Removal of Manager. See ENDOWMENT 112 | Res Judicata-continued.

2

Plaintiff then brought a subsequent
140 possession.
suit for possession against the same parties, and
on the same cause of action. The defendants
objected that the suit was barred under sections
2 and 7, Act VIII of 1859, but the contention
was overruled. DEODHARI SINGH VS. LALA SEW-
SARUN LAL

Decree, Effect of. See LANDLORD AND

TENANT

of Houses. See JURISDICTION
Liability for. See LANDLORD

119

8

2

...

Probable resistance to lawful Col-
lection of. See SECURITY TO KEEP THE

PEACE

280

395

Custom-Family Custom-Koo-
AND lachar-Impartible property-Mitakshara Law.]
285 A, claiming as heiress of her deceased son,
sion of a certain talook, and obtained a decree.
brought a suit against B and others, for posses-
In that suit B claimed the talook as the heir of
A's son, according to the Mitakshara law, and
alleged that after the death of A's son he, B,
had been installed as gudinashin according to
ancient usage. Subsequently, B filed a suit,
claiming possession of the talook from A on the
ground that by a koolachar, or family custom, he
was entitled to succeed as heir to A's son. Held,
that the second suit was barred as res judicata.
TAVER vs. RAJAH OF SHIVAGUNGA, 11 Moore's
Ind. App., 73; KRISHNA BEHARI ROY VS. BRO-
JESWAREE CHOWDHRANEE, L. R., 2 Ind. App.,
283; SOORJOMONEY DAYER VS. SUDDANUND
MOHAPATTUR, 12 B. L. R., 304, cited and fol-
lowed; CHINIYA MUDALI VS. VANKATACHELLA
PILLAR 3 Mad. H. C. R., 320; and SHAIKH
RAMATULLAH VS. SHAIKH SARINTULLAH, 1 B. L.
R., F. B., 68, overruled. TEKAIT DOORGA PER-
SHAD VS. TEKAITNI DOORGA KOONWARI

Suit-Costs-Charge on Lands.] A de-
cree for costs incurred in a rent suit is no charge
upon a talook in respect of which the suit was
instituted, A subsequent purchaser of a share of
such talook does not become liable as such for
any portion of the costs due under such decree.
ROMA PROSUNNO SINGHEE vs. BOYKANTO NATH
GHOBAL
504
Arrears of Rent-Purchaser's Lia-
bility-Sale of Tenure.] The purchaser of an
under-tenure, the rent of which is in arrear, can-
not be made personally liable for that portion of
the rent which accrued due before the date of
his purchase. SHAMA CHUND KOONDOO vs. BROJO
NATH PAL, 21 W. R., 94, considered and ex-
plained. RASH BEHARY BANERJEE ve. PEARY
MOHUN MOOKERJEE
116
Re-opening Foreclosure Proceedings. See
MORTGAGE

-Hindu Widow-Deed of Gift
-Parties to Suit-Cause of Action.] In 1862,
plaintiff brought a suit against a Hindu widow
and other defendants, in which he stated that
certain properties, X, Y and Z, belonging to him,
had been given to the widow for her life for
maintenance; and that she had alienated X and
Y to the other defendants. The plaintiff prayed
that the deed of gift might be delivered up to be
cancelled; that possession of X might be given to
him; and that any alienation of Y might be
restrained. No further mention was made of
Z; no relief was asked respecting it, nor any
assertion made that the widow had improperly
dealt with it, or that the defendants were in any
Way connected with it, and the suit was dismissed
as regards Z. After the widow's death, plaintiff
again sued for possession of Z, parties who claim-
ed under the defendants in the previous suit
against the widow. Held, reversing the decision
of the High Court of Judicature at Madras, that
the second suit was not barred as on a cause of
action, which was res adjudicata. RAMA Rao

IN EXECUTION OF DECREE
Res Judicata See ACCOUNT, SUIT FOR
Cause of Action-Mortgage
money, Suit for-Possession, Suit for-Act VIII
of 1859, section 2-Act VIII of 1859, section 7.]
The first defendant mortgaged certain lands to
plaintiff by way of zuripeshgi lease, under which
the latter entered into possession. The first de-
fendant afterwards gave a ticca of the lands to
the second defendant, who turned the plaintiff
out of possession before the term of the zuri-FS, SURIYA RAO
peshgi lease had expired. Plaintiff then sued the 4.
Lands taken for public purposes
first and second defendants, basing his cause of Award of compensation-Regular suit-Act X
action on the dispossession by the second defen of 1870, sections 37, 38, 39, 40, 58.] When land
dant, and praying for the recovery of the mort has been taken up by the Government for public
gage money by a sale of the mortgaged property. purposes, and a reference is made to the Civil
The suit was dismissed, the Judge observing that Court by the Collector for an order as to the ap-
plaintiff's proper remedy was to bring a suit for portionment of the compensation money amongst
Vol. III.

Res Judicata-continued.
adverse claimants, the award of the Judge is, un-
less appealed from, final and binding on the par-
ties in whose presence it was passed; and a
subsequent suit by one of the parties to the com-
pensation case for a declaration of his title to the
lands, and for an order directing the payment
of the compensation money to him, will be bar-
red as res judicata. Sections 37, 38, 39, 40, 58,
of Act X of 1870, discussed. DWARKA SINGH
VS. SOLANO, 22 W R., 38, dissented from; KA
MINEE DABEE VS. PROTAP CHUNDER SANDYAL,
25 W. R., 103, distinguished. RAJA NILMONEY
SINGH VS. RAM BUNDHU ROY
211

5
Question raised, but not decided
in previous suit-Title-Leave to bring a fresh
suit.] In a suit between A and B a question of
title was raised and decided in B's favour in the
Court of First Instance, but on appeal the Judge
refused to go into it, saying that B might bring
a fresh suit. Held, that a subsequent suit by B,
raising the same question, was not barred as res
judicata. WATSON VS. THE COLLECTOR OF RAJ-
SHAHYE, 12 W. R., 43, P. C., cited and distin-
guished. EMAMOODDEEN SOWDAGHUR V8.
SHAIKH FUTTEH ALI

6-

SALE

See

...

447

of Criminal Procedure, sections 220, 216–
Re-trial-Acquittal-Failure of Justice-Code
Charge-Preparing a charge.] A man accused of
theft was acquitted by the Deputy Magistrate
under section 220 of the Code of Criminal Proce-
dure. The District Magistrate, at the instance
of the Police, ordered the case to be re-tried. It
appeared that the Deputy Magistrate had not
framed any charge, but that no failure of justice
had been occasioned by his not doing so. Held,
that the Magistrate had no power to order a re-
trial, without first setting aside the order of
acquittal; and that he had no power to set aside
the order of acquittal as the case had not been
appealed to him." JOJA PASHAN, IN THE MATTER

OF

131

Revenue Auction Sale-Arrears of Reve-
REVENUE AUCTION nue-Sale-Purchaser-Auction purchaser-
151 Cause of Action-Limitation-Res Judicata.]
-Suit for Possession-Setting aside Where, at an auction sale for arrears of revenue,
Sale-Irregularity-Void Sale.] When a plain-
a person purchases a permanently-settled zemin-
tiff sues for possession and determination of right dary, his cause of action, for possession of lands
to a certain property, and to set aside an execu-
which he alleges to have formed a part of his
tion sale of a portion of the property on the permanently-settled zemindary, and for which he
ground of irregularity, and his suit is dismissed still pays Government revenue, will be held to
on the merits, a subsequent suit for possession have arisen at the date of his purchase. Such ■
of the property sold, on the ground that the purchaser is not barred by adverse possession
sale was void ab initio, will be barred as res judi- which has barred the former (defaulting) pro-
cata. WOOMA TARA DEBIA VS. UNNOPOORNA prietor, nor by decrees in suits for possession
brought by the former (defaulting) proprietor,
DASSEE, 11 B. L. R., 158; and TAVER vs.
KATAMA NATCHIAB, 11 Moore's Ind. App., 50, in respect of the same lands, and against the
same parties. DEWAN RAMJIWAN SINGH ▼B.
THE COLLECTOR OF SHAHABAD, 18 W. R., p.
64; THE COLLECTOR CF MOORSHEDABAD T8.
ROY DHUNPUT SINGH BAHADOOR, 23 W. E.
38, cited. NARAIN CHUNDER CHOWDHRY VB.
TAYLOR

cited and followed. TоHMAS M. PIGOU vs. SYED
MAHOMED ABOO SYED
253

...

7.
-Unsuccessful suit for Damages
for Trespass followed by suit to establish Title
to Lands-Act VIII of 1859, section 2.] A,
alleging himself the owner of a certain garden,
brought a suit for damages against B and C for
forcibly carrying off fruit grown in such garden.
In this suit the question, whether A was exclu-
sively in possession of the garden, was incident-
ally raised and decided against A. Thereupon A,
who in the meantime had been ousted from pos-
session, brought a subsequent suit in which B
and C, together with others were co-defendants,
in which he claimed an undivided share in the
same garden. Held, that under the circumstances,
the doctrine of res-judicata did not apply, and
that such suit was maintainable. DOORGA RAM
PAUL V8. KALLY KRISTO PAUL

549

Revenue Courts. See JURISDICTION
Revenue Sale. See Co-PARTNER
Reversed Decree. See RESTITUTION 358
Reversioner. See GIFT BY HINDU WIDOW 384
Reversionary Heirs, Right of. See

HINDU WIDOW, DECREE AGAINST
Revival of Proceedings. Seo

530

INTER-

of Proceedings in Execu-

Restitution-Refund of Costs-Costs paid Right of Appeal. See APPEAL.....
under Decrees which are reversed—Motion.] | Right of Occupancy. See IJARA

8 Stamp Act XVIII of 1869, Sch. II, section
5-Entry in Hathchitta-Acknowledgment of
Debt.] Although the intention of the parties in
requiring the signature or seal of the borrower
to the entries in the hathchitta of each sum
borrowed is to secure an acknowledgment that
the sums have been advanced, such entries,
where they are not detached from the account
of which they form part, are not such notes or
memoranda written in a book as required to be
stamped under Sch. II, section 5 of the Stamp
Act, XVIII of 1869 (Cf. Act I of 1879, Sch.
I, No. 1.) BROJENDER COOMAR ROY CHOW-
DHRY vs. SREEMUTTY BROMMOMOYEE CHOW-
520

were

JECT

See COMMON OB-

49

Unnatural Death. See JUDICIAL PROCEED-

ING

Under-Tenure. See ESTOPPEL

59

239

A

Summons to witnesses, Issuing of-Time of | Unlawful Assembly.
issuing Summons-Act VIII of 1859, sec. 149-
Act of 1877, sec. 150.] The 20th
of March
1877 having been fixed for the final hearing of
a suit, the plaintiff, on the 17th of March, and
the defendant on the 19th, filed their list of
Both lists
witnesses to be summoned.
merely ordered to be put up with the record.
When the suit came on for hearing it was dis-
missed on the ground that, when the plaintiff
filed his list there was not sufficient time left to
summon the witnesses. Held that the Judge was
not justified in dismissing the suit on this ground,
unless he found that it would have been abso-
lutely impossible to secure the attendance of the
witnesses had the summonses been granted on
the 17th instant. Section 149 of Act VIII of
1859, and section 159 of Act X of 1877, dis-guished. REDOY KISSEN DUTT vs. RAM COOMAR
cussed. RAJENDRO NARAIN NEOGI VS. RAJAH SEN
KUMUD NABAIN BHUP

Talub. See PRE-EMPTION

...

Sale of-Sale in Execution of
Decree-Arrears of Rent-Enhancement.]
sale in execution of a decree for arrears of rent
(at an enhanced rute) of a subordinate talook,
which has been obtained against a party who is
in possession of the talook by permission of the
owners, but who has no other right or title to it,
will not bind those owners, even though their
names be not recorded as tenants in the books of
the zemindar. SHAMCHAND KUNDU vs. BROJO-
NATH PAL CHOWDHRY, 12 B. L. R, 484, distin-

Vakalutnamah-Power to receive Documents
-Power-of-Attorney-General and Special power
-Court Fees' Act-Act XVIII of 1869, Sch.
375 2] If a pleader is authorized by the vakalut-
namah under which he acts to receive moneys
or documents for his client in the course of the
cause which he is empowered to conduct, or as a
consequence of the decree or any order of the
Court in such cause, a Court of Justice might
legally and with propriety direct a public officer
to pay money or make over valuable documents
to the pleader, provided that such money or
documents have become receivable by the client
in the ordinary course of the suit, or in conse-
quence of the order or decree. A general or
special power-of-attorney to enable the pleader
to receive such money or documents is not
Act XVIII of
necessary In the matter of
1869

569

Tender. See JURISDICTION
See IJARA
Term of Years.
Theft. See INDIAN PENAL CODE, SECTION
525
108
Tipperah, Rajah of. See JURISDICTION 417
Time of issuing Summons. See SUMMONS
TO WITNESSES
Title-Adverse Possession-Limitation.] Where
a plaintiff claims to be the owner of certain laud,
by virtue of a particular title, coupled with
possession, adverse to the defendant for twelve
years, he is entitled to succeed upon proof of
Buch possession, although he fails to prove the
RAM DHUN CHUCKERBUTTY
particular title.
TS. SREEMUTTY KOMUL TARA, 11 W. R., 301,
commented upon. CHOWDHRY GOLUCK CHUNDER
450
MASUNTA VS. NUNDO COOMAR ROY
Title. See RES JUDICATA

Void Bequest-Hindu Law-Devise to a class
Possession-Limitation-Act IX of
-Adverse
1871, Sch. II, cls. 122 and 145.] A devise to a
class, some of whom are unborn at the death of
the testator, is invalid in Hindu law. By his
will, after giving several legacies, A devised the
rest and residue of his estate "to the son lately
born to B, and to the son or sons that may here-
after be born to him." Held, that the devise was
invalid under the Hindu law. LEAKE vs. ROBIN-
SON, 2 Mer., 363; and SOUDAMONEY Dossee vs.
JOGESH CHUNDer Dutt, I. L. R., 2 Cal., 262;
TAGORE VS. TAGORE, 9 B. L. R., 377, cited and
followed. Where a residuary bequest is made
by a Hindu testator to his executors in trust for
certain purposes which fail as being void, the
239 person entitled to the property on failure, i.e.,
509 the heir-at-law of the testator, may be barred
by limitation as regards the moveable property
by cl 122, sch. 11, Act IX of 1871, and by cl.
145, Sch. II, Act IX of 1871, as regards the
immoveable property. A trustee for a specific
purpose, within the meaning of section 10, Act

See

30

fol-

Title

Unsuccessful Suit for,
lowed by Suit to establish
to Lands. See RES JUDICATA 549
Trover. See CONTRACT ACT, SECTION 178 398