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Mukhtara Vs. Sardara - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All417; 71Ind.Cas.444
AppellantMukhtara
RespondentSardara
Cases ReferredMumtaz Begam v. Fateh Husain
Excerpt:
civil procedure code (act v of 1908), order xli, rules 25, 26, 31 - issues referred of lower court--return received--no objection made within lime--duty of appellate court. - - after the findings which were against the defendant had been received the defendant failed to prefer objections to the findings within ten days' time allowed......the suit was decreed by the court of first instance. the defendant went up in appeal and the learned judge of the lower appellate court referred certain issues for trial to the court of first instance. after the findings which were against the defendant had been received the defendant failed to prefer objections to the findings within ten days' time allowed. the learned district judge thereupon without considering the findings on the merits decided the appeal considering those findings to be final, and dismissed the appeal. the defendant comes here in second appeal and says that this action of the learned district judge was not warranted by law, and that he ought to have himself considered whether the findings were good or bad findings and should have then decided the case. in.....
Judgment:

Gokul Prasad, J.

1. This is a defendant's appeal arising out of a suit for possession of a house against the defendant as a trespasser. The suit was decreed by the Court of first instance. The defendant went up in appeal and the learned Judge of the lower Appellate Court referred certain issues for trial to the Court of first instance. After the findings which were against the defendant had been received the defendant failed to prefer objections to the findings within ten days' time allowed. The learned District Judge thereupon without considering the findings on the merits decided the appeal considering those findings to be final, and dismissed the appeal. The defendant comes here in second appeal and says that this action of the learned District Judge was not warranted by law, and that he ought to have himself considered whether the findings were good or bad findings and should have then decided the case. In support of this contention the case of Mumtaz Begam v. Fateh Husain 6 A. 391 : A.W.N. (1884) 129 : 4 Ind.Dec. (N.S.) 61 has been referred to me. This contention is fully borne out by the ruling relied upon and the learned District Judge ought to have himself considered the correctness or otherwise of the findings returned by the Munsif before deciding the appeal. I, therefore, refer the following issue to the lower Appellate Court for decision:

(sic) Was the house in dispute appurtenant to Shibba's holding or not, and did it revert to the zemindar on his dying issueless?

2. The Court below will decide the issue on the evidence already on the record and return its finding to this Court at an early date. On receipt of the finding the usual ten days will be allowed for objections.


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