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Tulshi Prasad Vs. Mathura Prasad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1931All449
AppellantTulshi Prasad
RespondentMathura Prasad
Excerpt:
- .....money there was no legal necessity. this sum has been proved to have been taken for the payment of canal dues and it was proved by the evidence of a clerk from the treasury that this money was paid on 8th september 1915 by mt. mohani kunwar into the treasury for canal dues. the ground taken in second appeal is that this payment did not stand on the same footing as the payment of government revenue and that it could have been collected only from-defaulting tenants. the assumption of learned counsel for the appellant is that this sum was paid by mt. mohani kunwar as a lambardar on behalf of tenants and not on behalf of herself. there is nothing at all on the record to support such an assumption. mt. mohani kunwar was admitted in the written statement of the appellant - para. 5, additional.....
Judgment:

Bennet, J.

1. This is a second appeal by a defendant against a decree of the lower appellate Court, under which the plaintiff-respondent was decreed recovery of certain sum of money on a mortgage bond of 23rd July 1915. This mortgage bond was for Rs. 500 and was executed by one Mt. Mohan; Kunwar, maternal grandmother of the appellant defendant. In second appeal it has been argued that in regard to Rs. 366-7-0 of this Rs. 500 mortgage money there was no legal necessity. This sum has been proved to have been taken for the payment of canal dues and it was proved by the evidence of a clerk from the treasury that this money was paid on 8th September 1915 by Mt. Mohani Kunwar into the Treasury for canal dues. The ground taken in second appeal is that this payment did not stand on the same footing as the payment of Government revenue and that it could have been collected only from-defaulting tenants. The assumption of learned Counsel for the appellant is that this sum was paid by Mt. Mohani Kunwar as a lambardar on behalf of tenants and not on behalf of herself. There is nothing at all on the record to support such an assumption. Mt. Mohani Kunwar was admitted in the written statement of the appellant - para. 5, additional pleas-to have a very large income from zamindari properties. We have not been shown under the Northern India Canal and Drainage Act (Act 8 of 1873), to which learned Counsel referred, that proceedings can be taken against a lambardar for canal dues due from tenants. On the contrary that Act lays down that canal dues should be recovered from the occupiers under Section 36 and in Section 45 it is provided that any sum which has remained unpaid shall be recoverable by the Collector from the persons liable as if it was an arrear of land revenue. We consider therefore that canal dues stand on the same footing as land revenue for the question of legal necessity. Accordingly we hold that the lower appellate Court was correct in its decision and we dismiss this appeal with costs.


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