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Udoy NaraIn Jana Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in47Ind.Cas.297
AppellantUdoy NaraIn Jana
RespondentThe Secretary of State for India in Council
Cases ReferredSumbhoolall Girdhurlall v. Collector of Surat
Excerpt:
abwab - annual payment for upkeep of embankment, nature of--long-continued payment from time immemorial, whether creates title in favour of recipient. - .....was on the various prayers in the plaint. but on behalf of the secretary of state it is stated that all that is desired is a decree for money. there will be eliminated from the decree of the lower appellate court so much as is not a decree for payment of the sum of money claimed. this will be, not because we determine these declarations are erroneous, but because they should not be embodied in a decree in a suit of this character. the appellant must pay the costs of this appeal.holmwood, j.4. i agree.
Judgment:

Lawrence Jenkins, C.J.

1. This appeal arises out of a claim by the Secretary of State for India in Council for a small sum of money which is described as peshkash. The principal defence that has been urged before us is that the annual sum claimed is an abwab. The facts negative that suggestion. The claim is by the Secretary of State, not as a landlord but as representing the Government and claiming payment of that which is payable to the Government in respect of certain embankments the upkeep of which is necessary for the preservation of land, including that to which the present defendant is entitled. The claim does not rest in any sense on the relation of landlord and tenant Therefore, we may at once negative the plea which suggests that the claim is bad as being an abwab.

2. The it is said, what is the basis of this claim? The basis is long continued payment beyond the memory of man, which in itself is a title in favour of the recipient of the annual payment. That in itself is sufficient. There is an authority of the Privy Council in. the case of Sumbhoolall Girdhurlall v. Collector of Surat 8 M.I.A. 1; 4 W.R.P.C. 55 : 1 Suth. P.C.J. 387 : 1 Sar. P.C.J. 713 : 10 E.R. 431 where that was regarded as a sufficient defence for a claim of annual payment, though that payment had a vicious origin. Here there is no vice in the origin. On the contrary the consideration for the payment is most beneficent work. There is, in my opinion nothing' in the answer that is advanced on behalf of the defendant.

3. The only matter to which exception may be taken in the decree of the lower Appellate Court is, that it is expressed in such wide, vague and inconclusive terms that it is perhaps difficult to know precisely what the determination of the Judge was on the various prayers in the plaint. But on behalf of the Secretary of State it is stated that all that is desired is a decree for money. There will be eliminated from the decree of the lower Appellate Court so much as is not a decree for payment of the sum of money claimed. This will be, not because we determine these declarations are erroneous, but because they should not be embodied in a decree in a suit of this character. The appellant must pay the costs of this appeal.

Holmwood, J.

4. I agree.


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