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Faiz Muhammad and ors. Vs. Inayat HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1923)ILR45All335
AppellantFaiz Muhammad and ors.
Respondentinayat HusaIn and ors.
Excerpt:
.....74; 1993 lab ic 1858 overruled]. - according to that ruling, section 92 would not apply to a suit like the present in which the plaintiffs assert that they have been appointed trustees already by the public, and that the defendants, the former trustees, have been properly dismissed, and they seek possession on the ground that the defendants are now mere trespassers......and that the order asked for involved removing an old trustee and vesting the property in the plaintiffs as trustees, and that, in bringing this suit, they were asserting, not in private individual right merely, though no doubt a private individual right is involved, but a right on behalf of the community which has elected them; in other words, a general public right. this is, in substance, the argument which was submitted to this court in the case of muhammad abdul majid v. ahmad said khan (1913) i.l.r. 35 all. 459 on behalf of the respondents, and if the matter were res integra, i should feel difficulty in following the decision in that case. but as there seems a weight of authority in support of the view taken in that case and the matter is one of no practical importance and it.....
Judgment:

Walsh, J.

1. In this case I can see no satisfactory answer to the view expressed in the judgment of the first court. Left to my own view, I should hold unhesitatingly that this was a suit by the plaintiffs to recover possession of an imambara by virtue of having been appointed as trustees in the place of the defendants, and that the order asked for involved removing an old trustee and vesting the property in the plaintiffs as trustees, and that, in bringing this suit, they were asserting, not in private individual right merely, though no doubt a private individual right is involved, but a right on behalf of the community which has elected them; in other words, a general public right. This is, in substance, the argument which was submitted to this Court in the case of Muhammad Abdul Majid v. Ahmad Said Khan (1913) I.L.R. 35 All. 459 on behalf of the respondents, and if the matter were res Integra, I should feel difficulty in following the decision in that case. But as there seems a weight of authority in support of the view taken in that case and the matter is one of no practical importance and it is desirable that the practice of the Court in these matters should be uniform, I, with considerable hesitation, agree with the order and dismiss the appeal.

Ryves, J.

2. I think that the question involved in this appeal is covered by authority in Muhammad Abdul Majid v. Ahmad Said Khan (1913) I.L.R. 35 All. 459 which was a case under the present Procedure Code. Most of the previous authorities under the old Code were then considered. According to that ruling, Section 92 would not apply to a suit like the present in which the plaintiffs assert that they have been appointed trustees already by the public, and that the defendants, the former trustees, have been properly dismissed, and they seek possession on the ground that the defendants are now mere trespassers. This decision has been followed in the case of Ayatunnessa Bibi v. Kulfu Khalifa (1914) I.L.R. 41 Calc. 749 and, so far as I know, has not been dissented from in any reported decision. I think, therefore, the weight of authority is against the appellant's in this case. I, therefore., agree in dismissing the appeal.

3. The order of the Court is that this appeal is dismissed with costs.


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