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

the title of the person who proposes to sell, and alleges that he
is not a co-sharer and that he himself is entitled to the whole
of the property, (iv) Fakhruddin v. Musammat Boiulan (7).
In this case the plaintiff denied the vendor's title and it was
held that the rule laid down in Abdtd Wahid KhatCi case

(1) Second GItU Appeal No. 663 of 188ft. (2) I. L. B., 7 AU., 184.

(3) 1 a 0., 862. <4) I. L. R., 31 AIL, 374.

(5) I. L. B., 31 AIL, 441. (6) I. L. B., 21 Galc^ 496*
(7) 8 0.0.9.



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and others.



64 THE OUDH CASES. [ VoL. YH.

Bom Dayal applied and diat tfaer^ore die could not maintain the «nit.

-?^^!?^ It seems to me Uiai Ham Bharose atad Hnl Naraiti

are on the horns of a dilemma. They must either admit that
the sale was a valid one or deny that it was so. If they admit
' that the sale was a valid one, then any interest they had in the
property before the sale mnst have been lost to them on the sale
taking place, and therefore tiiey had no subsisting title at the
date of the institution of their suit ; while if they deny that
their father had power to transfer their interest they are pre*
eluded from claiming pre-emption. In the latter case their
proper course would appear to have been to attack the sale
itself and not to sue for pre-empticm* In my opinion this
apped should be allowed and the decree of the lower. Court set
aside. I would decree Bam Dsyal's suit for pre-emption and
give him possession on condition of bis paying the price
Ba. 17,766, within two months. I would give him his costs in
both Courts to be recovered from Bam Bharose and Mul
Narain.

Chamibb, a. J. C. — I concur.



{ i



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Vol. VII.] THE OUDH CASES. 65

SECOND CIVIL APPEAL, No. U OF 1903. *



Before Mr. Scott.



Saitad Mohammed Haidar and another {Plaintiffs) v. 1904.
The Sbcbbtary of State for India in Council and another J any. 8.
{Defenddtits).



Ifazul land in Oudhy suit for possession of-^Burden of
proof — Lord Canning*s proclamation of 15th March^ 1858j
effect of — Power^f 'attorney signed by Deputy Collector for
Deputy Commissioner^ presumption as to.



In a Boit for possession of a plot of land in Fysabad brought by the appellants
against the respondents the power of attorney filed by the Qovernment pleader
on behalf of the respondent No. 1 purported to have been signed by the Deputy
Collector " for the Deputy Commissioner." The Settlement paper showed that
the land was Nazul.

Beld, that in yiew of the general practice that in the absence of a Deputy
Commissioner or a Collector from the head-quarters of his district one of his
subordinates does sign and has authority to sign papers and documents on bis
behalf, it must be presumed that the Deputy Collector had authority to sign for
the Deputy Commissioner.

Held further, that haying regard to Lord Canning*s proclamation of 16th
March, 1858, which divested the proprietors of all the landed property in Gudh
and transferred it and vested it in the British Government, it was for the
appellants to prove that they claimed title to the land in suit through the
Government.



For Appellants. — M. Moluimmad i\a«m.

For Respondent No. 1. — The Government Pleader.

Scott J. C. — In this suit the appellants sued for possession

* Against the decree of Pandit Suraj Naraiu, Subordinate Judge, Fysabad,
dated 6th December, 1902, reversing the decree of Babu Kali Charan Boie,
Munsif, Fyzttbad, dated 23rd August, 1901.



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€6



THE OUDH CASES.



[Vol. Vil.



'Salyad
Hohammed

Haidar

and another.

t*.

The

Secretary of

State for

India in

Council

and another.



«f plot No. 5818 within the amhit of the city o£ Fyzabad- and
their claim was resisted by the respondeat, who contends that the
plot is Nazul. The lower appellate Court has dismissed the suit
as against the respondent. The first Court decreed the claim as
against the respondent and the other defendant, Mir Sajjad
Husain, who did not appeal,and therefore so far as he is concerned
the decree for possession which the appellants obtained 3tanda
good.

The first ground now taken In appeal is to the effect that
no appeal was preferred in thei lower appellate Court by the
respondent, as the appeal was presented;by.a pleader acting on
a power-of-attorney signed by a Deputy Collector and it is con-
tended iiiat the power of attorney so signed is invalid. It pur-
ports to have been signed by the Deputy Collector " for the
Deputy Commissioner, " The Government Pleader is the re-
cognised agent of Government ifor the purpose of instituting
suits and appeals and under Rule 65 of the Rules relating to
the department of the Legal Remembrancer, it is the duty
of the Collector or Deputy Commissioner to appoint a pleader
to take up the duty of the Government Pleader in case the
latter is physically unable to attend and it is admitted now
that if the Deputy Commissioner had himself signed the
power-of-attorney, the appeal to the lower appellate Court was
properly preferred.

There is no direct proof that the Deputy Collector had or
had not authority to sign on behalf of the Deputy Commissioner
but it is a fact generally known that in the absence of a Deputy
Commissioner or a Collector from the head- quarters of his dis-
trict, one of his subordinates does sign and has authority to sign
papers and documents on his behalf and it is unlikely that the
Deputy Collector signed the power-of-attorney, professedly
for the Deputy Commissioner, in the present case without
authority. Therefore I think that it must be presumed that the
Deputy Collector had authority to sign for the Deputy Com-
missioner.

As to the merits of this appeal, the Fyzabad Settlement



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Vol. VII.]



THE OUDH CASES.



67



Report at para. X388 states that the village of Fyzabad had
been exejnpted from assessment and left " as before " in the
hands of the Nazul Department. The settlement papers also
show that it is Nazul. Irt Nawab Malka Jaluin Saheba v. Deputy
Commissioner of Lucknow (1) the Judicial Committee of the
Privy Council decided that the oflfect of Lord Canning's Pro-
clamation of the 15th March, 1858, was to divest the proprietors
of all the landed property in Oudh and to transfer it and vest
it in British Government and that consequently all who since
that date claim title to such property must claim through the
Government.

The plot in suit ihereiore primd facie was the property of
Government after the Proclamation and presumably remained
so unless the appellant can prove a grant made since. He re-
lies solely on an entry in the Settlement kliasra which in the
column of proprietors shows Kulsum Begam as the proprietor.
The name of Bande Ali had first been recorded but was
crossed out and Kulsum Begam's rrame recorded. Register III
shows the whole of Fyzabad as Nazul and there is nothing
to show that the abadi was excluded. I think that in the
absence of any evidence that a grant of the plot was made by
Government to the appellants or the persons whom they represent*
the explanation of the entry in the khaswi is to be found in the
note in the column of remarks to the effect that the plot is a
phulwari and that Kulsum Begum was the proprietor of it and
the buildings on the land. This is consistent with the land on
which the phulwari and buildings stood being Nazul. As loss
than CO years have elapsed since Lord Canning's Proclamation
the appellants cannot have acquired a titletby adverse possession
aguiqgt the respondent whether the latter has exercised acts of
ownership or not. I accordingly dismiss the appeal with costs.

(1) L. K.. ti 1. A.. 63.



Saiyad
Mohammed

Haidar
and another.

The

Secretary of

State for

India in

Council

and another.



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1904.
Feb. 9.



68 THE OUDH CASES. [Vol. Vn.

CRIMINAL APPLICATION, No. 160 OF 1903.*



BefoYe Mr. Marteod.



Rai Narain Das \{Applicant) v. King-Emperor (Opposite
Parti/),

Cantonment Code^ sections 83, 85, and 283 — Notice for
general repairs — Criminal revision — Code of Criminal Procedure
$, 439 — Penalty for failure to comj^hj with notice for repairs. •



The Cantonment Magistrate by a notice purporting to have been issued ia
accordance with s. 83, Chap VI, Cantonment Code, directed the applicant to
carry out certain general repairs in a house as recommended by a Committee
of Arbitration. The applicant, having failed to comply with the notice, was
convicted under s. 283 of the Cantonment Code.

Held that the procedure adopted by the Cantonment Magistrate was not
authorized by s. 83 of the Cantonment Code, and also that the repairs ordered to
be carried out were not the kind of repairs contemplated by s. 83, and that the
notice purporting to have been issued under that section was bad and invalid
in law.

Ueld^ further that a penalty fof failure to comply with a notice under
8. 83 being expressly provided for in s. 86, i the conviction under s. 283 wat
illegal.

[ O, T. Jackson v. King -Emperor (1) followed.']



For Applicant. — Mr. J. M. Jackson.

For Opposite Party.— The Government Pleader.

This is an application for the revision of a judgment of the
Sessions Jucl<^e of Lucknow, passed in revision, upholding the
conviction oE the applicant under section 283 of the Canton-
ment Code by the Cantonment Magistrate of Lucknow. The
judgment of the Cantonment Magistrate is as follows: —



* For revision of the order of C. L. M. Ealea Esq., Sessions Judge Lucknow,
dated 1st September 1903 upholding order of Major A. Newnham, Cantonment
Magistrate Luoknosv. date<] 23rd June 1901.

(1) 7 O. C, 57.



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THEOUOH (^ASES.



69



" The accused aduiits he has not carried out the repairs which
" the Committee o£ Ai'bitratioti ordered to be carried out, and .
" pleads that there have been difficulties in obtaining labour on
'* account oE plague. I cannot entertain this plea for an instant.
" Ample time was given for the repairs to be done, two months,
'^ and since then yet another two months have lapsed, and the
*' place is practically untouched.

"I therefore find accused guilty of failing to comply with
"the order of the Committee of Arbitration, and under the
" provisions of section 283 fide him Rs. 50, and a continuing
'^ fine of Rs 2 per day for as long as the repairs are not fully
" completed."

Subsection (1) of section 283 of the Code runs as follows: —
"283 (1) Whoever in any case in which a penalty is not express-
ly provided elsewhere in this Code fails to comply with any
notice thereunder or otherwise commits a'breach of any of the
provisions thereof, shall be punished with imprisonment for
a term which may extend to eight days, or with fine which
may extend to Rs. 50, and, in the case of a continuing breach
with an additional fine not exceeding Rs. 5 for every day after
the first in regard to which he is convicted of having persisted
in the breach.'*

The Cantonment Magistrate has not specified in his judg-
ment what particular offence was committed by the applicant.

The offences which are punishable under section 283 are: —

1. Failure to comply with a notice imder the Code where
a penalty for such failure is not expressly provided elsewhere
in the Code; and

2. Committing a breach of any of the provisions of the
Code where a penalty for such breach is not ex[»ressly
provided elsewhere in the Code.

It should hardly be necessary to point out that before a
Court can convict an accused person it should satisfy itself that
some definite offence is alleged, und that the accused person



Bai Karaia
Das
r.
King-
Emperor.



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7&



THE OUDH CASES.



[Vol. VU.



Rai Narain
Das
r.
King-
Emperor.



knows what the charge against hiin is, and further that the
judgment should clearly specify what that oflFence is.

The Government Pleader made various vain attempts to
discover some provision in the Code which would cover the case
of an order issued by a "Committee of Arbitration." He sug-
gested that it might come under Chapter XX of the Code, but
it was admitted that no lease executed under section 259 in
Form B in Schedule V was in existence, and in the absence
of such a lease the provisions of Chapter XX cannot apply*
Finally, the Government Pleader produced the office copy of a
notice issued by the Cantonment Magistrate, no copy of it being
on the record.

It i» as follows: —

" No.(^:x)dated 17th February, 1903.

" From

" The Cantonment Magistrate^

" Lucknow

" Rai Narain Das Bahadur,
" Owner of No. 96

" Lucknow..

" Forwards herewith cppy of decision of Committee of
" Arbitration for his information, and in accordance with section
" 83, Chapter VI., Cantonment Code, he is directed that the
" measures therein recommended may be carried out within two
" months from the date of receipt of this letter, failing which ho
" shall be liable to be punished.

" (Sd.) A, Newnham, Major,

" Cantonment Magistrate."

The "decision of the Committee of Arbitration" referred
to in the "notice" is as follows: —

" Proceedings of a Committee of Arbitration assembled at
'^Cantonment Magistrate's Office at'JO cO A,J^f*j en Svivn^ay



'To



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Vol. VII.]



THE OUDH CASES.



n



*• January 24thj conformably to Station Order Jfo. 74^ dated Bai Naram

'* January 2Ut, 1903. ^

King-
"' Emperor.



Present: —

^^ Mr, A, L« Saunders, I. C. S., District Magistrate^

*^ Lieutenant J. Norwood, 5th Dragoon Guards.
" Lieutenant Q. A. S. Home, 5th Dragoon Guards,,

^^ Lieutenant C. A. Meadows, 7th Rajputs^



'* Abdul Hamid Khan representing Rai Narain Das, land-
' lord oE Bungalow No. 96.

** Joala Sabai, landlord o£ 7th Rajputs' Officers' Mess.
" Baghunandan Lai representing the above.



'^ Read papers connected with (a) the complaint o£ Lieuten-
" ant G. A. Swinton-Home regarding the bungalow occupied
"by him ;(6) complaint o£ Mess President, 7th Rajputs, regard-
" ing their Mess.

" The Committee proceeded to visit the two bungalows con-
" cerned and decide as follows: —

" (a) Bungalow occupied by Lieittenant G. A. Swinton-Home.
" The chief defect is the drainage for carrying ofiE storm water.
" Owing to the bungalow being below the level of the road a fall
" of rain floods the compound, stables, out-houses and servants'
" houses. How far the Cantonment authority and how far the
" landlord are responsible for this, this Committee are not in a
" position to say, but they consider that the steps recommended
" in the report by Lieutenant Evans, R. E., dated 21st July last,
" should be taken ; that a sufficient drain should be made to carry
" off storm water from the stables ; that the road-side drain at
" the back of the house towards the East Surrey Mess should be



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72



THE OUDH CASES.



[Vol. Vil.



Hal Narain
Das

V.

King-
Emperor.



'^ deepened and the compound wall bailt up to prevent a flood
" from this direction. Other necessary repairs are i —

" Servants* Houses. — Rpofs leaky and in bad repair, should be
" repaired, "Wall of bearer's house at ihe back should be rebuilt.
** Walls of gardener's and syce's houses want some slight repairs,
'' and the wall of one syce's house has fallen do¥m and should
*' be rebuilt.

" Stables. — Want replastering. One range has been re-roofed.
" The other wants it.

" Well, — Should be cleaned out. Probably wants partial re.
'^ lining, but this cannot be decided till it is cleaned. The water
*' channels in the garden need repair.

^' Porch, — Appears unsafe. Timbers should be chiuiged and

" pillars rebuilt at the top.

" Bungalow. — One beam in drawing-room should be renewed
"and window built up as in Lieutenant Eran's report of
" August 20th. / One bed-room door needs renewal. The roof is
" generally leaky and should probably be relayed before the

rains. The house needs replastering in several places.
" This house is highly rented.

" (Sd.) A. L. Saunders,

" District Magistrate.

" (Sd.) J. NOBWOOD,

" Lt., 5th D. Q.
** (Sd.) Abdul Hamid Khan."

The Cantonment Magistrate's letter or notice purported to
be issued in accordance with the provisions .of section 83 of
the Code.

Sub-section (1) of section 88 of the Code runs as follows: —
" 83 (1) When any building is so ill-constructed or
" dilapidated as to be in the opinion of the Cantonment authority
" in an insanitary state, the Cantonment authority may, by notice
•' in writing, require the owner, within a time to be specified in
" the notice, to execute such repairs, or to make such alterations
" as it may think necessary in order to remove such defects. "

Section 83 authorizes the following procedure: —



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Vol. VII,] THE OUDH CASES. 78

(1) The Cantonment authority must he o£ the opinion that ^* i^'*^
there are certain sanitary defects in a building; .r*

(2) The Cantonment authority may then issue a notice re- Emperor,
quiring the owner to execute such repairs as may be necessary

to remove those sanitary defects.

Here the procedure adopted was :-^

(1) A Committee of Arbitration which was not the Can-
tonment authority in any form, decided that certain general re-
pairs were necessary.

(2) The Cantonment Magistrate, who was likewise not the
Cantonment authority, and was not purporting to be speaking
on its behalf, sent a copy of the decision of the Committee of
Arbitration to the applicant, and required him to carry out the
repairs considered necessary by the Committee of Arbitration^

The Cantonment Magistrate professed to be acting under
section 83. Section 83 does not authorize anything of the kind.
Furthermore, for the reasons given in my judgment in the case
of G. T. Jackson v. King-Emperor (1) dated the 1st February,
1904 the repairs ordered to be carried out were not in my
opinion the kind of repairs contemplated by Section 83.

The notice purporting to issued under section 83 was in
my opinion bad and invalid in law.

A minor point is that a^ penalty for failure to comply with
a notice under section 83 is expressly provided for in section
85, and the conviction under section 283 is therefore bad for
that reason also.

The Sessions Judge says, "In my opinion there was no
irregularity or illegality in the order of the (^ourt below."

I am surprised that the Cantonment Magistrate convicted
on such materials, and that the Sessions Judge found it possible
to uphold the conviction.

This application is allowed and the conviction and sentence
are sot aside, and the fine realised (if any) will be repaid to
the applicant.

(1) 7 0. Cases. 57.



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71 T^HE OUDH CASES. [Vol VII.

SECOND CIFIL APPEAL, No. 193 OF 1902.*



Before Mr. Sc0U <ind Mr. Macleod.



- QQ . Janki Pbbshad (Defendant) v. Baheb-un-nisa (Plaintiff)

Jan. 4, ^od others.



Pre-emption ^uit for — Oudh Latot Act^ 1876 y sec. 5— »
Toton, meaning o/'^Interpreiaiion — Urban land included ^oithin
the Umits of a munidpaliti/.



When a word is not expressly defined in an Act it must be read in its
popular, natural, and ordinary sense unless there is reason upon the face (^ it to
-believe thsrt it was not intended to bear that constcoctioB.

The meaning of the word ** town '* in sec. 8 of the Oudh Laws Act discussed.

Held, that the question whether any particular piece of land is situate
within a " towm^* or mot depeads on whether it is part of an urban area or not,
and it is a question of fact which has nothing to do with the contingency of its
t>eing included within the limits of a municipality for administrative purposes.-



Fob Appellant. — Mr. A. P. Sen and B. Ajk Prashad.

Fob Bbspondbnt No. 1. — Mr. E. Manual and M. Mohanad
Ifasim.

Scott J. C. and Maclboh, A. J. C. — This was a suit for
pr«-emption. The appellant boagbi certain plots of land,
2 bighas and 13 biswas in area, in Manza Badailjuid the suit was
brought by the Arst respondent, Musammat Chandhrain Saheb-.
nn-nissa. The only question raised in this appeal is whether the
land in dispute must be treated as'belonging toa village commih-
nitj or as being situated within a town. In the former case, the
right of pre-emption is to be presumed to exist tinder section 7 oE
the Oudh Laws Act, 1876, wliile in the latter ease, such right is

* Against the decree of B. Kali Prasanno Bingh, Subordinate Jndge, Bairn*
hanki, dated 6th February 1903 modifying the decree of S. &nnj Bihari Setb,
Munsif, Fatchpur, dated 2tJth May 1901.



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Vol VII.] THE OUDH CASES; T5

not to be presumed to exist, but may be shown to exist, under perehad.
section 8 of that Aetr „ ^ J-

- ,, and others.

Those sectionsiare as follows :—

*' 7. Unless the existence of any cnstom or contract to
•♦ the conirwpy is'proved, such right shall, whether recorded itt
" the settlement record or not,, be presumed

'* (a) to exist in all village commrumties, howerer consti-
" tuted, and whether proprietary, or under-proprietary, and in
** the cases referred to in section 40 of the Oudh Land Revenue
"Act, 1876; and

" (&> to extend to the village site, to the houses built up-
^* on it, to all lands and shares of lands within the village
^' bounddry^ and to all transferable rights afiEecting such lands*

•♦ 8. The fight of pre-emption shall not be presumed to^
** elist in any town or city, or any sub-division thereof, bat
** may be shown to exist therein, and to be exercisable therein
•* by feuch persons and under such circumstances as^ the locaS
•* custom prescribes- "

The lower appellate Court, agreeing with the Court of
first instaBOOr ha» found that the land in dispute was not sitiA-
fled within a town and has decreed the suit for pre-emption.

It is common ground that the land in dispute is situated!
within the village boundary of Mauza Badail, and that in 1873"
the limits of the municipality of Barabanki (or Nawabganj)^
were so defined as to include this land ; also that at the date
of the purchase the land had not been built on, and waa not in-
eluded within the ambit of the town of Nawabganj.

The learned pleader for the appellant admits that up to^
1873 the provisions of sectioi* T would have applied to the land.
He contends that the mere fact of its having been inclnded
within the limits of the municipality of Nawabganj in 1878 is
sufficient to make it part of a town, irrespective of the questiotv
whether it is in fact situated in an urban area or ^n agricBl*



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76 THE OUDH OASES. [Vol VIL

Janki tural area.7 The word " town " is not defined in the Oudh

Pershad,

r. Laws Act. The argument put forward is as follows : — In seo-

^^^^^Xe^iT *^^" 3 ^f ^^^ ^•"^- ^' .^^^ ^"'^'^ Municipalities Act, 1873,
" Municipality " is defined to mean any town or towns to which
the Act may be extended, and^ therefore 'anything within a
municipality must be a town ; the Oudh Laws Act, 1876, was
passed after the N.-W. P. and Oudh Municipalities Act, 1873,
and therefore the framers of that Act must have had the defi-
nition of " Municipality " in]their mind when they used the
word " town " in section 8.

We are unable to accept that contention. In the first
place, the word " town " is not defined in the N.-W. P. and
Oudh Municipalities Act, 1873,' and in the next place, even if
it had been, a definition in that Act would not have applied to
the word as used in a different Act unless it had been specially
incorporated in it. The object of the N.-W. P. and Oudh
Municipalities Act, 1873, asset out in the Preamble, was to
make better provision for the appointment of Municipal Com«^
mittees, and for the police, conservancy and local improve-*
ments, and for education, and for levying of taxes in the places
to which the Act might be extended ; it was no part of the ob-
ject of that Act to regulate the right of pre-emption in the
areas erected into municipalities. If the framers of the Oudb
Laws Acts, 1876, had intended that any land within the limits
of a municipality should be treated as being situated within a
" town " within the meaning of section 8 they would have ex-
pressed that intention in the Act itself.

When a word is not expressly defined in an Act it must
be read in its popular, natural and ordinary sense unless there
is reason upon the face of it to believe that it was not intended
to bear that construction. In its popular signification a "town'
moans " the space which, for the time being, is covered by, or
*' occupied as accessory to, houses collected together in a mass,