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

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in71Ind.Cas.767
Appellantinayat HusaIn and ors.
RespondentFaiz Muhammad and ors.
Cases ReferredAyatannessa Bibi v. Kulper Khalifa
Excerpt:
civil procedure code (act v of 1908), section 92, application of. - - 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......they were asserting, not a 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 saeed khan 20 ind. cas. 37 a. 459 : 11 a.l.j. 673, 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.....
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 a 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 Saeed Khan 20 Ind. Cas. 37 A. 459 : 11 A.L.J. 673, 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. Muhammad Abdul Majid v. Ahmad Saeed Khan 20 Ind. Cas. 37 : 35 A. 459 : 11 A.L.J. 673, 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 Ayatannessa Bibi v. Kulper Khalifa 22 Ind. Cas. 677 : 41 C. 749 : 19 C.W.N. 234 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 appellants in this case. I, therefore, agree in dismissing the appeal.

3. The order of the Court is that this appeal is dismissed with costs including fees on the higher scale.


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