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peace. This was the view of the Allahabad High Court in Queen
Empress v. Lachman (1), and Counsel for the applicant has
not been able to cite any decision in support of his contrary

I dismiss this applioation for revision.
(1) W. N. 1886, 181.

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340 THE OL-l>H CASES. [Vol. VII.

RENT APPEAL, No. 31 OF 1904. *

Before Mr. Chamier,


May 19. Sheikh Talib Ali (Defendant) v. Basant Rae and

another (Plaintiffi).

Svit for rent of land occupied without consent of landlord"^
Question of title — Jurisdiction of Revenue Court as to question of
title raised in a rent suit — Oudh Rent Act^ s. 127 — Entries in
Government record not conclusive proof of title.

It is the daty of a Reyenue Court in Oadh to decide everj qaestion raised
in a rent soit an adjudication on which is necessary for the decision of the
suit, although its decision may not be l^inding upon the parties in the CiTil

For Appellant. — Mirza Mohammad Fasih.
For Respondents. — B. Har DayaL

Chamibr, a. J. C. — ^This was a snit nnder section 127 of
the Oudh Rent Act. The Assistant Collector in the first instaqce
passed a decree in favour of the plaintifEs. On appeal
Mr. Denman pointed out that as the defendant denied the title of
the plaintiffs it was necessary for the plaintiffs to prove that
title, for only a landlord can maintain a suit under section
127, The suit was remanded. Parenthetically I may remark
that issues should have been remitted under section 566 of the
Code of Civil Procedure as the first Court did not dispose o!
the suit upon a preliminary point However, on remand the
first Court found that the title of the plaintiffs was proved, and
again passed a decree against the defendant. On appeal the
Additional Judge agreed with the first Court that the defendant

* Against the decree of W. F. Rirton Esq^ Additional Jadge, Lucknow,
dated 17th December 190S modifying the decree of M. Barkat-ullah, Deputy
Collector, Lucknow, daded Mth July 1501.

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Vol. VII.]



was proved to have taken possession o£ the land forcibly, Sbeikh Talib
and he made the following remarks upon the question of title : — r.

'' As the suit was one filed on a six annas Court-fee stamp and another.
" it seems to me a pity that the parties were not directed tcf^^
" file a regular suit in a Civil Court to determine the question
^' of title, and it is not too late for the parties to do this, for
'^ although half a day of my time has been wasted hearing
*^ arguments as to title I consider the evidence is too slender
*' to settle this satisfactorily, much of the evidence being very
" contradictory." The learned Judge was in error in supposing
that a Revenue Court in Gudh is not bound to decide a question
of proprietary title necessary for the disposal of a rent suit.
Mr. Burkitt's decision in Rent Act Ruling No. 59 dated March
1891 has been followed in a large number of cases ; and it is
now quite settled that it is the duty of a Revenue Court in
Oudh to decide every question raised in a rent suit an adjudi-
cation on which is necessary for the decision of the suit ;
although its decision may not be binding upon the parties in
Civil Court. ^ ♦ ♦^ ♦♦♦♦**♦ ♦

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Before Mr. ChamUr.

1904 MusAMMAT Nazib Sahiba (Defendant) v. SitabaKhanam

Nov. 3. (Plaintiff).

Reffistration Act, s. 50 — Pri&nty of mortgage executed
mbsequent to^ over deed of gift execvted prior to passing of
Registration Act.

Section 50 of the Regietratlon Act ought not to be construed with rctrofl-
pective effect so as to disturb titles acquired at a time when there was no Inw
of registration in toxoQ in the Province. It was KM, therefore, that a
mortgage-dcod executed and registered in 1892 could not be allowed to
prevail against an unregistered deed of gift executed in 1865 before the passiog
of the Registration Act.

For . Appbllant— M. Mohammad Nasim and M. Zahur
Ahmad. •

Fob Respondent. — Shiekh AH Abbas ixniiL M. Wazir Hasan.
Chamier, a. J. C. — In this case the plaintifE's husband
Abid Ali, mortgaged the house in suit to the defendant in 1892.
The defendant obtained a decree for sale upon the mortgage
and the plaintifiE brought this suit for a declaration that Abid
Ali had no right to mortgage the house to the defendant in-
asmuch as he had transferred it to her by a deed of gift dated
August 17th, 1865. The learned Judge has found that the deed
of gift relied upon by the plaintifiE is genuine, that she has been
in possession of the house since her marriage and that the
deed of mortgage to the defendant although registered does not
take effect against the deed of gift which was not registered.

In appeal to this Court three points have been pressed.
First that no such possession as is required by the Muhammedan

* Against the decree of H. D. Griffin Esq., District Judge, Lucknow, dated
30th May 1904, reversing the decree of Pandit Soraj Narain^ Subordinate Judge,
Lucknow, doted 6th August 1903.

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YoL. Vtt]



Law passed ta the plaintiff nrider tHe deed of gift* Secondly
tliat the defendant is entitled to* protection nnder s. 41 of the
Transfer of Property Act and thirdly that nnder s. 50 of the
Registration Act of 1877 the deed of mortgage takes effect
against the unregistered deed of gift. I decline to considei*
the first point as it is not taken in the grounds of appeal and
was not taken in this form in the Courts below. As to the
second point it is sufficient to say that the plaintiff was living
in the house with her husband and there is nothing to sboW
that he was with her consent the ostensible owner of the house4
Moreover the learned judge has found that the plaintiff was not
aware of the execution of the deed of mortgage by her husbands
With regard to the third point it is contended that the case
comes within section 50 of the Registration Act. At first sight
it seems to come within this section but in my opinion the
section ought not to be construed with retrospective effect so
as to disturb titles acquired at a time when there was no law of
registration in force in the Province. Some rules were made
by the Judicial Commissioner but they had not the force of law.
There are cases in which it has been held that a document regis-
tered under the Act of 1877 takes priority over a document
which might have been but was not registered under the Act
of 1864 or the Act of 1871 but those cases are distinguishable
from the present case, for both the Act of 1864 and the Act of
1871 contained a provision giving priority to registered docu-
ments over other documents which might have been but were
'not registered see Kota Mvthanna Chetti v. Aliheg Saheh (1 j.
But except in one case it has never been held so far as I
know that a document registered under the Act of 1864 or that
of 1871 or that of 1877 takes priority over a document which
was executed before the passing of the first of those Acts. The
one case to the contrary is that of Soodharam Bhuttacharjee t«
Odhoy Chunder Bundopadhya (2), but there the circumsianceA
were peculiar. There was a conflict between an unregistered
mortgage of 1859 and a registered sale-deed of 1867 followed
immediately by possession. From the judgment it seems thai

Nastr SahilM



(1) I. L. R»6Mad., 174.

(2) 10B.L.Bm360

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Muflaimnftt the Court attached tnnob impottance to the £act that the pnr-
jKasir Sahiba ^

V. chaser had obtained possession under his deed and had held it

itkL^!?]!!!. ^P ^ ^ ^^^^ 0^ ^^^' I^ seems to me that there is a clear
distinction between giving priority to registered deeds 0T9r
deeds execnted at a time when the law declared that registra-
tion conferred priority and giving priority to registered deeds
over deeds executed at a time when no such law was in force.
The anthorities I think support me in holding as I do that the
defendant's mortgage in the present case cannot be allowed to
prevail against the deed of gift in favour of the plaintiff. I
dismiss the appeal with costs.

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[Vol. yn. , - THE OUDH CASES. 345


Before Mr. Chamier.

MusAiOtAT Basanti {Plaintiff) v. Badri {Defendatd). 1904.
Mat 33«

RevietOh^Admission of application for review^ objection taken
tOy in appeal — Terms of the order admiUing the review^ discretion
of Court as to— Irregular procedure in hearing case in review^
power of appellate Court in dealing with — Code of Civil
Procedure^ ss. 623 and 626 — Court-fee^ how calculated when
appellant seeks to escape payment of a sum decreed against him
and to recover a sum from respondent.

When tb« admiMion of an application for reyiew of judgment is not
challenged on any of the gronnds stated in s* 626 of the Code of Civil Procedure,,
it cannot be challenged in appeal at all.

A Jadge who hears the case in review is not bonnd by the terms of the
order admitting the review whether the order was passed by himself or by
another Judge, and if the procedure adopted by him in hearing the case ia
review is irregular it is the duty of the appellate Court on appeal to decide the
case upon its merits.

[Bha^toamdeen Doobey y, Myna Bass (1) Saindl Ranehhod y. Bullahk
Drarka (2); Tkaeoor Protad y. Baluek Bam (3) and Hurhatu Sahye y.
Thakoor Punkad (4) followed].

When an appellant in his memorandum of appeal seeks to escape payment
of a sum decreed against him and also to recover from the respondent a sum/
named therein the Court-fee should be calonlated on tho sum decreed against
him plus the sum sought to be recovered.

Fob Appbllant. — ^The Hon'ble BaJm Sri Ram.

Fob Bbspondbnt. — Mr. Jacob.

Ghamibb, a. J. 0. — ^This was a suit for redemption of a

* Against the decree of B. Lindsay Esq., District Judge, Sitapur, dated 10th
June 1903 upholding the decree of Babu Bam Prasad, Subordinate Judge, Kheri,
dated 30th June 1902.

O) 11 Moo. I. A. 467. (2) 10 Boi^ H. C Bep. 860.

C3> 12C.L.B.64. (4) I. L. B., 9 CaL, 209.

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[Vol. Vn.





share* in a village mortgaged by the plaiatiff to the
defendant by two deeds dated September 23rd 1886 and
November 25th 1890. The Subordinate Judge (Babu Grish
Chandra Bose) decided that the pkinti£E was entitled to
redeem on payment of Rs. 1639-9-10^ on account of the
first deed and the principal and interest due on the second
deed. The decree which he signed did not agree with hii
judgment but this is not now material. Both parties applied
for a review of the judgment and notices were issued by
Babu Grish Chandra Bose. The applications came on for hearing
after that officer had left the Court and were disposed of by
Pandit Bakht Narain who wrote, " As there is an error in the
*' account made by the Court therefore review is accepted ^

*' so far only as the settlement of account is concerned

" No separate order is required for the review filed by the
" defendant as whole account of the mortgaged property will
** be made. Case for May 11th next.'*

Before Pandit Bakht Narain could take up the case again
ho left the Court and was succeeded by Babu Ram Prasad
who held that the order passed by Pandit Bakht Narain entitled
him to -go into all matters relating to the accounts and he
proceeded, practically, to retry the whole case, acting upon
evidence which Babu Grish Chandra Bose had rejected, pre-
paring a new account upon an entirely new basis and so forth.

He found that nothing was due from the plaintiff to
the defendant but on the contrary a sum of Rs. 986-3-6 was
due from the defendant to the plaintiff and a decree was passed
to that effect. The defendant appealed to the District Judge
upon eleven grounds of whicii some challenged the admission
of the plaintiff's application for review and of the proceedings
held thereon and others related to the way in which the accounts
had been mad^ up.

The learned District Judge held, and I think quite rightly,
that as the admission of the plaintiff's application for review
was not challenged on any of the grounds stated in section 626
of the Oo<le of Civil Procedure it could not be challenged in
appeal at all.

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Vol. Vn.]






Tlie learned Judge then went on to hold that Babu Ram ^^^^^^
Prasad was bonnd by the order admitting the review but had
travelled tar beyond it and had practically retried the case. I
think that it is beyond question that Babu Ram Prasad went
much farther than Pandit Bakht Narain intended. I will deal
presently with the question whether Babu Ram Prasad was
right or wrong in re-opening the whole case.

The learned District Judge then took up the two applica^
tions for review, dealt with tlie grounds taken in them one by
one and found that not one of them was a proper ground for
a review of judgment. This part of the learned Judge's judg-
ment conclades with these words, ^^this being so I am of opinion
^ that the Court below confining itself to the investigation of
" matters raised by the parties in their applications for review^
" matters to which its enquiry was limited on a proper construe*
'^ tion of the orders of Pandit Bakht Narain should have found
" that the account as prepared by Babu Grish Chandra Bose
'' was correct and ought to stand.'' He then accepted the defen-^
dant's appeal and restored the first decree.

The plaintiEE appeals upon nine grounds which may bef
reduced to three, namely (1) that the learned Judge has mis-
construed Pandit Bakht Narain's order (2) that whatever the
meaning of that order was Babu Ram Prasad had power to go
into the whole case and (3) that even if Babu Ram Prasad had
not such power and even if the grounds taken in the plaintifiE's
application for review were not admissible as grounds for
review the learned District Judge should have dealt with the
case on its merits on the record as it stood before the applica-
tions for review were admitted.

I have already expressed my opinion upon the first of these
grounds. The second ground raises the question whether a
Judge who hears a case in review is bonnd by the terms of
the order admitting the review. There are several cases which
favour the view that the Judge is not so bound — see Bhagwandeen
Doobey v. Myna Baee (1) a ease under section 378 of the Code
(1) U Hoo. I.A., p. 487 at p. 4*8. ~- ■ - • ~^

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M^jwaat of 1859 which does not differ materially from section 626 of
V. the present Code except that the latter requires the Judge to

®**^' State his reasons for allowing the application (as to which
see Indian Law Reports 27 Calcatta 333, P. C.) Sainal
Ranchhod v. JDullabh Dvarka (1) Thacoor Prasad v. Baluck
Ram (2), and Hurhans Sahye v. Thakoor Purshad (3). The
only case in which. a definite opinion to the contrary has been
expressed as far as I am aware is Dhuronidhur Sen v. The Agra
Bank (4) where Garth, C. J. in the course, of the argument
said that the applicant was limited to the points on which the
rule granting the review had been allowed.

Section 630 of the present Code evidently contemplates
a re-hearing of the case and I am inclined to the opinion that a
Judge who hears a case upon review is not necessarily confined
to the points taken in the application any more than a Judge
hearing an appeal is confined to the points taken in the memo-
randum of appeal (see sections 542 and 625, Civil Procedure
Code) and that a Judge who disposes of a case upon r^
view is not necessarily bound by the terms of the order
admitting the review whether that order was passed by himself
or by another Judge. It is not really necessary to decide those
points because on the third ground of appeal I am bound
by the decision of their Lordships of the Privy Council in the
case of Bhugwandeen Doobey v. Myna Baee cited above to hold
that even if the procedure adopted by Babu Bam Prasad was
irregular it was the duty of the District Judge to decide the
case upon its merits. Their Lordships said, ** They are also of
^^ opinion that even if the Court below was wrong in its proce-
*'dure its miscarriage ought not to prevent this Committee from
" deciding the question touching the disposition of the movable

" estate on its -merits the objection therefore is

^^ purely technical and the result of yielding to it might be to
^^ place the respondent at a very unfiur disadvantage. She had
*^ a right id appeal to Her Majesty against the whole or any

(1) 10. Bom. H. 0. B. 868; (2) 12 C. L. R. 64. .

(3) I. L. B. 9 Cia. 20^. (4) I. L. B. 5 C^ 86.

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" part of the first decree of the Sudder Court Sh^ Masammst

" was relieved from the necessity of appealing by obtaining ^^^^
" a final decree in her favour as to the whole of the property Badii.
" whether movable or immovable. If this objection were to
^^ prevail there could b^ po final determination of the question

" as to the former on its merits They are of opinion

*^ that it is competent to the respondent who has

'* been brought here on appeal to maintain if she can the decree
" which is under appeal by shewing that it is right upon the
« merits."

These observations apply closely to the present case and I
feel bound to hold that the plaintiff who was the respondent
in the District Court was entitled to maintain the decree which
she had obtained by shewing that it was right upon the merits*

It was suggedted that in the view which I have adopted
the right to complain of the admission of a review is of no
value. I do not think so. Section 629 permits an objection to
be taken at once by an appeal against the order admitting the
review or in the appeal against the final decree* In some caseiS
the right to object is of no practical value unless it is taken
at once but in others as where fresh evidence has been taken
at the re-hearing an objection taken in the appeal against the
final decree will if successful result in the exclusion of the
fresh evidence.

I think that many passages in the judgment of the learned
Judge, particularly the passage which I have quoted, show that
he did not dispose of the case upon its merits. He considered
the grounds taken in the application for review as grounds for
review not as grounds of appeal and he considered no question
except those raised by the applications for review.

I might possibly remit issues under section 566, Civil Pro-
cedure Code, but under the circumstances I thiok that I should
treat this case as having been decided upon a preliminary point
for the merits have not^ really been touched. I accept the
appeal, set aride the decree of the lower appellate Court and
remand the case to that Court for trial according to law. The

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[Vdt. Vll.



parties are anxious to have the accounts made up to the latest
possible date. Possibly the learned Judge may be able to
arrange for this by appointing a Commissionldr to make up the
aocoonts or otherwise.

There is I think a deficiency in the conrt-fees paid in
this Court but as I am remanding the case under section 562,
Civil Procedure Code, and the couri-fee will be refunded I do
not think it pecessary to go through the form of levying the
amount of the deficiency.

I notice that the court-fee paid in the lower appellate
Court is deficient. Babu Ram Prasad awarded Rs. 986-3-6 to
the plaintiff. By his appeal the defendant sought to escape
payment of this sum and also to recover from the plaintiff
before redemption a sum which is stated in the memorandum
of appeal to be Rs. 2,239. Tha court-fee should therefore
have been calculated on Bs. 986 phi$ 2,23^9 not upon the latter
sum only. The deficiency must be made good brfore the appeal
is re-heard. The ooeke of the partiee in this Court will be costs
in the cause.

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Vol. VII.] THE OUD& CASES. "^ 351


Before Mr. Seoti and Mr. Chamier.

SURAJMAN (Defendant) r. BhagWAK Singh (Plaintiff). 1904.
Nov. 15*

Suit for value of crops distrained for arrears of rent due to
landlordy hy sub^tenant against tenant — Damage caused by reason
of conirad— Transfer of PropeHy Act (IV of 1882), s. 108
cl (c) — Cause of action.

The respondent was a sub- tenant of the appellant. The landlord distrained
the crops of the respondent for arrears of rent doe by the appellant for 1807 F.
on the Ist April 1900. The respondent brought the present suit for value of
the crops distrained.

Held^ that as there was no damage caused to the respondent by reason of
some contract express or implied under s. 108 cl. (c) of the Transfer of Property
Act nor the respondent bad at the time of the distraint paid the rent reserved
by the sub-lease for the period for which the arrears realized by the distraint
were due Bor the landlord who had interfered was a representative of the
lessor, the respondent had no cause of action.

Fob Appellant — M. Wazir Hasan.

Scott, J. C. — ^The facts of this case are that the respondent,
Bhagwan Singh, was the sub-tenant of Sarajman, the appellant,
and on the 1st April, 1900, his crops were distrained and
removed by Bishnath, the landlord, for arrears of rent due by
appellant for the year 1307 F. A decree for the value of the
crops distrained was obtained by the respondent against Bish-
nath in the Bent Court but the suit was finally dismissed on' the
20th August 1903, by this Court in appeal. On the 19th
October 1903, the appellant obtained a decree against the respon-*
dent for arrears of rent on account of the years 1308-^1310

^Against the decree of Pandit Sitla Pershad Bajpai, Subordinate Judge, Bai
Bareli, dated 30th April 1904, reversing the decree of M. Abdul Ghani, Muusifi
Dalman, dated 30th January 1901.

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Snrajmatt In the present suit the respondent claimed Rs 143-2-9 on

Bhagwan account of the value of the crops distrained and the costs

fiiDgb, incurred by. him in the suit against Bishunath amd the cause of

action is stated in the plaint to have arisen on the 20th August,

1903 and the 19th October, 1903.

The Court of first instance dismissed the suit on the ground
that it was barred by limitation but the Subordinate Judge
on appeal considered it as one "to enforce the defendant's
liability for the benefit, derived by the sale of the plaintiflE's pro-
perty" and held that art. 120 of the second schedule of the
Limitation Act provided the period of limitation which is applic-
able. He granted the plaintifiE a decree for Rs 66-10-3*

The respondent has not appeared to support that decree and
for the appellant it is contended that the plaint discloses no cause
of action* I think this contention must be admitted. As it
is not alleged that the appellant distrained the crops, he couM
only be held liable for damages caused to the respondent by the
distraint by reason of some contract, express or implied, between
them. There is no indication of any special contract on the
part of the appellant for peaceful enjoyment of the land sub-let
by him to the respondent and unless the implied contract referred
to in section 108 cla.use (c) of the Transfer of Property Act can
be held to apply the suit must fail.

In my opinion it would apply onfy if the respondent had
at the time of the distraint paid the rent reserved b}' the sub-
lease for the period for which the arrears realized by the
distraint were due and if the clause provides an unqualified
covenant for peaceful enjoyment*

It is unnecessary to decide whether it refers to an unquali-
fied covenant or merely a qualified one for peaceful enjoyment a»
against the lessor and his representatives, as the interference
was by the landlord who is not a representative of the lessor.
It is sufficient for the decision of the appeal that the respondeat
kas not alleged that the rent for the Rabi of 1307 Fasli had been

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paid, as the payment of the rent reserved by the appellant's lease '^»*'»P»"»
is a condition precedent to the appellant's liability for interrup- Bhagwaa
tion under the terms of the above clause.

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