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Syed Madad Ali Vs. Sheikh Shamsher Ali - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in63Ind.Cas.103
AppellantSyed Madad Ali
RespondentSheikh Shamsher Ali
Cases ReferredJaimal Singh v. Shib Saran Singh
Excerpt:
agra tenancy act (ii of 1901,), section 199 - suit for profits by legal representative of deceased--denial of right--court, duty of, to decide question of title or refer parties to civil court. - .....in the present suit and there is no dispute in regard to it. two of the other mortgagaes were ilahi baksh and musammat jhanduli bibi. they are dead, and the plaintiff says that he is one of their legal representatives and is entitled to the portion of the profits to which those persons were entitled. he accordingly claims profits in respect of the mortgagee rights of his own father and of his alleged legal share in the estate of ilahi baksh and jhanduli bibi. as i have said above, there was no dispute as to the plaintiff's title in regard to his father's share. as records the profits whish he claims on account of the mortgagee rights of ilahi baksh and jhanduli bibi, the defense was that the plaintiff was not the legal representative of those persons and that he was not entitled to.....
Judgment:

P.C. Banerji, J.

1. This appeal arises onto a suit for profits brought by the plaintiff-appellant in a Court of Revenue. The property in respect of whish profits have been claimed belonged to one Debi Din Lal In 1875 he executed a usufruatuary mortgage of it in favour of several persona who were in possession in proportion to the amounts advanced by them. The plaintiff's father was one of these mortgagees and he was entitled to the profits relating to his share. This is claimed by the plaintiff in the present suit and there is no dispute in regard to it. Two of the other mortgagaes were Ilahi Baksh and Musammat Jhanduli Bibi. They are dead, and the plaintiff says that he is one of their legal representatives and is entitled to the portion of the profits to which those persons were entitled. He accordingly claims profits in respect of the mortgagee rights of his own father and of his alleged legal share in the estate of Ilahi Baksh and Jhanduli Bibi. As I have said above, there was no dispute as to the plaintiff's title in regard to his father's share. As records the profits whish he claims on account of the mortgagee rights of Ilahi Baksh and Jhanduli Bibi, the defense was that the plaintiff was not the legal representative of those persons and that he was not entitled to any share out of the share of Ilahi Baksh and Jhanduli Bibi. The Trial Court framed an issue as to the plaintiff's title, but destined to try it and observed as follows in its judgment: 'The question of inheritance cannot be decided by a Revenue Court in a profits suit.' It accordingly dismissed the claim in respect of the amount claimed by the plaintiff out of Ilahi Baksh and Jhanduli's shares. Toe plaintiff appealed to the lower Appellate Court. The foamed Judge says in his judgment:

The greater portion of his claim whish was founded on an assertion that he was heir to certain persons being denied, and he never having filed any Civil suit to establish that he was the heir of those persons, this claim was rightly dismissed,

2. In declining to try the question of title raiced by the plaintiff and denied by the defendant, both the Courts below have committed an error. The plaintiff was not recorded in the Revenue papers as mortgagee who had succeeded to Ilahi Baksh and Jhandmli Bibi. But he claimed a right to a share of the profits to which the aforesaid persons were entitled. To a case of this kind the section of the Tenancy Act applicable was Section 201. The plaintiff not being recorded as having the right entitling him to institute the suit as regards profits relating to the chares of Ilahi Baksh and Jhanduli Bibi and the defendant; having pleaded that the plaintiff had not such right, the Court ought to have proceeded mutatis mutandis in the manner provided for in Section 199, that is to say, the Court of first instance should either have proceeded to try the question of title and to try it an a Civil Court, or it ought to have referred the parties to the Civil Court by an order in writing, Neither of these course was adopted by the Assistant Collector or was directed by the lower Appellate Court to be adopted by the Assistant Collector. That this is the course which ought to be followed in a case of this kind was pointed out in the case of Jaimal Singh v. Shib Saran Singh 46 Ind. Cas. 115 : 16 A.L.J. 504. I must, therefore, send bank the case to the Court of first instance with directions to adopt the procedure indicted by Section 199 of the Tenancy Act with necessary modifications to snit the circumstances of this case. I allow the appeal, set aside the decrees of the Courts below as regards the portion of the share referred to above and remand the case to the Court of first instance with directions to follow the procedure indicated above. Costs here and hitherto will of costs in the cause.


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