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Muhammad HusaIn Vs. Badri Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1895)ILR17All423
AppellantMuhammad Husain
RespondentBadri Prasad
Excerpt:
act no. xii of 1881 (n.w.p. rent act), section 93 - suit by recorded co-sharer for recorded share of profits--adverse possession. - - 20, are clearly in the respondent's favor......the plaintiff relies on the fact that he is a recorded co-sharer. he does not assert that he ever received profits of the shares of which he is recorded as being in possession. it appears that he brought a suit to recover the profits for 1283 fasli which would fall due on the 1st of august 1876. there is nothing on the record to show when this suit was brought; but it appears from a copy of the assistant collector's judgement that it was decided on the 26th of august 1879. from that judgment it appears that the defendants to that suit raised a plea similar to that which is now put forward, namely, that the plaintiff had never received any portion of the profits. the assistant collector in 1879 gave the plaintiff a decree, but this decree was set aside in appeal, for what reasons does.....
Judgment:

Aikman, J.

1. This was a suit under Clause (h) of Section 93 of Act No. XII of 1881 to recover profits for the years 1293, 1294 and 1295 F. The defence was that, although the plaintiff had purchased this property about 21 years ago, he had never got possession of it, and that for upwards of 12 years the defendant had been in adverse possession. The Court of First Instance, the Assistant Collector of Aligarh, decreed plaintiff's claim in part. On appeal this decree was reversed by the learned District Judge, who dismissed the plaintiff's claim. The plaintiff comes here in second appeal. The plaintiff relies on the fact that he is a recorded co-sharer. He does not assert that he ever received profits of the shares of which he is recorded as being in possession. It appears that he brought a suit to recover the profits for 1283 Fasli which would fall due on the 1st of August 1876. There is nothing on the record to show when this suit was brought; but it appears from a copy of the Assistant Collector's judgement that it was decided on the 26th of August 1879. From that judgment it appears that the defendants to that suit raised a plea similar to that which is now put forward, namely, that the plaintiff had never received any portion of the profits. The Assistant Collector in 1879 gave the plaintiff a decree, but this decree was set aside in appeal, for what reasons does not appear, as no copy of the appellate judgment is produced. In appeal it is urged that the plaintiff's claim was not barred by any adverse title acquired by the defendant, inasmuch as the defendant for the first time in 1879 denied the plaintiff's title. With regard to that plea I would observe that it is not shown that it was in 1879 that the defendant first denied the plaintiff's title. From the defence in the former suit and from the fact that it is not shown that the plaintiff ever received any profits from this share, I infer that the defendant has all along denied the plaintiff's title. The rulings of this Court in Maksood Ali Khan v. Ghazee-ood-deen N.W.P. H.C. Rep. 1868 p. 158, and Tulshi dinghy. Lachman Singh, Weekly Notes, 1881 p. 20, are clearly in the respondent's favor. In my opinion the decision of the Lower Appellate Courts right. I dismiss this appeal with costs.


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