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TMI Blog1937 (2) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... of each particular case it will be necessary to set out at some length the facts which gave rise to the earlier litigation and out of which litigation the present cases arise. The shares in the villages of Chakhathal and Kakathal originally belonged to Abdul Shakur Khan, Abdul Aziz Khan and Abdul Latif Khan. The relationship of these persons with the appellants and the respondents in these present appeals will be seen from the pedigree given below: 3. Though the properties concerned in these present appeals belonged to Abdul Shakur, Abdul Aziz and Abdul Latif Khan, they stood in the name of Kunwaf Ubaid-Qilah Khan, who it will be seen from the pedigree was a son of one of the brothers of Abdul Shakur Khan and a cousin of Abdul Aziz Khan and Abdul Latif Khan. It appears that the properties in question had been acquired by Abdul Shakur Khan, Abdul Aziz Khan and Abdul Latif Khan but that the sale deeds had been executed in favour of Ubaid-Ullah Khan as benamidar. Abdul Aziz Khan predeceased Abdul Latif Khan by a number of years and the latter died in. the year 1909. Abdul Shakur Khan died in the year 1915 and the plaintiffs in Suit No. 100 of 1032 which gives rise to First App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im to the greater portion of the property was barred by Section 66, Civil Procedure Code, but decreed their claim in so far as the wakf property was concerned. He held that though Abdul Latif Khan had made a wakf of this property, the wakf had never been acted upon and was in fact a dead letter. The result, therefore, was that the plaintiffs' claim succeeded as to a small part of the property but failed as to the greater portion thereof. The plaintiffs in the suit appealed against this decision of the learned' Additional Civil Judge of Aligarh and the defendant Ubaid-Ullah Khan filed a cross-objection. The appeal was heard in this Court and was disposed of on January 15, 1921. This Court upheld the learned Additional Civil Judge's finding that the plaintiffs' claim was barred by reason of Section 66, Civil Procedure Code, and consequently dismissed their appeal. It however allowed the defendants' cross-objection and held that the wakf created by Abdul Latif Khan was a valid one and that the defendant was entitled to possession of the wakf property as mutwalli. The result, therefore of the appeal was, that the plaintiffs' claim was dismissed in its entirety. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal to His Majesty in Council was heard and determined on June 17, 1929, and their Lordships upheld the plaintiffs' claim to possession of the properties other than the wakf properties. Their Lordships, however, held the wakf to be a valid and binding wakf and consequently held that the plaintiffs had no right to possession of that portion of the properties against the Mutwalli Ubaid-Ullah Khan. The result of the appeal therefore was that the plaintiffs' claim was decreed with respect of all the properties other than those which had been made wakf by Abdul Latif Khan. It is to be observed that no mention appears to have been made during the appeal before their Lordships of the later decision of this Court upholding the validity of the wakf to the extent of 1-3rd only though that decision not having been appealed against had become final and binding between the parties. We have carefully perused the judgment of their Lordships and we fail to find any reference whatsoever to the later judgment of this Court respecting the wakf. The result of this long and protracted litigation, therefore, was that the heirs of Abdul Shakur Khan, Abdul Aziz Khan and Abdul Latif Khan had establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was suspended until the decision of their Lordships of the Privy Council on June 17, 1929. In our judgment the plaintiffs' claim was clearly governed by Article 109, Limitation Act. That article provides that in a suit for profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant the period of limitation is three years from the time when the profits were received. As we have stated, there was no claim to any profits received by the defendant within three years of the suit and that being so, the claim was, in our judgment, clearly barred. 12. In our judgment, once the period of limitation has begun to run, it cannot be suspended unless such suspension is provided for expressly in the Limitation Act. This was held in Ram Charan Sahu v. Goga AIR1927All446 . In that case a Bench of this Court consisting of Lindsay and Sulaiman, JJ. expressly held that the period of limitation cannot be suspended once it has begun to run unless that suspension is itself provided for in the Limitation Act. In our judgment that case should be followed and that being so, we hold that the period of limitation in this case was not suspended as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 058-0-5. Abdul Jalil Khan gave Ubaid-Ullah Khan credit for the rents and profits of a third of the wakf property in this village of Kakathal and claimed the difference in the suit, viz., ₹ 15,448-4-3 as money which he had been compelled,to pay during the pendency of the litigation which culminated in the appeal to His Majesty in Council. The result of this last appeal showed that the defendant was not entitled to these moneys and therefore it was said he should be compelled to re-pay them. 15. The defendant Ubaid-Ullah Khan raised a number of pleas to this claim. In the first place he contended that the moneys had been obtained by him from the plaintiff under decrees, of competent Courts which were still subsisting and valid and had never been reversed. He further contended that in any event he was entitled to be given credit for the profits relating to the whole of Abdul Latif Khan's interest in this village of which he had made wakf. It was the defendant's case that their Lordships of the Privy Council had maintained the validity of this wakf not merely as to a third of it as contended by the plaintiff but with respect to the whole of the property made wakf. He a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 546 : 4 RR 439 : 2 LC Ed. 403 were, that the defendant had formerly brought an action against the plaintiff for the price of goods sold and delivered for which the plaintiff had paid and had obtained the defendant's receipt for the same. The plaintiff being unable to find the receipt at the time and having no other proof of payment was unable to defend the action and was obliged to submit and pay the money again. Later the plaintiff found the receipt and brought an action for money had and received in order to recover back the amount of the sum so wrongfully enforced in payment. It was held that he could not recover the money which had been paid under legal process, however, un-conscientiously retained by the defendant. The law as laid down by Marriot v. Hampton (1797) 7 TR 269 : 2 Esp. 546 : 4 RR 439 : 2 LC Ed. 403 was discussed by their Lordships of the Privy Council in Shama Purshad Roy Chowdhury v. Hurro Purshad Roy Chowdhury 10 MIA 203 : 3 WRPC 25 Page of 10 M.I.A.--[Ed.]. Turner, L.J. who delivered the judgment of the Board, observes There is no doubt that, according to the law of this country-and their Lordships see no reason for holding that it is otherwise in India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se in Shama Purshad Roy Chowdhury v. Hurro Purshad Roy Chowdhury 10 MIA 203 : 3 WRPC 25 to which we have already made reference. 21. In that case money which had been paid under a decree was held to be recoverable in a later suit on the ground that the decree under which the money was originally recovered had been superseded by a subsequent order of Her Majesty in Council in an appeal arising out of a different suit. The facts of this case are important and we feel it necessary to state them in some detail. In the year 1821 Doorga Purshad, claiming to be heir to his deceased uncle, brought a suit against Shama Purshad Nundy, a debtor to his uncle's estate, for ₹ 23,024 being principal and interest due upon a bond. Pending the decision of this suit Tara Purshad Roy Chowdhury sued Doorga Purshad for one-half of the uncle's property and in 1829 a compromise was effected in this suit under which Tara Purshad became entitled to a six anna share of the debt due from Shama Purshad to the uncle's estate. Subsequently to this Doorga Purshad obtained a decree against Shama Purshad for the principal and interest due upon the bond. From this decree Shama Purshad appealed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -anna share of the bond debt, for which in his previous proceedings he had reserved his right to sue and in this action he obtained a decree for ₹ 4,593-12 9 with interest at 12 per cent, amounting to ₹ 11,127-15-3. This sum was eventually paid by Doorga Purshad to Tara Purshad in two instalments. Several attempts were made by Doorga Purshad to have this last decree for interest reviewed but upon the failure of these attempts he eventually brought a suit against Tara Purshad to recover back the said sum of ₹ 11,127-15-3 which be had been compelled to pay. The Court in India dismissed the claim but eventually upon appeal to Her Majesty in Council Doorga Purshad's claim to return of the money was successful. Their Lordships held that the order of the Privy Council passed in J u]y 1849, superseded the decree for ₹ 11,127-15-3 which Tara Purshad had obtained against Doorga Purshad in respect of interest in the suit instituted in 1842. In this case it was undoubtedly held that a decree was superseded by a subsequent order of Her Majesty in Council in an appeal arising out of another suit. The terms of the order which was held to supersede the earlier decree w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d rent against the plaintiff. No application was made by him for review of those judgments, but in 1875 he brought this suit to recover the difference between the amount of enhanced rent recovered and the fixed rent which he was bound to pay. It was held, Garth, C.J., and Jaqkson, J. dissenting, that the decrees for enhanced rent were superseded and that the plaintiff was entitled to recover the sums which he had paid. 24. Garth, C.J., in a dissenting judgment with which Jackson, J., concurred was of opinion that the plaintiff could not recover the sums which he had been compelled to pay by way of enhanced rent under the earlier decrees. In his judgment he dealt at length with the case in Shama Purshad Roy Chowdhury v. Eurro Purshad Roy Chowdhury 10 MIA 203 : 3 WRPC 25, and was of opinion that the principle laid down in that case could not be extended and applied to the facts of the particular case which he was then considering. He laid great stress upon the form of the order of Her Majesty in Council in Shama Purshad Roy Chowdhury v. Hurro Purshad Roy Chowdhury 10 MIA 203 : 3 WRPC 25, and observed that in the case which he was considering the order which it was said superseded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptance by them of pattas 1314 and 1315 F, fixing the rents on the produce sharing system The tenants pleaded that the rents had been commuted in previous settlement on a cash basis, that the arrangement was a permanent one and that the zamindar was not entitled to impose on the tenants pattas on differ-tent terms. The suit was dismissed by the Collector and his decree was affirmed by the District Judge. On second appeal the High Court decreed the suit. On appeal to the Privy Council it was held that the decree of the District Judge was based on findings of fact which could not be interfered with in second appeal and the decree of the District Judge was restored. Pending the appeal in the Privy Council the zamindar instituted suits for recovery of rents on the basis of the pattas and those suits were decreed, and no application was made for the stay of the trial of any of those suits pending the appeal to the Privy Council. After the decision of the Privy Council the tenants instituted suits to recover the amounts paid by them under the decrees in the subsequent suits. It was held that those decrees could not be deemed to have been uperseded by the decision of the Privy council in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30) PC 11 , on June 17, 1929. It is true that in the judgment their Lordships observe that the plaint also alleged that after the deaths of Abdul Latif and Abdul Shakur, defendant No. 1, in September 1915, instituted suits for arrears of rent against tenants of the properties and in May 1916, instituted a suit for profits which jeopardised the plaintiff's right and made it necessary to institute the present suit. However, no reference is made to the fact that the suit for profits therein referred to ever terminated in a decree against one of the appellants then before the Privy Council. Neither is there any reference to any subsequent suits for profits or the results of such suits. The last paragraph of the judgment of their Lordships of June 17, 1929, makes it clear in our view that their Lordships did not intend their order to affect anything but the rights of the parties then under consideration. The judgment concludes in these words: In these circumstances the appeal must be allowed and the decrees of the lower Courts varied by giving the plaintiffs decree for the properties covered by the auction-purohases and not included in the wakf, but in the circumstances their Lor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff ever obtaining a stay of the proceedings, but, be that as it may, we are bound to hold that as the decrees under which the moneys were obtained by Ubaid Ullah Khan have not been superseded, the plaintiff cannot sue in this suit to recover the same. That being so, the decision of the learned Civil Judge cannot be sustained and must be set aside. Holding, as we do, that the plaintiff in this case had no cause of action, it is sufficient to dispose of this appeal. However as the matter may be taken further we think it only right that we should give our views upon other matters which were argued before us. 30. As we have observed previously the plaintiff in this suit only gave the defendant credit for the profits of 1-3rd of the share of Abdul Latif Khan in this village which he had made wakf. The plaintiff contended that it had been finally decided between the parties by the judgment of his Court of April 21, 1922, that the wakf was only valid as to 1-3rd on the ground that the doctrine of marzulmaut applied. On the other hand, the defendant-respondent contended that even if the plaintiff had a cause of action in this suit he was bound to give the defendant credit for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncil against the dismissal of their suit in appeal by this Court. The decree of this Court which held that the wakf was only valid as to 1/3rd was never appealed against and became final between the parties, but unfortunately on June 17, 1929, their Lordships of the Privy Council delivered judgment in appeal against the decree of this Court dated January 15, 1921. By their order their Lordships upheld the validity of the wakf and declined to give the plaintiffs possession of the wakf properties as against the defendant Ubaid-Ullah Khan who claimed to be mutwalli thereof. 32. It has been argued on behalf of the plaintiff Abdul Jalil Khan that the matter was finally determined by this Court in its judgment of April 21, 1922, in the appeal in Suit No. 44 of 1917. By the decree of this Court the wakf was held to be valid only with respect to a third. On the other hand, it is argued on behalf of the defendant Ubaid-Ullah Khan that the last. order upon the matter is the order of His Majesty in Council of June 17, 1929, which declares the wakf to be valid in its entirety. That being so, the defendant alleges that the latter decision of the superior Court must prevail and that it must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and approved of his reasons for holding that the suit was barred as regards the properties covered by the auction-purchases. They held, however, that he was wrong in giving the plaintiffs a decree in respect of properties which were included in the wakf created by Abdul Latif, as the gift of those properties to the wakf had been duly perfected by Abdul Latif in accordance with the requirement of Muhammadan Law, and as after his death, defendant No. 1 had been duly appointed mutwalli of the wakf. They therefore dismissed the plaintiff's appeal and allowed defendant No. 1's cross-objections as to the wakf properties. 34. In the concluding portion of their judgment their Lordships observe: It has been found by both Courts that the gift to the wakf was duly perfected according to rules of Muhammadan Law and by the High Court, that defendant No. 1 was duly appointed mutwalli or trustee of the wakf after the founder's death and the plaintiff's claim to the wakf properties has therefore been rightly disallowed. 35. In those circumstances their Lordships of the Privy Council dismissed the plaintiffs' claim with regard to the wakf properties. In our judgment the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dispute between the parties to a suit or their predecessors in-interest, the latest of those decisions would override the earlier decisions and operate as res judicata. This case was followed in Dambar Singh v. Munawar Ali Khan 31 A 531 : 30 Ind. Cas. 775 : 13 ALJ 764, and was again followed in a recent case in Amar Singh v. Gobind Ram AIR1927All717 . In this latter case it was held that in a case where two decrees operate as res judicata, one as against the plaintiff and the other as against the defendant the later decree must prevail over the former because it shuts out consideration of the former. In our judgment we are bound to follow these cases and to hold that the order of His Majesty in Council being not only the later in point of time, but also the order of a superior Court must prevail over that of the High Court. 37. It is contended, however, on behalf of the plaintiff-respondent that even if the order of His Majesty in Council is to prevail over the earlier decree of the High Court, there is a decree of a competent Court later than the order of the Privy Council which now finally determines the question in favour of the plaintiff. That decree is a decree of an Assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has consistently held that a decision of a former suit in a Revenue Court may and frequently does operate as a bar to a subsequent decision upon the same issue in a Civil Court. The matter, however, does not rest there because it is contended on behalf of the defendant-appellant Ubaid-Ullah Khan that the decision of the Revenue Court dated March 12, 1930, was a nullity by reason of the fact that the learned Assistant Collector had no jurisdiction whatsoever to deal with the question of title. Those proceedings in 1930 claiming profits were brought under the Agra Tenancy Act, 1926, which differed very materially from the earlier Tenancy Acts. Under the present Tenancy Act of 1926 a suit for profits is brought in the Revenue Court under the provisions of Sections 227 and 230. However the jurisdiction of the Revenue Court when a party raises a plea of proprietary right is govered by Section 271. It is provided in that Section that if in any suit under Chap. XLI, the defendant pleads that the plaintiff has not got the proprietary right entitling him to institute the suit and such question of proprietary right has not been already determined by a Court of competent jurisdiction, the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proprietary right had already been determined by a Court of competent jurisdiction. Here there was a real dispute between the parties and the plea of proprietary right was not one raised merely to oust the jurisdiction of the Court. In our view the Agra Tenancy Act, 1926, Section 271, read with Expl. (1), clearly contemplated that where there is a real and bona fide dispute between the parties upon the question of proprietary right and question must be submitted to a competent Civil Court for decision and should not be decided by the Revenue Court. The Revenue Court is only empowered to deal with the whole suit where it is clear that the question of proprietary right has already been determined by a competent Court. Where there is a real doubt about the matter, as there was in this case, where there are apparently conflicting decrees and orders, then the Revenue Court must send an issue upon the question of proprietary right to the Civil Court for a decision. If the Revenue Court decides a question of proprietary right when it should not have done so, then its decree is a decree passed in a case where it has acted without jurisdiction. That being so, the decree can be regarded as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty of Abdul Latif Khan in this village which, in our view, has been held by His Majesty in Council to have been validly dedicated by Abdul Latif Khan. 41. The defendant-appellant also contended that even if the plaintiff had a cause of action in Suit No. 44 of 1917, his claim was barred by limitation. Counsel for the defendant-appellant argued that the suit was for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use and that being so, the period of limitation of three years began to run from the dates upon which the moneys were received by reason of Article 62, Limitation Act. Admittedly, in this case all the moneys sought to be recovered were received by the defendant-appellant more than three years before the suit was instituted. This view of the law is supported by the case in Raja Nilmoney Singh Deo Bahadur v. Sharoda Pershad Mukerjee 18 WR 434. In that case it was held that money paid under a decree obtained in the Revenue Court which was subsequently held to have been superseded and modified by a decree of the Civil Court could be recovered but that the cause of action accrued not on the date when the decree of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-holder's case that the question of the extent of the validity of the wakf was finally determined by this Court by its decree of April 21, 1922, and that being so he was entitled to possession of 2-3rds of the property which had been made wakf by Abdul Latif Khan. Ubaid-Ullah Khan filed an objection in these execution proceedings' and claimed that His Majesty in Council by their order of June 17, 1929, had finally determined that the wakf was valid with regard to the whole or the wakf property and that being so, the decree-holder was not entitled to possession of any of the property of Abdul Latif Khan which was made wakf by him. This objection is the subject-matter of Execution First Appeal No. 279 of 1934. The Civil Judge disallowed the objection of Ubaid-Ullah Khan holding that the effect of various decisions was that the plaintiffs were held to be entitled to possession of 2-3rds of the property of Abdul Latif Khan which was made wakf by him. Whilst dealing with First Appeal No, 140 of 1934 we have considered this question. For the reasons which we have previously given we are satisfied that the order of His Majesty in Council dated June 17, 1929, entitles Ubaid-Ullah ..... X X X X Extracts X X X X X X X X Extracts X X X X
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