to have obtained possession of, or
disturbed the judgment-debtor's possession of, the property
specified in List B through the court executing the decree.
Such possession was obtained or such disturbance of possession
took place simply and solely through the acts of the decree-
bolder. Consequently the court executing the decree bad no



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Vol. VIL] ' THE OUDH CASES 217

jurisdiction to determine whether the property specified in Khan

List B was comprised in the decree' or not It follows that it y*

had no jarisdiction under section 244 to entertain the jadg- Mubamraed

ment-debtor^s application. Khan«

It was suggested that if the application was not entertain-
able under section 244, the order of the Subordinate Judge
vras not appealable* But the Subordinate Judge's order pur-
ports to ha^sre been made nnder section 244, and is therefore
appealable*

The appeal is allowed and the order of the Subordinate
Judge is set asido. We think that the appellant is not entitled
1o any costs. He took the law into his own bands in taking
possession of the property in List B or disturbing the respond-
ent's possession of that property. We direct that the parties
pay their own costs la both Courts.



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218 ' THE OUDH CASES. ■ [Vot. VII.

FIRST CIVIL APPEAL, No. 9 OF 1902*



Before Mr. Sca^t and Mr. Chamter,



1903. Gang A Baehsh (Plaintiff) ^- Dalip Sik6h and others

Jany. 30. (^D^f^d^^i,),



Award made by Financial Commissioner tn dispute regarding
maintenance — Eules of the British Indian Association — Act I
of 1869, s. 33.



Against 5 ^, a Talukdar, A and 8 pnt in claims to be entitled to sbarcs
In the estate. Their claims were dismissed by the Financial Commissioner,
Mr. Davies, on the 27tb Angnst 1867 but he advised them to accept any main-
tenance awarded to them by the Committee of Talnkdars. Subsequently on
the 3th January 1869 the Financial Commissioner made the following award
in respect of their claims : —

**Tbe sharena in compliance with Mr. DaTies' order hare applied to the

Talulcdars' Committee The case has now come to me for disposal,

not judicially but as snperrisor of the Talukdars' proceedings A

who is childless will receive for his life a two annas share in the estate. S
and his beirs will receive in perpetuity a 3 annas share in tbe same estate. On
I he death of A his share will be divided equally, one anna will revert to 55
and bis heirs and successors, and one anna will go to 5 and bis successors.*'

A died and one anna accordingly went to 5 making his sbarc up to 4 annas
and one anna reverted to SS, 5 was pnt in possession oi land having a gross
rental equivalent to the profits of a 4 annas share

The plainti£!, the son of SS, sued tbe defendants, the descendants of
S alleging that the award of the 9th January 1869 was in the natniv
of an award for maintenance and must be read subject to tbe rules
of the British Indian Association framed in 1867 and that 5 having di&f
he was entitled under those rules to 25 per cent, of the gross rental
from the first generation of his heirs as rent payable by tbe defendanta
to himself. The defence set up was that the Financial Commifisioncr
was acting purely as an arbitrator and not as in any way connected with
the British Indian Association and that the rules of the Britii^ Indian Asso-
ciation could not be read into that award the effect of which was to confer a
share in absolute proprietary right on 5 and his heirs.



* Against tbe decree of Babu Bhamesbar Dutt, Subordinate Judge, Bae
Bareli, dated »Oth June 1894.



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THE OUDH gASES.



S19



Held, tlmfc tlm FioanciRl Cotomissioner ^ivhen making bis award of ittii
January 1869 was acting as a private gentleman and not in any oflScial capacity
anil that his award should not be treated as an award made by the British Dalip Sfngli
Indian Association or read subject to the rules of that Association. *"^ others.



Oang»

Bakhsh

r.



For AprBLLANT, — B. Basdeo Lai.
J?OR Rbspondents. — Mr. Lincoliu

Chamibr, a. J. C. — The circumstances which resulted in
the present case are stated fully in this Court's order of
May ICth last hy which four issues were remitted to the
Subordinate Judge for trial. Upon the issues so remitted that
officer has found (1) that the rules of the British Indian Asso-
ciation upon which the pIainti£E relies are those which arc
set out in the lithographed report of the Association for the
years 1865-1870 which is now on the record (2) that the
financial Commissioner when making his award of January
9th 1869 was acting as a private gentleman and not in
liny official capacity (3) that the Financial Commissioner
did not award an absolute proprietary right to Sheopal and
his heirs but gave them the land in lieu of maintenance only
and (4) that the award should not be read subject to the rules
of the Association.

To these findings both parties have filed objections in
terms of their pleadings. Both parties admit that the narrative
of events as given by the Subordinate Judge is correct except
(1) that on the application for revision of the order of February
22nd 1865 the Financial Commissioner did not remand the
suits for further investigation by his order of October 22nd
1866 (2) that the Association did not dispose of Amir's and
Sheopal's applications therefore it is not correct to say that
no application for maintenance was pending before the Asso-
ciation when the iqrarnama was written and (3) that the
Association was established in 1863 and not in 1865. These
inaccuracies are however of no importance.

On behalf of the respondents it was urged before us tlaat



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220 THE OUDfl CASfiS. [Vol. Vlt

B^^ the plaintiff had given no propef pfbof of the so^alled 'rules';
Dftli %' h ^^^^ ^^^ lithographed report is not admissible in evidence and
and others, therefore it vad unnecessary to go any further into the case.
But I think, that, as the existence of the 'rules' is part o£ the
history of the Province, the report which contains them and
vehich purports to b«ve been pirbMshed by the order of the
Association, may properly be received as sufficient evidence of
their terms. The copy of the report which has been filed wai»
supplied to the plaintiff by the Secretary to the Association
and bears the seal of. the Association.

The following is a correct translatioB of the ' rules ': —

IfEMORANDUll.

The Talukdars agree tor
make the following provision
for their relatives, provided
that their doing so is accepted
by Government as a final
disposal of the question iir
the classes of cases detailed
below :^

1. Shores in an umlivkled family A. Cases in which the

Aikl )oM poflsession al aoBexation. gvddee custom prevailed.

B. Oases in which the
estate was subject to division
but was never divided^

pROVISION^r

In class A the Talukdars will give exactly tbo same as al
annexation, but if a relative wishes it, he can receive the
equivalent of his former mainteimnco in land.

Class B. — The sharers each to receive 25 per cent, of tlie
gross rental of what would have been tbeir share if the estate
bad been divided, subject to payment in

2nd generation 25 per cent*

3rd „ 50 „



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Vpt. VII.]



THE OUDH ()AS£S.



221



EiTumple.
Nikasee (Rental)
2 Brothers (each)
Shares at 25 per cent« will be



2nd generation will pay
3rd „ for ever



II. Persons who were before
annexation in possession of a definite
provision in IfincI as maintenance
' OB
111. Got the same in money (or
food.



• .. 20,000.
... 10,000.
... 2,500.

[rent free 1st
generation.]
»•• ... 625#

1,250.

A. In some instances
relatives had been in separate
possession for several gener-
ations, in others for one
or two, or they were not in
separate possession, bat lived
with the Talukdar.



Pbovision.

Ist. Persons whoso land was always included in the
Taluka and never got separate kabulint.

This class will remain in possession of what they actually
had at annexation " rent free " dnring their lives subject to
payment in

2nd generation of 25 per cent, to Talukdar.

3rd „ 50 „ with no transferable right.

OB

such persons are to pay the Government jama and 10 per
cent, to Talukdar with heritable and transferable right.

If such person had previously paid rent for his land, if he^
now gets it rent free the holding will be proportionately
reduced^

2nd. — Persons whose land was excluded from Taluka when
the maintenance was given and who got separate habuliaU
in their own names, such will fall within the category of under-
proprietors under the Rules of Act XXVI, and their claims
will be adjudicated by the Courts.



Oanga

Bnkbsb

t.

Dalip Singh

and others.



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222 THE OUDH CARES. [Vol. VII

BakSh '" cases oE cash luaiutenauce, persons may get cash, as

«■• before, or the cash may be commuted into rent free land.

Dalip Singh mi m i i i

imd others. Ihe lalukdars are now makmg settle-

ment on the above principles. The dis-
posal o£ cases will differ in some instances
at the pleasure of the parties, and as a
rule the relative will prefer a fixed allow-
ance instead of any change in the next
generation ; but it will be understood that
in any of the classes of cases mentioned
above, the Talukdars Avill give up to
what 18 now proposed. If the relative
refuses, he can get nothing in court as
the law stands. If a law is at any time
made, then the awards given by the
Talukdars in favour of their relativee will
not be binding. The Talukdars solicit
consideration on these points,and it cer-
tainly appears that, if they make these
concessions, it would be very desirable
and would aid in the adjustment of the
claims, if the impress of Government
sanction was given to the whole.

NoTB. Class JI, as the Chief Commis-
sioner is aware, is in abeyance. There were
only four cases and one has been settled.
(Sd.) L. Barrow.
OJ^g. Financial Commissioner

Oudh.
These terms were settled before I left Lucknow. Under
* all the circumstances they are, I think, as liberal as we
can expect to obtain for the relatives of the Talukdars, and
more favourable to them than could have been hoped a year ago.
I think it is desirable that they should be communicated to
Government for an expression of its opinion.

Fyzabad, \ (Sd.) R. H. Davies,
September 28th 1867. J Off/. Chief Commissioner,



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Vol. Vir.l



THE OUDH cases:



223



The plain tifiE's contention in the present case involves two
propositions, namely, that all awards made by the Association
should be read subject to the 'rales' and that the award made
by the Financial Commissioner in the present case should be
treated as an award made by the Association and therefore also
read subject to the *rules.'

Tliereis nothing in the 'rules' themselves which in any way
suggests that they should be read into all awards made by the
Association, as the plaintiflf contends. The last paragraph oE the
'rules' shows tliat they were not expected to provide for all
cases but were intended rather to show the principles by which
the talukdars had been guided in the past and intended to
be guided in the future, and the extent to which they were
prepared to make provision for their relatives. The same
paragragh shows that the Association expected that claimants
MTOuld as a rule "prefer a fixed allowance instead of any
change in the next generation" in other words that more often
than not the rules would not be acted upon. Unless it be in the
statement of the Financial Commissioner that the case came
before him " as supervisor of the Talukdars' proceedings" there
is nothing in his award which in any way suggests that it
should be treated as an award made by the Association or read
subject to the 'rules.'

It is unfortunate that beyond the lithographed report of
the Association and the meagre reference to the subject in
s. 33 of Act I of 1869 there is no official record extant of the
duties of the Association or of Colonel Barrow in relation to
the Association and nothing is known of the procedure, if any,
prescribed for the Association except what may bo gathered
from the files of the cases disposed of by the Association.
The history of the province supplies, I think, a sufficient ex-
planation of the connection between Colonel Barrow and tho
Association and of the reasons "why the awards of the Associ-
ation were submitted to him for approval. In 1866 a settlement
of a number of outstanding questions regarding under-propriet-
ary and tenant rights was arrived at by Sir John Strachey in



Gangd

Bakbsh

r.

Dalip Singh

and others.



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2£4 THE OUDH CASES. (Vol. VII

Bakh*h consnitation witli representative talnkdurs, Colonel Barrow and
f. other officials. This settlement was soou fotind to be not snffi*

Sd^ofhere** ciently comprehensive and Sir Jolm Strachey, Colonel Barrow
and the talukdars made farther proposals for dealing with what
were considered to be hard cases^ Even then the cases of
relatives of taluqdars remained unprovided for* The taluqdars
were anxioas to make equitable arrangements for their relat«
ifls without interference on the part of the Government and
made proposals which were 'approved by the Chief Commiss-
ioner and Financial Commissioner. These proposals are none
other than the so-called ' rales' of the Association. Colonel
Barrow having as Financial Commissioner of Oudh been closely
associated with the taluqdars in framing rules for the protection
of other persons, whose rights had been affected by the confiscat-
ion and subsequent settlements, would very naturally wish to
know how the talukdars were keeping their promise to provide
for their relatives and they on the other hand, as the * rules*
themselves show, were apprehensive of legislative interference
and ino doubt felt that they would be protected from such
interference if the Financial Commissioner approved of their
awards.

This is I think the explanation of the fact that Colonel
Barrow did as he says '' supervise" their proceedings. But in
order to arrive at the oondusion that the Association or the
Financial Commissioner intended that their awards should be
read subject to the ^rules' one requires something more than the
' rules* which as already stated suggest nothing of the sort.

In the first place the plaintiff contends that as the taluk-
dars undertook to provide for their relatives in a certain way
and according to certain principles and then proceeded to make
awards of maintenance it should be presumed that their
awards were intended to be subject to the rules. In my
opinion no such presumption should be made. The so-called
' rules ' show that the talukdars expected that cu a rule the
relatives would prefer a fixed allowance instead of any
change in the next generation and I consider that before it is



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Vol. VIL]



THE OUDH CASES,



M



presumed that awards were intended to be read subject to the
rules it should be shewn Uiat the Association ordinarily at least
decided the cases that came before them according to the rules.
The plaintiff has dot attempted to show this. The plaintiff's
ccmtention postulates that the provision about the pa}rment of
the rent in the second and third generations applies to all kinds
of maintenance. An examination of the rules shows that thia
is not so. The provision relates only to class B in I and ta
certain persons in II and III.

Next the plaintiff relies upon the judgment of a former
Judicial Commissioner in the case of Surat Sinffh v. Jatoahir
Singh (!)• In the course of his judgment Mr. Capper said,
" From my official position at the time I cannot but have some
^' personal knowledge of the working of these committees and
^' I feel sure that I shall not err in definitely interpreting the
«« 'rules' as intending that unless ^the contrary b expressly
*^ stated in the award, whether the maintenance consisted of
*' land originally or of cash now converted into land on an assum-
'' ed total rental, the then first incumbent should hold rent-free
*' for life, the next generation should pay 25 per cent, or half
«« the ordinary rent, whilst in the third generation 50 per cent.
^' or the ordinary rent should be leviable by the talukdar.^

This remark does not seem to me to have been necessary
£or the disposal of the case before him for the award which he
bad to consider was in form a recommendation (subsequently
approved by the Financial Commissioner) that the claimants
ehould receive certain maintenance '* according to their 'rules' '*
t. e. the rules of the Association upon which the plaintiff now
relies. So that in that case there could be no doubt that the
award was to be construed along with the ^ rules^' I consider
that the plaintiff is not entitled to use Mr. Capper's remark as
evidence in the way in which he seeks to use it. The Government
Gazette shows that Mr. Capper was on duly in Lucknow as
Commissioner or Deputy Commissioner from October 16tfi

(I) Select Case No. 12 decided on Jannaxy 13th 1881.



Oanga
BftkhBh

V,

Dalip Singh
and others^



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226



THE OUDH CASES.



[Vol. VII.



Gangs
Bakhsh

V,

Palip Singh
and others.



1866, tin May 1st 1868 bat during that time be would have
bad no direct official connection with tbe Association in the
matter of tbe awards. He officiated as Financial Commidsioner
of Oudb from September 3rd 1869 till October 17tb 1869 but the
committees of tbe talukdars were then no longer sitting to make
awards of maintenance. Mr. Capper's dictum in Select Case No.
42 was pronounced 12 years after tbe awards were made and
even if it can be made use of by tbe plaintifiE, it is not in my
opinion sufficient authority for the proposition that all awards
made by the Association should be read subject to the ^rules'
and it is no authority for the proposition that the Financial
Commissioner's award in the present case should be read
subject to these rules. Counsel for tbe plaintifiE could not
refer us to any other case in which the question whether the
Association's awards should be read subject to the rules has
been raised. It was for the plainti£E to show that all awards
made by the Association should take effect subject to the ^ rules.*
In my opinion he has failed to do so. On the contrary I
consider that the 'rules' themselves show that the provision on
^hich the plaintiff relies was not intended to apply to all
awards.

Assuming however that awards made by the Association
or by Colonel Barrow in such cases should ordinarily be read
subject to the rules I think that the terms of the award made
by Colonel Barrow in the present case show that he did not
intend that the rules should be applied to it. In the first place
tinder the rules Sheombar was entitled to maintenance but
Colonel Barrow gave him nothing. The provbion made for
Amir Singh is not in accordance with the ' rules' nor is that
made for Sbeopal Singh and bis heirs. Colonel Barrow says
that Sbeopal' Singh and his heirs shall receive in perpetuity a
3 anna share in the estate and another 1 anna share on
the death of Amir Singh. If the contention of the plaint*
iff be correct the sons of Sbeopal Singh will get not a
four anna share but a smaller share and his grandsons a
fjtm smaUer share, The plaintifif contends that if tb^ * irnle§*



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Vol. Vri.]



THE OUDH CASES.



in



are not applied to the aN^ard Slieopars descendants will enjoy
more than a fonr anna share because the plaintifiE has to pay
the revenue assessed upon their land which will probably be
enhanced at each 'successive settlement. This may or may not
be true. It is impossible to say definitely without ascertain-
ing to what extent the profits o€ the respective shares of. the
plaintifiE and Sheopal's descendants to have increased since the-
award was made. Indeed it may be that Sheopars heirs will be
losers by the arrangement that was made. Even if the contention
is well founded this is no reason for placing a forced construc-
tion upon the award. The plain tifiE's predecessor should have
objected to the way in which the award was worked out. This
Court is not asked to remodel the award or alter arrangments
which have been made nor could it do so.

In my opinion the plaintifiE has failed to prove that the so-
called rules of the Talukdars' Association apply to the award
made by Colonel Barrow and I would dismiss this appeal
with costs.

I ought perhaps to add that at the hearing of the appeal
we sent for twelve files of cases decided by the Association and
examined them in the presence of Counsel in order to ascertain
whether they threw any light on the question. The files were
taken at random from the files of cases decided by the Associa-
tion which are kept in the record room of this Court. The
awards in the cases which we got out did not refer to the
* rules.' Thinking that an examination of 12 files only might
be misleading I have since the hearing of the appeal examined
all the awards of the Association which are in our record room.
The report of the Association which is on the record shows
that there were altogether 434 claims to maintenance, that 104
were rejected summarily as not being within the cognizance
of the Association, that 156 more were dismissed on the merits
after enquiry or for want of prosecution, that 31 claimants
were confirmed in the possession of the maintenance what they
were then enjoying and awards of maintenance were made in
^vom of 143 persons* X b^ve examined these awards and in



Oanga

Bakhsh

t,

Dalip Singh

and others.



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ss»



TH£ aUDH CASES.



[Vou VIL



Ganga

Bakhsh

r.

Daltp Singh

and oth«fs



Tiew o{ the statemeDt made by Mr. Capper ii^ Select Case
No. 43 I tbink H right to say that I found that in 15 oaMs
the award is expressly declared to be snbject to the * rnW
(qawaid) or eoBtains a provisioo that 25 per (Sentnm shall be
paid by tire BKtintenaDce4iolder in the eecood generation and
50 per OMitum thereafter. In the rest of the awards b
tiie records (a few seem to be missing) ^re is no
reference to the *rules^ whatever, aod to some at least of the
awards it wotild be impossible to apply the ^mles.* In some
cases it was eiidently intended that the maintenance awarded
should be eiijoyed for one life only. I do not desire to base
my judgment tpon this somewhat cnrsory examination of the
files for I consider tluit if either party wished to rely on these
files he should have brought them before the Court in a regular
manner. The burden of proof was upon the plaintifiE and in
my opinion he has failed to discharge it

SooTT, J. C. — ^I agree with my learned colleague and would
make the same order.



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Vot.. Vll.l THE OUOH CASES. 229

EXBUUTluN OF DECREE APPEAL, No. 34 OF 1904.*



Before Mr, Chaniier



1904.
Mohammed Akbar Khan (Decree''liolder)'V. Nawab Shah July 19.

Ara Bkgam and others (Judgment-debtors)



Execution of decree — Application for execution by benamldar
v>f purchaser of riglUs of decree-holder-^Right ofjudgment-^ebtor.



The appellant •claiming to have purchased the rights of the original decree-
bolder applied to tbc Court for rccogiiition of the assignment of the decree



Online LibraryOudh. Court of judicial commissioner.om old caThe Oudh cases. Containing cases decided by the Court of the judicial commissioner of Oudh .. → online text (page 19 of 38)