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

" and in sufficient number to be ordinarily designated as a
" Town ; and includes unbuilt-on lands that may be within the
" ambit of such collected mass of houses ; but not lands outside



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Vol VII.] THE OUUH OASES. IT

"such ambit, though within a borough." (Stroud's Judicial p'^^h^^



Pershad.

r.
heb-an-nii
and others.



Dictionary, s. v. " Town. ") „ . .^- .

It is clear that the question whether any particular piece
of land is situated within a " town " or not depends on whether
it is part of an urban area or not, and it is a question of ffict
which has nothing to do with the contingency of its being in-
cluded within the limits of a municipality for administrative
purposes. It may not always be easy to say whether any
particular piece of land is part of an urban area or not, but ill
the present case there is no doubt whatever that the land in
dispute is not situated within the limits of the town of Nawab-
ganj.

The learned pleader for the appellant was unable to cite
any authority in support of his contention. The following cases
were referred to i—Kishen Dial v. Alt Bahhsh, (1) Kadir
Bakhsh v. Gulam (2) Umar Bakhsh v. Abdul Karim (3)
and Collier v. Worth (4) but they do not help him in any way.
This appeals fails and is dismissed with costs*

(1) No. 87, Panj. Bee., (1890), 265.

(2) No. 74, Panj. Rec., (1895), 338.

(3) No. 70, Panj. Rec., (1898), 239.

(4) 1. Ex. D., 464.



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75 THE OUDH OASES. [Vol. VIL

RENT APPEAL, No. 85 OF 1903-*

Before Mr. Scott and Mr, Chamier.

1904 TiAm Raghubans Kuar (Plaintiff) v. Hashmat Ali and

Jan. 29. others (Defendants).

Code of Civil Procedure, ss. 27and368—Dedtk of plaintiff-
respondent pending appeal-^Addition or substitution of name as
plaintiff in a suit brought by one not entitled to bring it — Right
of defendant to dismissal of suit brought bg unauthorized person —
Procedure.

8 AllegiDg hlmtelf to be the heir of B who died in December I8M
brooght a siiit for arrears of rent against H in respect lOf a certain land which
formed part of the estate of B. H denied 5*s right to the estate of B
and stated that a suit for the whole estate had been brought against i9bj
the appellant. The Court of first hiittooe decreed S's, claim in part. At the
time when the decree Was passed the lkppellant*s suit was pending. J9r appeal*
ed to the Distriet Judge and 8 filed objections under sec. 561, 0. P. O. At
this stage the appellant's suit against 8 was decreed. The appellant then
Applied to haye her name entered on the record of the lower appellate Oourt in
place of that of ^9 in the suit for arrears of rent. The District Judge held that
the appellant was entitled to haye her name added to, apt sabstitnted lor, that
of i9 as a respondent.

Held that the appellant had no right to thrust herself as plaintiff into, the
Buit for arrears of rent which was brought by a person who had no right to
bring it. A defendant has a right to the dismissal of a suit brought against
him by an unauthorized person and the defect cannot be cured by the addition
or substitution of the name of the person who might haye brought the suit un^
less the case comes within s. 27, G. P. 0.



For Appellant. — Mr. Sen and B. Ramapat Ram.

For Respondent No. 2. — Mr. J.S. Misra.

Chamier, A. J. C. — This is an appeal in a suit for arrears
of rent brought against the first respondent Hashmat Ali by
Sheo Singh who died after the decision of the lower appellate
Conrt and is now represented by the remaining respondents.

* Against the decree of B. Lindsay Esq., C. 6., District Judge, Sitapur,
dated 25th July 1903 confirming the decree of M. Abdul Qadir, Deputy Collector,
Sitapur, dated 31st August 1901.



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Vol. ViI.] THE OUDH CASES. 79

The land to which the suit relates was part of the estate of Rani

one Balbhadra Singh who died in December 1898. Sheo Singh ituar

claimed to be entitled to the rent of the land as the heir of Haehmat Mi
Balbhadra Singh. Hashmat Ali denied that Sheo Singh ^^^ others.
had any right to the estate of Balbhadra Singh and in his written
statement mentioned that a sait for the estate had been brought
mgainst Sheo Singh by Ban! Baghnbans Knar the present
appellant. The Court of first instance held that Sheo Singh was
entitled to maintain the present snit inasmuch as his name had
been entered in the Bevenne Becords in plaoe of that of
Balbhadra Singh, and decreed the claim in part. At the time
when the decree was passed the suit of Baghabans Knar was still
pending. The respondent Hashmat Aliiappealed to the District
Judge and Sheo Singh filed objections under s. 54, Civil Prooe-
dure Code. Matters had reached this stage wb«n the Subordinate
Judge of Kheri passed a decree in favour of Baghubans Euar
against Sheo Singh for possesion of the whole estate of Balbhadra
Singh. That decree did not mention the preaeot suit but it
covered the villagei in which the land held by Hashmat Ali
lies. Baghubans Kuar then applied to have her name entered
in the record of the lower appellate Court in place of that of
Sheo Singh. The learned District Judge relying upon some
passages in the judgments in Rajaram r. Jiban (1) and
'Gokal Chand r. Kuar Sarat Chandra Sinffh (2) held that
Bani Baghubans Euar was entitled to have her name added io»
not substituted for, that of Sheo Singh, m respondent. He dis^
missed both the appeal and cross objection theresnlt being that
the decree for rent now stands in the name of Baghubans Euar
and Sheo Singh. Baghubans Euar has appealed to this Court
contending that her name should have been substituted for that
of Sheo Singh and that the decree should be in her favour alone.

In support of this contention Mr. Sen relies upon the

• cases mentioned by the learned Districti Judge and upon the

decision in Umasoondury Dassy v. Brajonath Bhuttacharjee (3)

(1) L L. B., 9 Bom., 151. (3) 1. L. B., 18 AU., 280.

(3) 1. L. B., 16 Calc, 317.



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80 THE OUDH CASES. [Vol. Vlt.

Rani and iSourendra Mohun Tagore v* Sirimoni Debt (1). In ray

Kuar opinion all these cases are clearly distinguishable from the

Hasbmat Ali Present casc. In the Bombay case (2) the respondent Krishna
And others, h^q Anandraw had sold all his rights in the property in
suit to the person who applied to have his name entered on the
record whereas in the present case Raghubans Kuar has not
by the decree of the Civil Court acquired theirights of Sheo
Singh either in the estate generally or in the decree ifor rent
obtained by Sheo Singh. On the contrary the decree of the
Subordinate Judge^ which has since been confirmed by this
Court, decided that Sheo Singh had no right at all to the estate
left by Balbhadra Singk. Therefore it is obvious that no rights
possessed by Sheo Singh have devolved upon Haghubans Kuar
under the decree obtained by her. In the Allahabad case (3 )
a receiver appointed in a i partition suit had brought a suit
for possession of property part of which was in the Aligarh
District and had obtained a decree. The defendent appealed
and during the pendency of the appeal a decree was made in
the partition suit whereby the Aligarh property was allotted
to Raja Indra Chandra Singh. It was held that the name
of the Administrator-General of Bengal representing Raja Indra
Chandra Singh should be added as respondent. In the earlier
Calcutta case (4) an executrix who had obtained probate
of a will brought a suit for rent after revocation of the pro-
bate. The son of the deceased applied for execution of the
'decree obtained by the executrix and it was held that he was
entitled to do so under s. 232 of the Code of Civil Proce-
dure because there had been a succession or transfer by operat-
ion of law. In the later case in I. L. R. 28 Calcutta, 171 the
Manager of an encumbered estate in' Chota Nagpur had
brought a suit for arrears of rent. Upon thei estate being
released it was held that the name of the persons alleging
themselves to be owners should be entered on the record provi-
sionally as plaintiffs so that a decree might »be passed. in favour
of any one or more of them who might ..be found to'be entitled

(I) I. L.R., 28Calc., 171. (2) I. L. R., 9 Bom., 151.

(3) I. L. R., 18 All., 285, (4) I. L. R., 16 Calc, 347.



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Vol. VIL THE OUDH CASES. .81

to the property* In the three last-mentioned cases the suit had Raghubana
teen filed by a person acting not for himself but for tlie benefit ^

o£ the owner of the property to which the suit related, and Hashaaat AM
'^ "^ - a&d other*.

when the person who .filed the Wt Qeased to be entitled to

carry on the litigation the name of the owner of the property
was entered on the record in his stead. In all tbese cases the
person who i instituted the suit had authority to sue for the
benefit of the owner of the property. The decree obtained by
Raghubans Kuar shows that wheo Sheo .Singh instituted the
present suit he was a trespasser. He did not represent the truo
owuer but was suin^ in his own interest alone. In my opinion
the cases relied upon by the appellant do not support her con-
tention, >

I can discover no case in which the name of the own^j of
an estate has been substituted or added so that a trespasser who
has brought a suit or obtained a decree for arrears of rent
against a tenant of land in an estate and on principle it seems
to me that stiob a coarse weald be wrong. A defendant iias a
right to the dismissal of a suit 'brought against him by an un-
authorized person. The defect cannot be cured by the addition
or substitution of the name of the person who might have
brought the suit unless of course the .c^^e cofnos within^. 27,Oivii
Prpceduro Qo^^ It appears to me that the appellant Raghuban3
Kuar has juo right to thrust heraelf as plaintiff into this suit
which was brought by a person who had »o right to bring it. In
my pjpinion the order of the lower appellate Court is wrong b^t
so far as it is in favonr of the appellant it must stand for there
is no cross appeal. For thape seasons I would dismiss thia
appeal with costs*

Scott, J. C. — For the reasons stated in the judgniept of
my learned colleague I would mal;e tb^ fame order and wish
only to add that the effect of allowing the appellant to Execute
the decree is that she will recover in the Revenue Court rent
of land for the mesne profits of which she has admittedly
obtained a decree from the Civil Court.



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«2 THE OUDH CASES. [Vol. VII.

MISCELLANEOUS APPLICATION, No. 1 OF 1904.*



{Before Mr, Scott.



1904. MuKTA Pbrshad end others v. King-Empeeoil

Fbb. 2.



Court Inspector^ seal e/, when conducting cases — Persons
conducting prosecution or defence not to occupy a seat on dais of
the CouM.



^0 person condaeting the prosecution or defence in a case should, under any
circumstances, be allowed to occupy a seat on the dais of the Court.



J'oR Applicants. — Messrs. Syed Alt AusaJt and Mohammed
Akhar.

Tor Grown. — The Government Pleader.

Scott, J. C. — This is an application for £he transfer o£ a
case in which the applicants have been called npon by the
Deputy Magistrate df Unao to show cause why they should
not be required to execute a bond for their good behaviour. An
^Iffidavit has l^een filed in support of the application and the
Beputy Magistrate 4ias filed a counter affidavit in which most
of the allegations of the Tipplicants are denied. The remaining
allegations are admitted and explained. In my opinion they
have been satisfactorily explained with the exception of one
wliich IS to the effect that the Court Inspector while conducting
the case for the pros^ciition, was permitted to occupy a seat
on the dais of the Court This was most improper. No person
conducting the prosecution or defence in a case should, under
any circumstances, be allowed to occupy a seat on the dais of

•Against the order of Rai Pitambar Das, Sub-Divibional Magistrate, Unao.



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Vol VII.J



THE OUDH CASES.



8a



the Court. If .a Court Inspector occupies a seat beside the
Magistrate, witnesses may be induced to believe that bis posi-
tion is similar to that o£ the Magistrate.

The Magistrate states in his affidavit that it is the usual
practice in his Court for the Court Inspector to occupy a seat
near the Police Moharrir on the dais. This being so, the fact
that the Court Inspector in the present case did occupy such a
seat affords no grounds for supposing that the applicant will
not have a fair and impartial trial. In no case ia future should
the Court Inspector be permitted to occupy a seat on the daiar
of the Court. The application is dismissed.



Mnkto
others.

9,

King-
Emperor..



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84 THE OUMt GASES. [VolVIL

lliBl^T APPEALS, Noft. 91 AND 93 OF 1903.^



Before Mr. Macleod and Mr, Chamier,



1904, Bhaiya Brij Raj Singh (Plaintiff) v. Bam Parghat and

March, 4. others (Defendants).



Profitij iviifor a »hafi of^RenditiM 4ffa4mint4, ixtitf^-^
lUni Act (Oudh)y 1886, i. 108 d. (16).



In a Buit «nder cl. (15) ». 108 of tbe Ondh Rent Act, 1886', the maia qnes*
lion was whether the suit was for "a share in the profits" op for " the rendering
and settlement of accounts in respect of those profitib*' The parties were the co-
sharers in upatti and colleetod the reals separately and paid the reyenue
separately. The plaintiff claimed for arrears of rent and profits, and the settle*
ment of accounts for the years running from 1306 to 1309 Fasli, He gave detail»
showing the gross rental, his own share, what he had realized and the balance
due to him. He prayed for the following. reliefs : — (a) that an order be passed
for the rendition of accounts, and (Jb) that on the accounts being made up his
claim may be decreed. Held^ that if a plaintifi claims a share of the profits,
whether he asks for a settlement of aceoants or not, as a necessary pteliminary
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 tbe plaintiff's suit was a suit for bi»
share ol the profits.



For Appellant : — B. Ishwari Prasad

For Respondents Nos. 14, 16, 17, and 18 :— Syed ZaKur
Ahmad viniMirm Samiullah Beg.

Macleod, A. J. 0. — Thfs was a suit under clause (15) of
s. 108 of the Oudh Rent Act, 1885, and the main question be-
fore us is whether it was for " a share of the profits '^ or for
"the rendering and settlement of accounts in respect o«f those

*Again»t the decree of H. Dupemex Esq., District Judge, Gonda, dated
2nd September 1903, modifying the decree of S, Abul Hasan, Deputy Collector^
Gonda, ^ated 3ath September 1902,



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Vol- VIIJ THE OCDH OASES. 85

profits". Th« limitation for a suit of the forniei- description is, ^Ra*' Shf h^
tinder ». 132, three years from the last day o£ the month of t-

Jeth of the Fasli year in which the arrear fell due, while for a 2Sd others.
snil of the latter description it is, under the general provis-
sions of s. 129, one year.

The parties are the co-sharers in a patti of three annas, and
it is admitted that they all collect the rents separately and pay
the revenue separately. The plaintiflE claimed *'for arrears of
rent amounting to Rs. 775-0-3^, and for profits, and the settle-
ment of accounts tor the years running from 1306 to 1309
Fasli". He gave details showing the gross rental, his own
share, what he had realised and the balapce due to him. He
prayed for the following reliefs : —

" (a) That an order be passed for the rendition of ac-
counts ;

(h) That on the accounts being made up his claim be
decreed ;"

And other reliefs not material to the present ques-*
tion.

The Deputy Collector held that it was a suit for profits)
and allowed them for the whole period claimed, to the extent of
Rs. 535-4-5, and specified the amount due from each defend-
ant.

The District Judge held that it was a suit for a settlement
of accounts, and disallowed the claim in respect of 1306, 1307
and 1308 Fasli as barred by limitation, and passed a joint
decree against all the defendants for Rs. 188-11-2^ in respect
of 1309 Fasli.

There are two appeals before us :—

Ho, 91— The plaintiff urges that the claim for 1306, 1507,
and 1308 Fasli was improperly disallowed-



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80 THE OUDH CASES. {Vol Vlt.

^*'stngh^ No. 93— Some of the defendants object that the decree

r. should not have been a joint one, and that the

and others. figures are not correct. It is admitted that if the

plaintiflTs appeal is successful the figures in the
Deputy Collector's decree are correct.

There has been much argument of the kind familiar in the
North-Western Provinces before the new Tenancy Act in that
Province was passed, which now provides for a uniform period
of limitation in both cases.

The difficulty is to find some criterion for distinguishing
between the two classes of suits. Many suits for a share of the
profits involve a settlement of accounts ; most suits, if not
every one, asking for a settlement of accounts, which come be-
fore the Courts, are only brought with the object of obtaining
a money decree based on the plaintiff's share of the profits. It
may be that suits are sometimes brought for a settlement of ac-
counts pure and simple, but if so they have not come to my
notice.

The Allahabad High Court has had to deal with the ques-
tion on various occasions ; it is sufficient to refer to two cases.
In DeU Din v. Durga Pershad (1) it was held that a co-
sharer may sue for profits, alleging a sum to be due, and al-
though it may be necessary to go into the accounts, this fact
alone will not alter the character of the suit and make it one
for a settlement of accounts. In Malik Muhammad Karim v.
Ganga Pande (2) the Court attempted to lay down a criterion ; —
" What has to be looked to is the main and substantial object of
^^ the suit. If the main and substantial object of the suit is to
^^ obtain a settlement of accounts, and the obtaining a decree for
*^ a share of the profits is only the ulterior object of obtaining
*^ such settlement of accounts, then the suit is to be regarded
^^ as a suit for the settlement of accounts," and so conversely.
I do not think that this carries us much further than be-
fore, and it is difficult to see how it can be treated as a

(1) N. W. P. (1871). 49 (2) I, L. R. 22 All: (1900). 334



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Vol. VIl.] THE OUDH CASES. 87

workable solution o£ the difficulty. How in any specific case Bhaiya Brij
where the plaintiff asked for a money decree could the ob- r.

taining of that decree be held to be merely an "ulterior ^^ othe!^*
object" of the suit and not the " main and substantial " one ?
If any general principle has to be laid down I should say
that if a plaintiff claims 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
of a suit 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.

Whatever view i? taken of this point I do not think there
can be any doubt that what the plaintiff wanted in this case,
and what he asked for, was his share of the profits.

I would allow the plaintiff's appeal (No. 91) and set aside
the decree of the lower appellate Court and restore that of the
Court of first instance. I would dismiss the defendants' appeal
(No. 93). I would allow the plaintiff his proportionate costs in
all three Courts as regards appeal No. 91, and leave the
parties to pay their own costs in this Court in appeal No. 93.

Chamieb, a. J. C. — ^The only question in these appeals is
whether the suit of the plaintiff Brij Raj Singh is a suit for
settlement of accounts or a suit for his share of the profits of the
patti in which he and the defendants are co-sharers. The period
of limitation for a suit of the former description is one year
from the date of accrual of the cause of action while the period
of limitation for a suit of the latter description is 3 years from
the last day of the month Jeth of the Fasli year for which
profits are claimed.

In the case of Thakur Bakhsh v. Bhagwan Din (1), I in-
advertently stated that the period of limitation for both suits is
the same. The mistake which fortunately did not affect the

(1) 1 Oudh Cases, 215.



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88 THE 013 DH CASES. [Vol. VIT.

•haiya Brij decision, was corre<5ted by me in a later casei which has not

Raj Singh ' ^

V. been reported.

Bam Parghait

In Rohan v. Jwala Per shad (1) and again in Malik
Mohamad Karim y. Ganga Ram (i) the Allahabad High Court
held that in order to determine whether a suit by a co-eharer
against a lambardar or against one or more co-sharers, in wjiich
the Court is asked to adjust the aceouats between the parties, 13
u suit for settlement of accounts or a suit for a share of
profits, it is necessarj to look at the plaint and if the main and
substantial object of the suit is to o1)tain a settlement of aiccounts
and obtaining a decree for the share of the profits is only the
ulterior object of obtaining such settlement of accounts, then
the suit is to be regarded as a s«it for settlejoaent of accounts.
3at if the main and substantial object of the suit is to recover a
share of profits which the defendant has received in excess of
what he is entitled to and if the Court is only asked to
go iato the accounts incidentally to that main object thei) the
6uit is not a suit for settlena^nt of accouots merely, but it is
a suit for a share of profits. As pointed by ray learned col*
league, the test suggested by the High Court is not satisCao-
tory. la every suit in which plaintiff daims a decree for a
^defin^e sum as profits or estimates the amount due to him and
claims a decree for such amount as mny be found due to him,
the main object of the suit is plainly the recovery of the amount
due to the plaintiff. Upon consideration I agree with my
learned colleague that all such snits should be regarded as suits
for profits whether the plaintiff asks the Court to msdce up
the accounts or not. It is said that in thisiview there can be
no such thing as a suit for settlement of accounts. I cannot
admit this. Co-sharers in an estate are Abound to render
accounts to each other and every co-sharer has a right to
compel a settlement of accounts. A co-sharer may be satisfied
with the amount which he has received on account of his share
.cf profits or he may know that he has received more than his
tfihare and be willing to pay the balance to those who have
■' — #

(1) I. L. R., 16 AU., 333. (2) I. L. R., 22 AU., 334.



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Toi VUO THE OUDH CASKS. 69

received Use than their ahw- In wtbor case he way iriab to ^Jf^JjJ*
have the accounts settled at once and so avoid the annoyance ^Kxhu

of a suit two or three years Utter when a settlement of acconnts uid oth^ti.
will be much more difflcnli. Such a co-sharer may sue for
settlement of acconnts withont demanding payment of any
anm at all. In the present suit the plaintiff claims a settlement
of aocoiinl9 mid also a decree for Rs. 775 or any larger sum
which may be fotmd doe. I agree with my learned colleague
that this is a suit for a share of profits and would make the
order which he proposes.



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«0 THE OUDH CASES. [Vol. VU.

SECOND CIVIL APPEALS, Nos. 37, 48 AND 49 OF 1903-*



Before Mr. Macleod and Mr. Chamier.



jgQ^ Raja Ramkshab IBakhsh Singh (Plaint^ v. Babu

Mabch/ 4. Bhagwan Bakhsh Singh and another (JDe/endants).



Ghuzara land^ suit for possession of^^Estate for life — Gvanl
for maintenance in _j>erp^mty^ how to be construed — Award by
British Indian Association — Oudh Estates Ad 1869, s. 33.



The plAintiirs ijeat-grand-fathar ^franted a Tillage as guutra to the ddfead-

' ant*8 father. Sabaequentlj in conseqaence of certain dispntes the plaintiff's

' grand-father agreed tegire the defendants* father a further cash allowance whieh

was changed for land. The plaint£S broogfat a suit against the defendants to

'TecoTer possession of this land on the ground that the grant was only for the lile

- of the defendant's father,

Jffeldy that the grant was for Hfe only and thiM^the ^plaintiff was entitled to