SHAH -AHID HUSSAIN Vs. MAHOMED ISMAIL

JUDGEMENT

(1.) In this case, on 23 July 1923, as the result of an ex parte application by the appellants, their Lordships humbly advised His Majesty that special leave should be granted to the applicants to appeal to His Majesty in Council against a decree which had been made against them by the High Court of Judicature at Allahabad on 22 February, 1916. The leave was so advised upon special terms as to the costs of the respondents, who are a very large body of holders of small properties in the abadi of the zamindari belonging to the appellants. The application was made by the appellants upon the ground that the decree against which they desired to appeal not only directly affected the properties claimed by the respondents, which did not themselves exceed in aggregate value the sum of Rs. 5,100, but that it indirectly affected the title of the appellants to other properties in the abadi, the aggregate value of which was far in excess of Rs. 10,000. An application for leave to appeal had on similar grounds been unsuccessfully made by the appellants to the High Court but their Lordships make no reflection adverse to the appellants upon the terms in which their further application for special leave to appeal was made to the Board.

(2.) The respondents, however, have, in their printed case, stated as their first reason for affirming the decree that special leave to appeal should not have been granted because, as they say there is no proof that the order appealed against indirectly affected the appellants' title to any property at all. As the result of the full investigation into all the facts and circumstances of an extremely complicated case which, with the assistance of counsel, their Lordship have now been able to make, they are quite satisfied that no plots of land in the abadi of the appellant's zamindari other than those claimed by the respondents are in fact affected by the decision appealed against. Indeed there is, in the judgment of the learned Subordinate Judge of Saharanpur, whose decree in their favour of 27 September 1913, the appellants seek to have restored by this appeal, a statement which proves that the other plots in the abadi to which the appellants have referred, stand, with regard to the zamindars, in a position quite different from those of the respondents.

(3.) In these circumstances this objection taken to the competence of the appeal, now that it is shown to be well founded, becomes of compelling importance. The respondents, a veritable crowd of people of slender means, have had their titles to their properties upheld by the decree of their own High Court. Only in the most exceptional circumstances would it be right to require them further to defend their title before the Board. No provision for their costs, however adequate, can be their sufficient protection against the risk involved.