The Oudh cases. Containing cases decided by the Court of the judicial commissioner of Oudh .. online

Sahai Lai (1). In that case Mr. Wells said, "Section
**65 of the Indian Evidence Act provides that secondary
" evidence of the contents of a document, i. e.y a certified
" copy of the document may be given in various cases. The third
" case, clause (c), is when the original has been destroyed or lost
" or the party cannot produce it. The 5th case is clause (^), when



(1) 7 0.C. 327.



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Vol. VIL] THE 0U1>H CASES. 367

" the original is a public docnment within the meaning of section
" 74, the 6th is clause (/^) when the original is a document of which
" a certified copy is permitted by any law in force in British India
" to be given in evidence. The proof of a document by secondary
" evidence under clauses (e) and (/) is not made dependent on
^^ the proof of the circumstances detailed in clause (c). A mort-
^^ gage-deed which has been registered according to law, has,
^' under section 74 clause (2) of the Evidence Act, become a public
*^ document, and its existence, condition, or contents may under
" section 65 (e) be proved by secondary evidence t. e. by a certified
" copy. In section 57 of the Registration Act I find no such qualifi-
" cation as has been held by the District Judge. This section
'' clearly provides that a copy given thereunder shall be admissible
"to prove the contents of the original document, and this
^' permission is, in my opinion, sufficient to bring such copies
" within the limits of section 65 cl. {/) of the Evidence Act."
No authority was quoted in support of this view and there
is some authority against it. In Hurish Chunder v..
Prosunno Coomar (1) Ainslie J. said, — "It is contended
" that the case comes under clause (e) or clause (/), but it i*
** perfectly clear that the conveyance to Mr. Tweedie could
" not be a public document within the meaning of section 74,.
" and it also seems clear to us that it is not a document of whicb^
" a certified copy is permitted by the Evidence Act,, or * by
" *any other law in force in British India, to be given in evidence.'
" By the words *to be given in evidence,' we understand to be
** given in evidence in the first instance without having been-
" introduced by other evidence. Section 57 of the Registration
" Act, which was referred to, only shows that when secondary evi-
" dence has in any way been introduced, as in this case, by proof
** of the loss of the original document, a copy certified by the
"Registrar shall be admissible for the purposes of proving the
" contents of the original; that is, it shall be admitted without
" other proof than the Registrar's certificate of the correctness
" of the copy, and shall be taken as a true copy ; but that does
" not make this copy a document which may be given in evi-

0) 22W. B., 805.



Raj Ctobftr-
dban Bin^

Mueammat

Kasiban
and anotbfr,



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368



THE OUDH CASES.



[Vol VII.



Ilaj Gobar-
dhan Singh

Masammat

Nasiban
And another.



" dence without other evidence to introduce it. Section 86
'^ contains an instance of documents to which this clause seems
" to refer."

We are unable to accept the view taken by Mr. Wells that
a mortgage-deed which has been registered becomes a
public document under section 74 (2) of the Evidence Act.
What that section provides is that public records kept in British
India of private documents are public documents but that pro-
vision itself shews that private documents of which public
records are kept are not in themselves public documents.
Then as regards section 57 upon which Mr. Wells chiefly
relies ; the last clause of that section provides that all copies
given under that section shall be admissible for the purpose
of proving the contents of the originals but that clause was
not in our opinion intended to override the provisions
of the Evidence Act. That clause was probably enacted
in order that copies of the registers might be adduced in proof
of the original documents; without such a provision copies of
the registers would have been open to the objection that they
were copies of copies and as such could not be used to prove
the contents of the original documents. The view which Ainslie
J. took in the case above-mentioned has been accepted with-
out question for 'many years and is we tbink correct. For
these reasons we are of opinion that the plaintiff in the present
case is not entitled to rely, upon copies of the three documents
the loss of which he has been unable to prove.



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Vol. VII.] THE OUDH CASES, 369

SECOND CIVIL APPEAL, No. 345 OF 1904. •



Before Mr. WelU.



Thakdr Sheo Narain Singh and others (Defendants) v.
Thakur Bishunath Singh (Plaintiff). 1904

Award not filed in Court within six months enforcement of- —
Specific performance — Joint property, suit for division of —
Limitation Act sch. ti, art. 113 ; Code of Civil Procedure s, 625.



The fact that an award has not been filed in Court does not make it invalid,
the provisions of s. 625,'Civil Procedure Code, being not imperative.

Suhharaya Chetti v. Sadativa Cketti (1) and Narsingh Oariwan v. Puttoo
Ottagur (2) followed.

Held also that a suit to enforce an award cannot be treated as a suit for
specific performance of a contract within the meaning of art. 113 of the second
schedule to the Limitation Act of 1877.

Sheo Narain v. Beni Madko (3) followed.

Held also that where by an arbitral ion a property has been awarded
jointly to some members of the family alone, a suit can be brought by any of
such members against the others for the division of that property alone without
including the property which jointly belonged to the whole family.

Laehmi Narain v. Janhi Da* (4) followed.



For Appellants. — Messrs. Basudeo Lai and Gokul Prasad.

For Respondent. — Mr. Wazir Hasan.

Wells, A. J. C. — The material facts of this case are that
one Pirthi had three sons, Jadunath, Bishunath the plaintifiE,
and Gnr Bakhsh, the father of the defendants. Pirthi's sons
were members of an nndivided family, and on the 27th December
1895 they executed an agreement appointing an arbitrator
to define their shares in the joint property ; and on the

* Against the decree of Pandit Bithi Prasad Bajpai, Subordinate Judge, Rae
Bareli, dated 31st May 1904, confirming the decree of Babu Shankar Prasad,
Mnnsif, Dalmau, dated Slst August 1903.

(1) I. L. B- 20 Mad., 490. (2) 20 W. R., 420.

(8) 1. L. R. 23 All.> 286. (4) 1. L. B., 23 AU., 216.



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370



THE OUDH CAxSES.



[Vol. VIL



Thakar Sheo

Karaiii Singh

aod others

r.

Thakar

Bisbunath

Siagh.



6th of August 1896 the arbitrator made an award defining
the shares of each of the sons and making various dis-
positions of the items of the property, allotting the whole of
one item to one brother and another item to another, and so
forth, bat leaving the plaintiff and Gar Bakhsh joint sharers
of the property in dispute.

The plaintiff has brought this suit against the sons of Gar
Bakhsh for a division of his share in that particular portion,
namely, two groves Nos. 1365 and 1089.

The Courts below have decreed the claim.

In appeal it has been urged that there can be no partition
of these groves unless the whole of the joint family property
affected by the former award was divided ; that the award had
not been filed in Court within 6 months and was therefore not
binding ; and that the suit is one for specific performance and
barred by limitation.

Now although the award was not filed in C/Ourt yet that is
no reason why it should be considered invalid. The provisions
of section 525 of the Civil Procedure Code are not imperative ;
and this was held in Subharaya Chetti v. Sadasiva Chetti (1)
and in SursingK Garitoan v. PtUtoo Otiagur (2). In Sheo
Narain v. Beni Madho (3), it was l»eld that a suit to enforce
an award cannot be treated as a suit for specific performance
of a contract within the meaning of art. 113 of the second
schedule of the Limitation Act of 1877. I see no reason to
differ from any of these decisions and the plea of limitation
and the invalidity of the award are thus disposed of.

It is argued that the suit should have been to enforce the
whole award and that Jadunath the other party to it ought to
have been impleaded, and that without this being done the suit
is bad.

The plea of non-joinder ought to hare been taken at the
earliest opportunity but this was not done in this case. There



(1) I.L. R. 20Mad„490.
(3) I. L. R. 23 All., 2^5.



(2) 20 W. R., 420.

(4> I. L. B., 23 All., 216.



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Vol. VIL] THE OUDH CASES. 37t

is no reason whatever to suppose that Jadunath objects to Thakar Sh©o
I 11.1 1 1 1 !•«• 1 ill Narain Singh

the award which settled the differences between the three and others

brothers. Thlkur

The groves in suit having now become the property o£ the siugh.
plaintiff and the defendants only, although they form part of
the property which once belonged to these parties and to an-
other, I do not think that it is ueceisary for the plaintiff to
include in the sait all the property which jointly belonged to
the three brothers. Tliis was the view taken by a Bench uE the
Allahabad High Court in Laehmi Narain v. Janki Das (1).
I do not see any reason for taking any contrary view.

The appeal thus fails on every ground and is dismissed with
costs.

.. '

(1) 1, L. R., 23 AH., 216.



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Dec. 13.



378 THE OUDH CASES. [Vol. VII.

FIRST CIVIL APPEAL, No. 19 OF 1904.*



Before Mr. Scott and Mr. Wells.

Maheshar Parshad and others (Defendants) v. Babu
1904 Muhammad Ewaz Ali Khan {Plaintiff).

Adverse title^ hy tenant assertion of — Tenant — Declaratory
suit by landlord ayainst tenant setting up under-proprietary title —
Under^proprietor — Civil Courts jurisdiction of — Under-pro^
prietary right — Interpretation of Revenue Courts decree by
Civil Court.



It is Dot merelj an assertion of an adrerse title on the part of a tenant
which necessitates a suit for a declaration on behalf of the landlord with respect
to his title. It is only when on the basis of such an assertion an order adverse
to the landlord has been pasfed by the Revenue Court, that the landlord will
be required to file a declaratory suit.

[^Thakur Chattardari Singh v. Bkagwandin (1) approved.]

When it was proved that a person was holding under a decree which it
was alleged created a perpetual lease in his favour and that he could not
claim under-proprietary rights because he or his ancestors had never been
proprietors, a mere assertion on the part of the lessee during the currency of
the lease that he was an under-proprietor could not create an under-proprietary
right in his favour by adverse possession.

[i^/tf Rampal Singk t. Balhhaddar Singh (2) and Ssshamma Shettati v.
Chickaya Hegade (3) distinguished]

JBudesab v. HaJiamanta (4) Referred to.

Held, per WelIs,JA. J. C. that it was within the jurisdiction of the Civil
Court to decide whether the particular decree under which the appellant was
holding created an under-proprietary right in his favour.



For Appellants.— Mr. i?*. G. D. Lincoln and B. Ram
Chandra.

For Respondent. — Messrs. E. Manuel and Mohammad
Ifasim*

SooTT, J. C. — The respondent Ewaz Ali Khan, is the
owner of Mauza Gadariyadih and in 1864, during the first

* Against the decree of Saiyed JKunad Husain, Subordinate Judge, Sultan-
pur, dated lOth February I90i.

(1) 7 0.C., 187. (2) I.L. R., 25A1L, 1.

(3) I. L. R., 26 Mad., 607. (4) 1. L, R., 21 Bom., 609 at p. 616.



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Vol. VII.]



THE -OUDH CASES.



373



regular settlement fihairon Pershad the predecessor in interest
of the appellant sued Sada Bibi the purchaser in interest o£
the resjiondtnt, for under-proprietary rights in the whole of
the Mauzaand obtained a decree, Subsequently, in 1866 the
Sub-settlement Act was passed of which section 13 provided
that " cases in which claims to under-proprietary rights have
been disposed of otherwise than in accordance with these rules
will be open to revision, but this rule will not apply to cases
disposed of by arbitration or by agreement of the parties."
On the 6th January 1869 tlie Financial Commissioner held that
"as the original jnoprietary title has not been proved, the
plaintiffs are in no way entitled to sub-settlement" but as the
talukdar's agent was willing to compromise the suit, he decreed
"a faruiing lease to plaintiff, he paying the Government
demand plus 25 per cent, to the Talukdar for a period of
30 years."

Notices of ejectment in 1894 and 1897 were issued to the
appfl hints and were set aside on the ground that 30 years had
noi then expired.

In 1307 after the expiry of 30 years from the 6th January
1869, a notice of ejectment was again issued and set aside by
the Commissioner of Fyzabad whose order was confirmed on
appeal by the Board of Revenue. It was tlien contended on
behalf of the Talukdar that the lease granted by the decree of
the 6th January 1869 was for a definite period of 30 years,
while, on the other side, it was argued that the lease was «
perpetual one, the rent being fixed for 30 years only and the
Commissioner was of opinion that there was " ample material on
the record to justify a Civil Court in coming to the conclusion
that the Financial Commissioner's decree does not merely
grant a lease to the ancestors of the appellants certainly termin-
ating on the 6th January 1899, and by its termination leaving
the appellants' ancestors from that date in the position of ordin-
ary tenants." He held that an authoritative finding on the question
of the true interpretation of the Financial Commissioner's
decree could not be obtained from any Revenue Court proceed-
ing summarily on an ejectment notice and that the Civil Court



MaheBbar •

Parsbad and -

others

r.

Babu

Muhammad-

Ewaz Alt

Kban.



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374



O^JIE OUDH CASES.



Mahesbar

Pfcrshad and

othera

r.

Babu

Muhammad

Ewaz AH

Khan.



[Vol. VIL

alone conld determine' the meaning*)E the disputed decree and
decide whether or not " the appellants are nnder-proprietors."
The Board o£ Re venae was of opinion that the occupant had
raised a presumption that he is not an ordinary tenant under
the Rent Act who can be ejected by notice and that it was
impossible for the Board to dispose of the issue raised. This
order is dated the 22nd July 1899 and the present suit was
instituted on the 11th January 1900. The reliefs claimed
were : —

1. a decree for possession of the entire Manza and

2. if notwithstanding the expiry of 30 years from the
6th January 1869, the defendants' possession be held to be that
of tenants and, if there be anything against the award of a decree
for possession, it be declared that the defendants have no rights
either as under-proprietors or as holders of anj intermediate
interest or any rights superior to those of mere tenants.

The Subordinate Judge was of opinion that the suit was
cognizable by a Revenue and not by a ( -ivil Court and returned
the plaint for presentation to the proper Court.

On appeal this Court in its judgment (reported in 5 0. C.
p. 118) stated that the Lower Court should have decided
" whether the relation of landlord and tenant exbted between
the parties or whether the defendants were under-proprietors"
and remarked that "where the alleged tenant under the decree of
Court does not admit the tenancy and alleges that he holds as
an under-proprietor, the dispute raises a question as to pro-
prietary right and title which the Revenue Courts are not com-
petent to decide, except incidentally, and the Civil Courts are
competent to decide finally.*'

The Subordinate Judge has now granted the plaintiff k
decree declaring that the defendants have no under-proprietary
rights in the village of Gadariyadih or in any part of it but
refused to interpret the decree of the 6th January 1869.
The defendants have appealed and the plaintiff filed ob-
jections on the ground that the Lower Court should have inter-
preted the decree of the Financial Commissioner as the



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Vol. VII.]



THE OUDH CASES.



375



Revenue CoorU had refused to interpret it, but the objections
have been withdrawn. Of the issues raised by the pleadings
it is neoessarj to consider only the following : —

1. Is the suit barred by limitation ?

2. Was the decree of the 6th January 1869 passed with-
out jurisdiction and are the defendants not bound by it ?

3. Does the period of .30 years mentioned in the decree
of the Financial Commissioner dated the 6th January 1869,
refer to the term of the lease or was the rent payable for that
period merely determined ?

4. Are the defendants under-proprietors of the whole
or any of the plots specified in para. 20 of their written state-
ment ?

5. Have the plaintiff and his predecessors admitted
after the decree of the Financial Commissioner that the
defendants are under-proprietors ?

The appellants admit that they obtained no under-proprie-
tary rights under the decree of the Financial Commissioner
bat claim under it a hereditary and non-transferable farming
lease. They contend that prior to it they were declared to be
under-proprietors of the whole village and that the Financial
Commissioner had no jurisdiction given to him by the Sub-
Settlement Act to open up the decision of the Settlement Officer
which was final and is still in force. They also allege
that they are in any case under-proprietors of the plots.
It is therefore unnecessary to consider the question whe-
ther any under-proprietary rights were conferred by the
decree.

The date of the cause of action is stated in the plaint to be
the 6th January 1899, when the period of 30 years expired ;
and the 22nd July 1899, when the notice of ejectpaent was
.finally set aside by the Board of Revenue, but for the appel-
lants it is contended that the period of limitation must be ca,l-
culated from the 11th January 1893; whjsn, in proceedings on



Paishad and
others

r.

Baba

Muhammad

Ewas All

£haA.



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376



THE OUDH CASES.



[Vol. YII.



VAfacsbsr

Parshad and

others

r.

Babn

nnharamfid

£was AM

KhaD.



an application by the respondent to have their names expunged
from Register No. 5, they asserted that they were under-pro-
prietors and the respondent denied that they had any sneli
rights. The application was dismissed on the Slst January
1899. For the respondent it is contended that no cause of
action arose to him in 1893, as the 30 years had not then
expired and the appellants could not set up an adverse title
while they held as tenants under the lease and that it is not
every assertion of am adverse title which necessitates a suit for
a declaration.

In Thakur Chattardluxri Sin^k v. Bhagwandin (1), the
landlord sued for a declaration that the defendant was not an
ordinary tenant of certain land and a Bench of this Court held
that the period of limitation for the suit began from the date
on which the Revenne^Court cancelled the notice of ejectment
issued by the plaintiff and not from that on which the defend-
ant filed his suit alleging t^^at he was an under-proprietor of
the land.. \n Scs/tamma Shettaii v. Chickaya Hegade (2) it was
.held that a person who had lawfully come into possession of
land as a tenant for a term of years cannot by setting up,
during the continuance of such relation, any title adverse to
the landlord, acquire by the operation of the law of limita-
tion any title inconsistent with that under which he was let
into possession. In the case reported at p. 156 of I. L. R. 27
Calcutta, their Lordships of the Privy Council held that the
possession of a tenant for life is not rendered adverse by a
jiotice from him that he claims to bo hoMing on a perpetual or
hereditary tenure and at p. 516 of I. L. R. 21 Bombay, it was
held that a false allegation by a tenant as to the terms of his
tenancy does not throw upon (he landlord the onvs of refuting
tliem by suit* The learned ('ounsel for the api>ellant relied on
the case of Bampal Sivgh v. Balhhaddar Singh (3). In that
case their Lordships of the Privy Council held that a lease graft-
ing land to the defendant " as a zemindari tenure " created a
perpetual under-proprietary right in the subject of the lease



y) lO.C. 187.



W



(2) I. L. R., 25 Mad., 507.
I. L, R. 35 AIL I.



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A^oL. vir.]



THE OUDH CASES.



377



and that the period oE limitation began to run £rom the date
on which, in proceedings for rantation of names, the plaintiff's
makhtar had knowledge that the defendant claimed a proprie-
tary interest under the lease, his possession becoming adverse
from that time. That case is distinguishable from the present
as the defendant claimed a proprietary interest under a lease
which the plaintiff denied and which was not shown to have
been set up before the mutation proceedings, whereas no under-
proprietary interest is now claimed by the appellants under the
decree which is admitted to have been passed by the Financial
Commissioner on the 6th January 1869. In his objections
to the respondent's application, Maheshar Prasad merely alleged
that his ancestors were former proprietors and the consequences
which would follow from this, if it were a fact, and that the
lease granted by the decree was a perpetual one. As it had
been decided by a competent Court that the appellants' ancestors
were not at any time proprietors of the village, it was not
necessary for the respondent to institute a suit for a declaration
that they were not former proprietors or that the appellants had
any rights in consequence of former proprietorship. In order
to establish under-proprietary rights in any land it must be
proved, among other matters, that a former proprietor has
retained within the period of limitation, either by himself or by
some other person or persons from whom he has inherited,
possession of the land which by virtue of his proprietary right
he held as Sir or Ifankar when he was in proprietary posses-
sion. As the ancestors of the appellants were never proprietors
they can therefore have no under-proprietary rights in any
part of the village. We were asked to hold" that the finding of
the Financial C^ommissioner was without jurisdiction as it was
shown that the claims of the persons whom the appellants
represent had been disposed of by the Seitlement OflBcer other-
wise than in accordance with the rules contained in the Oudh
Sub-settlement Act, but we declined to consider the question
ns the Financial Commissioner was the final Court of appeal at
the time and it was for him to decide whether he had jurisdic-
tioB or not. In my opinion it was altogether unnecessary



Mftbenhnr

Parsiind Rn«i

others

t.

Babu

Mabamniad

£wBz All

Kbau.



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378



TilK oUDll CASES.



[Vol. VI r.



Parslta*! iunl
orliera

r.

Babn

^fnhainmail

£waz Ali

KbaiJ. '



for the rospon«Ieiit to institute the preseiU suit for a decla*
ration that the appellanta are not under-proprietor.-* of whole
or any jmrt of the village as tlie question was finally decid-
ed by the decision of a competent (k)art whioh found that
their ancestors had never been proprietors oE tfie village.
Their ancestor was no doubt recorded at the former
settlement as holding certain plots as sir or khudkasht but as
they did not hold them by virtue of any former proprietary
right, tlie appellants are not under-proprietors of any of these
plots.

It has no*, been contended before us that the respondent or
bis predecessors have ever admitted that the appellants are
under-proprietors and for the reasons stated above 1 w ould hold
that the suit is not barred by limitation and that the appel-
lants are not under-proprietors of the village or any part of it
and would dismiss the appeal with costs.

I may add that this Court in its judgment remanding the
case appears to have overlooked the main object of the plain-
tiff's suit which was to obtain a declaration that the defendants
have [no rights under the decree of the 6th January 1869
to remain in possession of the village. It directed the Subor-
dinate Judge to decide " whether the relation of landlord and
tenant existed between the parties or whether the defendants
were under-proprietors " and no doubt he has in consequence
refused to interpret the decree. The result seems to be that the
plaintiff has obta ned no declaration such as the Revenue Courts
held that it was neoessary for him to obtain, but as the objections