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

amendment of the decree by including in the costs pleader*s fees
<»lcalated on the value of the property at the rate of five times 4foe
Government Kevenue assessed on the land. The applicatioB Was
allowed and the decree was amended accordingly, bat the total
amount of costs to be paid by the defendant to the plaintiff was
not altered by an oversight. The plaintiff appealeil from the decree
as amended on the grounds (I) that pleader's fees should have been
awarded on the market value of t.he pioperty and (2) that the
lower Court bad no jurisdiction to amend the decree.

Meld that, having regard to Rule 4 of paragraph 288 of the
Oudh Civil Digest, the pleader's fees were rightly calouUted on the
value of the property at the rate of fi?e times <be Govorumeut
Revenue assessed on the land.

Held further, that costs allowed in the deoree not having been
calculated according to law, the decree was at variance with the
judgment and the lower Court had power to amend it.

Rani Jaibans Euar v. Chouras Cuar ... 43

PLEADER, REFUSAL BY TO ACCEPT NOTICE OF DATE OF HEAR-
VKQ OF CASE — Appeal^ ditmiisal of, in default — Adroeate, toUh*
drawal of from case — Adrocate of CJiartered High Court — CodB of
CitU Procedure, ss,36, 39, and 40,"] An appeal was filed in the Court
of the Judicial Commissioner by a vakil of that Court. It was set
down for hearing for January 18th 1904. Notice for that date
was sent to the appellant's pleader and was aooepted by him. The
appeal could not be heard on the ISth Jan nary and wfts adjourned
to the 5th July. Notice as before was issued to the appellant's
pleader who refused to accept it and wrote on it, " Now I do not
appear in the case." The appeal was called on for hearing on the
last mentioned date, and neither the appellant nor his pleader
being present was dismissed in defkiult.

Held, that having regard to the provisions orf Bections 3!6, 89,
»nd 40 of the Code of Civil Prooedure, service on a duly appointed



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pleader is, unless the Court otherwise directs, eqniTAleut to service
on his client and that a pleader cannot withdraw merely by writing
on a notice that he no longer appears in the case. Meld therefore,
that the appeal was rightly dismissed.

I/eld further, that s. 40 of the Code applies as mnch to adyo-
eates as to any other persons coming within the definition of
pleader in s. 2, and that eren in the case of an Advocate of a
Chartered High Court a mere refusal to accept notice can not
ordinarily be treated as oquivalent to notice to the Court of th«
Judicial Commissioner that Counsel has withdrawn ffom an appeal
or other proceedings.

Blusammat Bilas Knar and another «. Sbeo Darsbaa Singh 303
POSSESSiOKOFSHAMILAT LAND AND DEMOLITJON OF CON-
BTRUCTIOir THBRBON BLOOKIWO A BQAD, 6UIT AGAIHST 4Q0-
BHiiBEBS FOB — Decree ftnr joint poueseionwhen no euch relu/U
pmjfedjbr^ UUerferenoe of Court in Second Appeal with — Blocking
a rondy remedy of co^eharer againxt other co-eharerM forJ] The
^laiutiff sued some of bis eo-sharers for possession of a piece of
ehamUat land and for demolition of a ekaupal erected thereon by
them , The remainiAg co-sharers were also added as def enda nts by
the first Court. The plaintiffs case was that the original defendants
had blocked up a road used for carts and foot passengers by erec-
tion complained of and had thereby put the plaintifi to incon-
venience. The Court passed a decree in favour of the plaintiff for
possession jointly with the added defendants.

On the contention that tiie plaintiil having claimed exclusive
possession was not entitled to a decree for joint possession, it was
held that erven if he bad done so the Court should not on that
ground interfere in second appeal with the decree for joint
possession ^if on other grounds the plaintiff was fonnd to be
entitled to such poflsession.

On the finding that the road bad been blocked to some extent,
it was held that the plaintiff was entitled to the relief prayed for
as the damage could not be remedied by a partition.

IMamphal Rai v. Eaghundan (1) distinguished. Jbta â–¼.
Sardul Singh (2) and Select Case No, 270 referred to.]

Kalln and another », Qaya Din ... 36S

POSSESSION, 6D1T FOR— 12« judicata— Judgment inter porta in a
previcui 9uU, admisiiHlityof—CodeofCivil Procedure^ t, 13—Jte-
eognUicn of claim— Indian Ihidcnce Act (I of 1812) t. IJ.] The
respondents brought a suit against the appellants for possession of
some lands in a Tillage on tbe allegation that they had acquired
title to the land in suit as well as the other land of the village by

(y I. L, Re, 10 All., 498. (2) I. L. R., 10 All., 668.



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adverse possession. They filed a jadgment in a suit brought by
their father for a declaration of his title to the lands of that TlHage,
the title being based upon mortgages allegeti to have become irre-
deemable. The decision was that he was entitle<l to 22 bighas,
and the rest 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 dis-
missed the claim except as to the 22 bighas on the ground that the
plaintiff though in possession bad not proved has title. The
judgment was inter partes.

Held, that the question of possession of the land with regard
to which the suit was dismissed wa& not ret judicata,

A bare expression of opinion in a judgment upon a question of
possession which is not given effect to by the decree is not a recog-
nition 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
ef the j'udgment or at any other time.

Musammat Earima Bibi and others v, Sri Gobind and

others ... 122*

POSSESSION, SUIT FOR. See Purchaser in execution of decree on
prior mortgage when sale takes place after sale on subsequent
mortgage ... 2^S

POSSIBILITY OF SUCCESSION NOT A SALEABLE INTEREST See

Pre-emption, suit for .« 98

POWER-OF-ATTORNEY SIGNED BY DEPUTY COLLECTOR FOR
DEPUTY COMMISSIONER, PRESUMPTION AS TO. Set Naaul land in
Oudh, suit for possession of. ... 6&

PRE-EMPTION SUIT FOn^IndianZimitatitm Act, sch. a., art. 12Q—
Decree for pre-emption obtaiTied by a person in a suit to ujhick
plaintiff in the second suit is not a party — Partition, part of
land remaininff joint after, effect of, as to right of pre-emption —
Village community, members of— -Oudh Laws Aci^ s, 9 cl. (3j].
A certain village was in 1883 partitioned between eight sets
of co-sharers and was divided into eight separate mahals. Certain
lands such as graveyards were thrown into a ninth mahal which
remained joint and was not separately assessed to revenue. Upon
this partition the vendor obtained one of the eight mahals. In
1886 he mortgaged a one anna share in his mahal to O the father
of the second defendant. In March 1898 O obtained a conditional
decree for foreclesure and an order absolute was made on Novem-
ber 29th, 1 899 . The first defendant brought a suit for pre-emption
and obtained a decree on 8th April 1901. To that suit the plain-
tiff was not made a party. The plaintiff instituted his suit for
pre-emption on the basis of the foreclosure decree obtained by the
father of the second defendant and impleaded the first defen<la&t»



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77>W, that the suit was goTerned by art. 120, sch. li. of the
Indian LimitatioD Act and was within time.

The light of a person to pre-emption cannot be defeate<l by a
decree obtained by another person in a suit to which the plaintiff
in the second suit is not a party« Held therefore, that tlie plaintiff^s
suit was maintainable^

Held further, that under set. 9 clause (S) of the Oudh Laws
Act, the vendor, the plaintiff, and the first defea dan t in the present
case were 4m members of the same Tillage comi&anity.

I>alip Singh v. Sheo Nandan ,.. 1

l*RE-KMPTION, SQITFOR— i?tfZtf<wwA*;?o/ rend^ 4tnd vendor, pUa of
— Oudh Laws Act, «» P.] In a suit for pre-emption the plaintiff
alleged that she, the Tender, and the Tendee held shares in the
same mahal and that sbe and the Tendee were both equally enti-
tled to pre-erapt> The Tendee-defendant^s answer was that he
was related to the Tendor and the plaintiff was not, and that
therefore he the Tendee had a preferential right of pre-emption.
The Tender was the widow of one R whose father was a first
cousin of the v^endee.

Held, that the Tendee had no preferential right to pre-empt as
against the plaintiff* The kind of relationship contemplated by
s. 9, Oudh Laws Act of 1876 ist^onsanguinity from a common stock.

Musammat Jafn Begam r* iCusammat Gulab Kuar and

another ... 6



— Phyrioal pos$euion — Indian Limitation Act,

$ch, ii^arU, 10 and t2(K\ The first respondent beM « mortgage by
conditional sale on the shares of the remaining respondents. They
remained in possession ^ the property antil the 15th April 1896
when the first respondent was put in possession by the Court under
a decree for foreclosure which had been made abs^Iate on the 28th
March 1896. The appellant's si^t for pre-emption was filed on
the 28th January 1901. Bold, that the suit was governed not by
art. 10 but by art. 120, sch. ii, Indian Limitation Act and was
within time. The Words ** physical possession** in article 10 mean a
personal and immediate possession and exclade any notion of
«on8tructiTe~poeses0ion by a landlord throngh his tenants. Held
therefore, that the property which was the subject of the fore-
closure decree obtained by the first respondent did net admit of
physical possession.

Baghunath Farshad v. Ram Dayal and others

— — : Co-nharers in a grove, position of, after par'

iition—Mernier of tillage community not residing in the village im



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Page.
which he ha4 riglUi in land — Oudh Laws Act s. 9. cl» T^J*] The
plaintiff, the defendants and other persons jointly owned a grore ;
bat there was a partition and the plaiutiff acquired a distinct and
separate part of the grove, and the defendants did the same. The
defendants sold their share in the gro?e and the defendants also
had a share in it which thej had soM. The plaintiff did not reside
in the village in which the grore was situated.

Held^ that the plaintiff and the defendants were not co-sharers
in the grore at the time of the sale, but that the plaintiff was a
member of the rillage community within the meaniug of s. 9 cl. (4;
of the Oadh Laws Act although he did not reside, in the rillage to
which the grore in suit belonged, and that he was entitled to a
decree on that ground.

Syed Rashid-ud-din c. Wali Jan Beg ... 19

PRE-EMPTION, SUIT FOR— 5aZ« to oo-iharer and stranger with speeijuh
atian in the deed of each vendw'^s share in property sold,"] C sold
bis share in a rillage to i2 a co-sharer and 8 a stranger. The deed
of sale stated that the property was sold for Rs. 600 to R and 8 in
equal shares. The plaintiff a co-sharer in the rillage claimed pre-
empt loo against i2.and S, Held^ that the shares of the rendees
were specified in the sale-deed and that therefore the plaintiff
was not entitled to a decree for pre-emption against R who was a
co-sharer.

Wajid Khan v. Ratan ... 23

«._«.«^ .- SaU'deed relinquishing claim to property in

return for henefUs preriously received from transferee — Oudh Laws
Act, 1876, Chapter //.] B mortgaged certain lands with possession
to iV father of the defendant No. 1 in 1856 for a certain sum of
money and after R*8 death H his widow sold it to JT in April 1864
for Rs. 1,674-7-9 reoeiring Rs. 1,135-3-9 in cash, the balance being
deducted on account of the mortgage money, ^died in April 1900
and in January 1901 the second defendant Who was R'b cousin and
the next rerersioner, executed a deed in farour of the first defend-
ant, relinquishing all claims to the property in return for some
benefits which II and himself had receired from iVand the first
(defendant. The plaintiffs sued the defendants for pre-emption on
the allegation that the deed of 1901 amounted to a sale of the
property within the meaning of Chapter II of the Oudh Laws Act
1876. Heidj that the deed of January 1901 did not amount to a
deed of sale within the meaning of Chapter II of the Oudh Laws
Act, 1876.

Ealka Singh and another v. Konwar Gajraj Singh and

another ,„ 31



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PRE-EMPTION, SUIT FOR-Sons not teparately recorded oi co-ttharers
claiming pre-emption in renpect of property sold by their father.']
R and four other co-sharers sold a certain property to ^, a stranger
and the appellant claimed pre-emption. He filed bis suit on the
5th February 1902 and on the 6th February the respondents,
sons of R but not separately recorded as co-sbarers, also filed
a suit claiming pre-emption in respect of the same property.
The respondents were accordingly added as defendants in the
appellant's suit and the appellant was added as a defendant in
their suit.

Ueld^ that the respondents eonld not be treated as oo-sharers
and had no right of pre-emption as against the appellant. If the
sale was a valid one then any interest they had in the property
before the sale was lost to them on the sale taking place and they
bad no subsisting title at the date of the institution of the snit ;
while if they denied that their father had power to transfer their
interest they were precluded from claiming pre-emption.

Bam Dayal v. Bhajju Lai and others ... 61

-Oudh Laws Act, 1876, see, 8—Toum^ meaning



of— Interpretation — Urban land included within the limits of a
municipality,] When a word is not expressly defined in an Act it
must be read in ita popular, natural, and ordinary sense unless
there is reason upon the face of it to belieye that it was not intend- *
ed to l)ear that construction.

The meaning of the word **town " io sec. 8 of the Ondh Laws
Act discussed.

Jlfildf that the question whether any particular piece of land
is situated within a **town ** or not depends on whether it is pirt
of an nrban area or not, and it is a question of fact which has
nothing to do with the contingency of its being included within
the limits of a municipality for administratiye purposes'.

Janki Pershad v, Saheb-un-nisa and others ... 74

— ■ Reversionary interest^ sale of— Possibility

of succession not a saleable interest— Persons having possibility of
succession not eo-sharers ujith those having similar possibility —
Transfer of Property Act ^ s, 43 — Indian Limitation Act, sch, ii,
Art. 10.] A Hindu widow having sold to the defendant some
land inherited from her husband, X, N and the plaintiff as her
husband's reversionary heirs sued her and the defendant for a
declaration that the alienation would be invalid against them after
the widow*! death, and obtained a declaration to that effect.
Subsequently on the 16th February 1897 L and N who were
presumptively entitled to a half share in the land after the widow's



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xliv GENERAL mDEX.

Page,
death executed a deed in favour of the defendant and certain other
persons in respect of that share. In the deeil, they stated that
thej sold the half share which would devolve upon them upon the
widow's death, that by virtue of the deed executed by the witiow
the vendee would continue in possession of the land sold by the
widow, during the life-time of the widow, and that on her death
they would acquire proprietary possession of the land under the
present deed. The widow having died, the plaiutifiE on the 28th
August 1898 instituted a suit against the defendant and others who
were parties to the sale-deed of 16th February 1897, claiming
pre-emption of the half share of L and N,

Meld^ that the vendors had at the time of the execution of the
sale-deed of 16th February 1897 ^no saleable interest in tLe pro-
perty, that they sold a bare possibility of succession, that person i
who had a ba^e possibility of succession were not co-sharers with
others who had a similar possibility, and that e. 43 of the Transfer
of Property Act did not apply^

Beld further, that if the case could be regarded as one in
which a widow had transferred her husband's property with the
consent of the reversioners and a good title bad passed at once to
the defendant and a right of pre-emption accrued, the suit would
be barred by limitation under art* 10 sch. ii of the Indian Limita-
tion Act.

Bhairon Bakhsh i;. Baldeo Singh ... 98

PRE EMPTION, SOIT FOB. See Oudh Laws Act, s. 9, Clauses (1) and (2) 129

« Hindu widow'' $ rigkt of preemption in

reipeot ^property held as widow's estate as well as under a will
woeeuted by her hu4baTtd.\ The plaintiff who was the widow of
one P brought a suit for pre-emption in respect of her husband's
share in a village. The sale in dispute took place on the 15th
October 1901 and P died in July 1902. The plaintiff beld not
merely the widow's estate in the property of P but also as a
devisee under the will executed by him. Held^ that the plaintiff
was entitled to a decree for pre-emption.

Musammat Muna Kuer v. Abdhut Singh and others ... 158

â–  Proprieter in one mahal to pre-empt land in

another mahal when there has been perfect partition^ right of-^Act
XVIII of 1876 s. 9.] That having regard to the provisions of s. 9of
Act XVIII of 1876, where there has been a perfect partition in a
village, a proprietor in one mahal has a right to pre-empt property,
in another mahal as against a person who has nothing to do with
the village.

All Rasa Khan and another r. Ganga Din .„ 20$



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GENERAL INDEX. xlv

P«ge
PR Iv K M PTION, SUIT FOR—Si/Z* of property more than tluU entered in the
witice— Act XVIII of 1876, sections 10 and 11,] Tbe appellants
piirchaseil certain land and house property from the respondent's
brother if. PreTious to the sale 3/* gave the respondent a notice
under section 10 Act XVIII of 1876, to the effect that he was going
to Hell his Zemindari share for Rs. 6,865, exclading from the sale
his dwelling house and two orchards. The respondent refused to
take the property at the price named and then his brother sold
t hat property plus one of the orchards and his dwelling house, etc.
The respondent claimed pre-emption on the ground that the
property sold was more than that entered in the notice.

Beld that, the notice on the respondent was not a good notice
and the respondent did not lose his right of pre-emption through
sectian 11, Act XVIII of 1876.

Nasir-ul- Rahman and others r. Nawab All ... 287

Perfect partition — Bight of owner of one

mahal to pre-empt as against rendce of another nmhal^Memher of
tillage community — Residence in tillage — Oudh Laws Act, 1876,
section 9.] A village was by perfect partition divided into four
mabals. One of these mahals was the property of JB and was placed
under the management of tbe Court of Wards which sold it to the
respondents. Thereupon the appellant who was the owner of
another mahal brought a suit for pre-emption. Ic was conceded
on behalf of the appellant that be had no right of pre-emption unless
he was a " member of the village oommuuity" within the meaning
of B. 9 of the Oudh Laws Act. It wai also admitted that the
appellant did not reside in the villag9f

Held, that in the village in suit there was only one village
community, perfect partition notwithftanding ; that residence in
the village is not anncessaryqnalificattonfor membership of a village
community for the purposes of i. 9 of the Oudh Laws Act ; and
that the appellant was a member of the village community within
the meaning of that section.

Narendra Bahadur Singh r. Balkaran Singh and others ... 37^
'Owner ofieparate chak in mahal, right ef



to pre-empt — Co-sharer of mah^l — ^on-resident oo^sharer — Oudh
Laws Act 1876, s, 9— Oudh Retmue Act (XVII of 1876) s$. 108
and 112, and 121.] In a suit for pre-emption, there was no ques-
tion about the relationship of the plaintifE, and the only dispute
was whether his connection with the village in suit was such as to
give him the right of pre-emption. The material facts were that
he was owner of a chak of 83 acres in the village, and, by the
settlement under which he held, he paid his share of the revenue
through th6 lamberdars of the village ; but he did not reside ia
the village.



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xlvi GENERAL INDEX.



Hsld, that the plaintiff was a co-sharer of the whole mahal
in the sense of s. 9 of the Oudh Laws Act, 1876 ; and that having
regard to ss. 108, 112, and 121 of Act XVII of 1876 (Oudh Land
Reveoae Act), the fact that the share of the plaintiff in the mahal
consisted of a separate chak hut did not make him the less a co-
sharer in the sense of this Act, and the circurasrance of his being
non-resident did not make any difference.

Munnn Lai and another v. Maulvi Saiyid Muhammad
Ismail and others ... 2 S4

PRE EMPTION, SUIT FOR— £p^9Ww?t(>/'<i'i7w/tw/;/7yw«M^ of price by
Court of appeal — Application hy appellant for extenJiion of time for
payment of price — Appeal.'] A plaintiff in a pre-emption case cannot
merely by filing an appeal obtain extension of the time fixed for
payment of the price. A Court of appeal has power to extend the
time, but in practice it does not do so except for some special
reason. An appellant in a pre-emption case who wishes to have the
time for payment of the price extended is not bound to put in a
separate vrritten application to that effect but may make the
request at the hearing.

Ram Dial v. Musammat Jafri Bcgam and others ... 359

PRESUMPTION AS TO DOCUMENT MORE THAN 30 YEARS OLD,

DISCRETION OF COURT AS REGARDS. Se^ Act I of 1872, 88. 4 and 90 290

ISSUE OFNOTICE.BY DULY CONSTITUTED

AUTHORITY, i^^/? Cantonment Code, 1899, 88. 83, and 85 ... 51

PRIOR AND SUBSEQUENT MORTGAGES. See Purchaser in execution
of decree ion prior mortgage when sale takes place after sale on •
subsequent mortgage. ... 243

PRIORITY OP MORTGAGE EXECUTED SUBSEQUENT TO, OVER
DEED OF GIFT BXBCUTBD PRIOR TO PASSING OP REGISTRATION
ACT. See Registration Act s. 50 ... 342

PRIVACY, SUIT TO ENFORCE RIG HT 0Â¥'-Omtomary right ofpHhaey,]
The plaintiff brought a suit for removal of windows in the defend-
ant's house which overlooked 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. Held, 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.

[Ookal Prasad v. Radlio, I. L. R., 10 All., 358 followed.]
Lala Bhagwan Das r. Sbahzada Mirza Masud Quadar ... 126
PROCEDURE. See Code of Civil Procedure, ss. 27 and 368 ... 7 8

AS REGARDS APPLICATIONS FOR REVIEW. See

Review of judgment ^^^ 299



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Page.

PROOEDUUK TO BE FOLLOWED WHEKE POLICE REPORT UN-
FA VOUBABLB TO BUEETT. See Surety, rejeotioo of, upon Police
report ... 113

PROFITS, SUIT FOR A SHARE OF^Renditiwi of aecounts, tuitfor^
Rent Act (Oudh), 18S6, s, 108 cl. (IS).] In a suit under cL (15)
p. 108 of the Oiulb Rent Act, 1886, the main question was whether
the suit was for " a sbnre in the profits'* or for " the rendering
and settlement of accounts in respect of those profits." The parties
were the co-sharers in a patti and collected the rents separately
and paid the revenue pe:>arately .The plaintiff claimed for arrears
of rent and profits, and the settlement of accounts for the years
running from 1306 to 1309 Fasli. He gave details showing the gross
rental, his own bhare, what he had realised and the balance due to
him. iHe prayed for the following reliefs: — fajjthatan order be pass-
es! for the rendition of accounts and Ch) that on the accounts being
made up his claim may be decreed. Held^ that if a plaintiff olaiQis
a share of the profits, whether he asks for a settlement of accounts
or not, as a necessary preliminary to ascertaining what his share
really is, that is a suit for a share of the profits, and that the only
case for a settlement of accounts would be where the plaintiff
asked for a settlement of accounts pure and simple, and did not
claim a money .decree as the result. Held therefore, that the
plaintifTs suit was a suit for his share of the profits.