Chennai Court November 1909 Judgments
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Vattakulakaran Sowdaker Abu Backer Sahib and anr. Vs. the Secretary of ...
Court: Chennai
Decided on: Nov-25-1909
Reported in: (1910)20MLJ283
Arnold White, Kt., C.J.1. I am of opinion that the provision in Section 12 of the Limitation Act, 1877, that in computing the period of limitation prescribed for an appeal the time requisite for obtaining a copy of the order appealed against should be excluded, does not apply to appeals under Section 10 of the Madras Forest Act 1882.2. I think this opinion might reasonably be based on the short ground that Section 10 of the Forest Act which gives a right of appeal from the Forest Settlement Officer to the District Court, in the case of certain claims to a right in or over land within 30 days from the date of the order appealed against, empowers the Governor-in-Council to extend time for appeal. The application of the provision of Section 12 of the Limitation Act with reference to the exclusion of time in computing the period of limitation prescribed for an appeal, as it seems to me, necessarily operates as an extension of the prescribed period of limitation. Section 10 of the Forest Ac...
Valliammai (Deceased) and ors. Vs. Raju Shanmugam Pillai
Court: Chennai
Decided on: Nov-25-1909
Reported in: (1910)21MLJ466
Sankaran Nair, J.1. I an unable to agree with the judge that when a suit is found to be barred by limitation, it is open to him to allow the plaintiff to withdraw the suit with liberty to bring a fresh suit, if the fresh suit is one which would be barred by the decision in the earlier suit. But I think it is unnecessary to proceed on that ground. In fact that question does not arise. This is an application presented by the decree-holder who seeks to turn out of possession the respondent who claims to be in possession. It is registered as a suit and the judge holds that the suit is barred by the provision of the Civil Procedure Code that the application must be presented within a month of the obstruction complained of. In my opinion the judge is wrong. The application can be entertained and be registered as a suit only if it is presented within one month. As it was not presented within one month, it should not have been registered as a suit. It is manifestly unfair to the applicant-decr...
Vattakulakaran Sowdaker Abu Backer Sahib, Vs. the Secretary of State f ...
Court: Chennai
Decided on: Nov-25-1909
Reported in: (1911)ILR34Mad505
Arnold White, C.J.1. I am of opinion that the provision in Section 12 of the Limitation Act, 1877, that in computing the period of limitation prescribed for an appeal the time requisite for obtaining a copy of the order appealed against should be excluded, does not apply to appeals under Section 10 of the Madras Forest Act, 1882.2. I think this opinion might reasonably be based on the short ground that Section 10 of the Forest Act, which gives a right of appeal from the forest Settlement Officer to the District Court, in the case of certain claims to a right in or over land within 30 days from the date of the order appealed against, empowers the Governor in Council to extend the time for appeal. The application of the provision of Section 12 of the Limitation Act with reference) to the exclusion of time in computing the period of limitation prescribed for an appeal, as it seams to me, necessarily operates as an extension of the prescribed period of limitation. Section 10 of the Farest ...
Thamballa Veeramma and ors. Vs. Thamballa Palur Subbamma and ors.
Court: Chennai
Decided on: Nov-25-1909
Reported in: 5Ind.Cas.119
1. We are constrained to hold that the District Judge was right.2. The plaintiff asks for a declaration that certain lands to which he alleged he was entitled are in possession of defendants Nos. 1 and 2 on account of a clerical or an arithmetical error or by mistake. The error or mistake is alleged to be a mistake in the decree of the Court of first instance in a former suit in which the lands in question were in dispute and in which a decree was passed by the Court of first instance which, for the purpose of the point we have to decree, we assume to have been not in accordance with the judgment of the Court.3. The question as to the alleged error or mistake was raised for decision before the High Court on an application by way of revision to set aside an order of the District Judge to bring the decree-into conformity with the judgment, and it was held by this Court that there the case did not come within Section 206 of the Code of 1882, that is to say, it was held that there was no d...
Meera Mohideen Rowthan Vs. Dubash Kadur and ors.
Court: Chennai
Decided on: Nov-25-1909
Reported in: 6Ind.Cas.286
1. The defendant's plea was special permission of the landlord in the case of each ryot to build. This has been found against. He is not entitled to ask us to hold that the plot has been converted from nangal into a building site by the fact that it has not been cultivated as nangal for 30 years. He has received pattah and paid rent on the basis that the land was nangal.2. The injunction has been granted. The defendant had notice not to build. There has been no laches on the plaintiff's part. The fact that other tenants have built is no ground for lefusing the injunction. The second appeal is dismissed with costs....
iswara Gowd Vs. Komati Siddayya
Court: Chennai
Decided on: Nov-25-1909
Reported in: 6Ind.Cas.285
1. The plaintiff does not allege in his plaint that the path over the defendant's land is a public right of way, but only that he as a resident villager of Rajapuram and the other villagers of Rajapuram have a right of way over the path. The objections, therefore, to the suit urged by the appellant on the strength of the decisions in Adamson v. Arumugam 9 M.K 463 and Siddeswara v. Krishna 14 M.K 177, have no application. Though the word 'easement' is not used in the plaint, the allegations in it show that the right is claimed as an easement which the plaintiff as a resident of the village has to use the path. In this view we think that the suit is maintainable by the plaintiff on his own behalf and that it was open to the District Judge to allow the amendment of the plaint so as to limit the plaintiff's claim to the easement which he alleges that he has.2. We, therefore, dismiss the appeal with costs....
Arapayil Pattuthi Umma Vs. Thacharkavil Ummi Koya
Court: Chennai
Decided on: Nov-24-1909
Reported in: 5Ind.Cas.56
Sankaran Nair, J.1. The Judge is wrong in holding that the plaintiff could not have executed the decree in his favour which was attached by the defendant. See Patumma v. Idiri Beari 13 M.L.J. 265, Sami Pillai v. Krishnasami Chetti 21 M.k 417 and Adhar Chandra Dass v. Lal Mohun Das 1 C.W.N. 676.2. For the loss sustained by the plaintiff, by the execution of his decree being barred by limitation, the plaintiff is responsible. The decree of the lower Court is reversed and the suit dismissed with costs throughout....
Sri Krishnaswami Iyengar Vs. Rangasawmy Iyengar and ors.
Court: Chennai
Decided on: Nov-24-1909
Reported in: 5Ind.Cas.76
1. We think the right claimed to stop the idol in front of the plaintiff's house is not part of the right of worship by a member of the community for whose benefit the temple has been dedicated. There is no right to obstruct the highway for an indefinite time and the plaintiffs' claim is based upon such a right on the part of the idol. For these reasons we think the Courts below were right in holding that as regards this alleged right, the suit was not of a nature of which a Civil Court can take cognisance. The claim as regards honors referred to in paragraph (a) of the prayer is not pressed by the appellant.2. As regards the alleged right to make offerings at the Krishna Coil, the plaint merely alleges an immemorial custom (paragraph 5) but does not aver that the plaintiff has acquired any right thereunder. Paragraph 9 refers to the infringement of the supposed right. Paragraph 11 is confined to the right to make offerings in the street. Issue No. 3 specifically raises the question of...
Ylazorath Kibulav Syed Ghulam Ghouse Shal Sahib Kadiri Vs. Sunni Lal A ...
Court: Chennai
Decided on: Nov-24-1909
Reported in: 5Ind.Cas.155
1. We think that the order of the District Judge is right.2. The District Judge says that the order sending the decree to the District Munsif, though signed by the sheristadar 'by order,' is the endorsement of the Court, that is, the act of the Court and Civil Procedure Code, Sections, 223 and 225, were, therefore, complied with.3. As to the other objection taken, viz., that the execution was in respect of Rs. 2,970-8-9, a sum in excess of the pecuniary jurisdiction of a District Munsif in regard to suits, it has been decided by this Court in Narasayya v. Venkata Krishnaya 7 M.k 397 and Shanmuga Pillai v. Ramanathan Chetty 17 M.k 309, that the jurisdiction of a District Munsif in regard to the execution of a decree transferred to him for execution is not subject to any pecuniary limit. No doubt a different view is taken in Gokul Kristo Chundar v. Aukil Chunder Chatterjee 16 C.k 457. Durga Charan Majumdar v. Umatara Gupta 16 C.k 465 and Sidheshwar Pandit v. Harihar Pandit 12 B.k 155, bu...
Appasami Iyengar Vs. Sundaram Iyengar and anr.
Court: Chennai
Decided on: Nov-24-1909
Reported in: 6Ind.Cas.286a
1. We think the appeal must be dismissed with costs.2. The contention in this appeal is that the question as to whether the assignment ought to be recognized or not was previously determined by the High Court against the assignee and was, therefore, res judicata. But we do not think that it is open to the appellant to raise this question. The order made on the 20th November 1907 was passed after notice duly served on the present appellant but he did not choose to appear in that proceeding where he could have taken the objection he now takes before us. The appellant's Vakily however, urges that as a matter of fact no notice was served on him of the application on which the order of 20th November was passed and it was, therefore, open to him now to raise the question of res judicata. It appears that he applied under Section 108, Civil Procedure Code, to have the ex parte order set aside. That application was refused on the 23rd March 1908 bat no appeal has been preferred against that ord...
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