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Sadasiva Pillai and anr. Vs. Kalappa Mudaliar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1901)ILR24Mad39
AppellantSadasiva Pillai and anr.
RespondentKalappa Mudaliar and anr.
Excerpt:
general clauses act (madras) - act i of 1891, section 8--appellate jurisdiction of high court in cases instituted under enactments in force at time of institution of suit but repealed before hearing of appeal--civil procedure code--act xiv of 1882, section 540--appeal. - - the district judge held quite rightly, that notwithstanding the notification he had jurisdiction to hear the suit on the ground that it bad been instituted before the notification came into force. to say that the judge ought not to have dismissed the suit altogether but only the suit of the first plaintiff, and as to the first ground we are clearly of opinion that the judge was wrong in his view that the suit should have been for a declaration for there was no doubt as be the second plaintiff's title......instance had jurisdiction to entertain the suit when the suit was instituted and the parties had a right of appeal when the suit was instituted, is saved by section 8 of the madras general clauses act, 1891, unless the right of appeal has been taken away in express terms. this right of appeal has been expressly taken away by act ii of 1897 in the case of suits under regulation vi of 1831. there is no enactment which, in express terms, takes away the right of appeal in suits brought under regulations xxv and xxix of 1802.3. the preliminary objection is overruled.4. coming now to the merits, the second plaintiff is undoubtedly the title-holder of the office of karnam, and the suit is for possession of that office and the removal of the second defendant and for the recovery of the fees due.....
Judgment:

1. A preliminary objection has been taken that no appeal lies.

2. The suit was instituted in the District Court of Chingleput on 5th August 1897. In October 1897 a notification was published under Section 2 of Madras Act II of 1894. The effect of this notification was that as from the date of the notification Section 11 of Regulation XXV of 1802 and Regulation XXIX of 1802 ceased to apply to the office of karnam. The District Judge held quite rightly, that notwithstanding the notification he had jurisdiction to hear the suit on the ground that it bad been instituted before the notification came into force. The question before this Court is, have we jurisdiction to hear an appeal from the District Judge's decree dismissing the suit? We are of opinion that we have. The appeal is from a Court exercising original jurisdiction, and this Court, if Act II of 1894 had not been passed, would have appellate jurisdiction by virtue of Section 540 of the Civil Procedure Code in suits brought under the Regulations above referred to. In our judgment the appellate jurisdiction of this Court in cases where the Court of First Instance had jurisdiction to entertain the suit when the suit was instituted and the parties had a right of appeal when the suit was instituted, is saved by Section 8 of the Madras General Clauses Act, 1891, unless the right of appeal has been taken away in express terms. This right of appeal has been expressly taken away by Act II of 1897 in the case of suits under Regulation VI of 1831. There is no enactment which, in express terms, takes away the right of appeal in suits brought under Regulations XXV and XXIX of 1802.

3. The preliminary objection is overruled.

4. Coming now to the merits, the second plaintiff is undoubtedly the title-holder of the office of karnam, and the suit is for possession of that office and the removal of the second defendant and for the recovery of the fees due to second plaintiff as forming part of the emoluments of that office. The Judge has thrown out the suit on the ground (i) that it ought to have been a suit for a declaration and as such was time-barred, and (ii) that there was a misjoinder of the first plaintiff, the uncle of the second plaintiff, inasmuch as only the second plaintiff had the titular right to the office, and the first plaintiff had no joint right as he claimed. As to the latter ground it is sufficient; to say that the Judge ought not to have dismissed the suit altogether but only the suit of the first plaintiff, and as to the first ground we are clearly of opinion that the Judge was wrong in his view that the suit should have been for a declaration for there was no doubt as be the second plaintiff's title. All he wanted was to get possession of the office which was his by right, and his suit was therefore properly brought to obtain possession. As such suit it fell under Article 124 of the second schedule to the Limitation Act and was within time. The facts proved are that second defendant is in possession of the office and that he has no right thereto; also that the merah fees which were payable to the second plaintiff amounted to Rs. 84 per annum. There will, therefore, be a decree in reversal of the lower Court's decree, directing the removal by the first defendant of the second defendant from the office of karnam, and of karnam only, the office of nottam, if distinct from that of karnam, not being subject to our jurisdiction, and the installation of the second plaintiff therein, and for the recovery by second plaintiff from first and second defendants, on account of merahs, of the sum of Rs. 84 due before suit and of Rs. 353-0-6 due from date of suit till this date, being at the rate of Rs. 84 per annum. The second plaintiff will have his cost from first and second defendants throughout.

5. The suit as by first plaintiff is dismissed but without costs as, though he was in error in joining in the plaint, he had always been recognised as one of the Ismdars, that is, as one of the family in which the hereditary right to the office of karnam was vested.


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