Kolkata Court March 1878 Judgments

Ubilack Rai and ors. Vs. Dallial Rai and ors.

Court: Kolkata

Reported in: (1878)ILR3Cal557

White, J.1. So far as the pottah bears the seal of Futtey Ali, we have no reason to find fault with the mode by which the Court below has arrived at the conclusion that the seal was the genuine seal of Futtey Ali; but inasmuch as besides Futtey Ali, there were two other maliks, who have not sealed or signed the pottah, the authority of Shyam Lall to sign for them should be proved; and such proof is a necessary preliminary to the admission of the document in evidence.2. The Judge states thus--'The issue which I have to try is the mokurrari pottah genuine; and if so, was it effectuated or not.' 'What the Judge says on this issue is this:--'The evidence adduced on behalf of the pottah is fully satisfactory. True that no direct evidence was given to establish its authenticity, but it is also true that no direct evidence was available. The pottah is more than forty years old. The writing of the lease was proved by the evidence given by Soonder Lall, the son of Shyam Lall, the writer of it. ...

The Empress on the Prosecution of Denonath Ghattack Vs. Rajcoomar Sing ...

Court: Kolkata

Reported in: (1878)ILR3Cal573

L.S. Jackson, J.1. It appears to me in the first instance that the Joint Magistrate was in error in making any order in this matter under Section 530 of the Code of Criminal Procedure. It seems to mo that the subject-matter was one to which that section could have no application. There was really no question of possession. The land was in the joint possession of the disputants, and the only question was, whether one of them being a joint owner was at liberty to make use of the land in such a manner as to cause what the other joint owner chose to consider an annoyance, and against the will of that joint owner. In fact, the Magistrate himself, in a passage of his judgment, scorns to furnish an excellent reason why he should not have exercised jurisdiction under that section. Adverting to an argument of the pleader for the accused, as to the right of Coopee Kisto Gossain to forbid this mode of enjoyment, he says: 'I am unable to accede to the application of this doctrine. The vakeel says ...

Deo NaraIn Singh and anr. Vs. Lal Sahoo

Court: Kolkata

Reported in: (1878)ILR3Cal781

Ainslie, J.1. On appeal the Subordinate Judge affirmed the finding that the holding is not protected from enhancement, and also held that no custom of transfer of occupancy rights without the consent of the landlord had been established. This last finding is irrelevant, as ejectment is not sought. He went on to hold that Nuro Panday had no right to build, and consequently could give no such right to his vendee. He assumes it to be an established rule that a lessee cannot build on land held by him for cultivation, and supports this view by a reference to the case of Juggut Chunder Roy Chowdhry v. Eshan Chunder Banerjee 24 W.R. 220. In that judgment the Court said: 'It may well be that, in particular places, ryots having rights of occupancy in land for agricultural purposes may, by custom, have the right to transfer it to any person to hold for the same purpose; but that will not carry with it the proposition that a person who may be desirous of erecting a large house in the midst of an ...

Jogender Nath Paul Vs. Ram Coomar Paul

Court: Kolkata

Reported in: (1879)ILR4Cal56

Markby, J.1. In this case the suit was brought for a partition. The plaintiff alleged that the common ancestor of the parties and his five sons acquired certain properties; that after his death his five sons separated among themselves taking certain land, amounting to 16 high as each, for their own private expenses; that the remaining lands they held in ijmali among themselves; that one of them became the manager, who made the collections of the rents, and from the profits thereof paid the expenses of the Rash, Dole, etc., festivals and the worship of the idols,--all of which are patrimonial; and that the balance of the money they divided among themselves.2. The substance of the defence, so far as we need advert to it now, is that the whole of the land under claim was the property of the idol.3. The Munsif, who went very fully into the matter, came to the conclusion that 94 bighas and 6 cottas of the land were dewutter property and were not partible; and as there is no complaint now in...

The Empress Vs. Kudrutoollah and ors.

Court: Kolkata

L.S. Jackson, J.1. 'Trial,' according to the definition in Section 4 of the Criminal Procedure Code, means 'the proceedings taken in Court after a charge has been drawn up.' It is clear, therefore, that Section 221 of the Criminal Procedure Code, which follows Section 220, authorises a Magistrate, although a charge may have been drawn up, to stop further proceedings and commit for trial: for this purpose Section 221 may be regarded as a proviso to Section 220. It may be added that, though the explanation to Section 220 provides that if a charge is drawn up, the prisoner must be either convicted or acquitted, it does not require that the conviction or acquittal should be by the Magistrate who drew it.2. We see no reason, therefore, to quash the commitment....

Ramkissen Doss Vs. Luckeynarain

Court: Kolkata

Reported in: (1878)ILR3Cal312

Pontifex, J.1. The mere filing of a, plaint, or the naked fact that a plaint is on the file, will not of itself prevent the operation of the law of limitation. A plaintiff is bound to conduct his suit with proper diligence, otherwise filing a plaint and abstaining from taking further proceedings, would have greater effect in keeping alive a demand than obtaining a decree. By the first of the rules of Court, the 4th of December 1875, which govern the practice of this side of the Court, it is directed that a plaint shall be taken off the file unless within fourteen days after the institution of the suit a summons to the defendant to appear and answer is taken out and delivered to the Sheriff. By the 8th rule of the 9th of February 1875, the times are stated for which the summons is usually made returnable. But in cases where a defendant keeps out of the way to avoid service, or cannot be found after a bond, fide endeavour has been made to serve him, it is the practice of the Court, upon ...

Suddurtonnessa and anr. Vs. Majada Khaton and anr.

Court: Kolkata

Reported in: (1878)ILR3Cal694

Markby, J.1. It is impossible to Kay that the Judgment of the lower Appellate Court in this case was erroneous in law, unless we go to the length of saying that a Judge is bound, as a matter of law, to apply to a Mahomedan family living jointly all the rules and presumptions which have been held by this Court to apply to a joint Hindu family. Now we are not prepared to go to that length. When a Mahomedan family adopts the customs of Hindus, it may do so subject to any modification of those customs which the members may consider desirable; and it must rest with the Judge who has to decide each particular case how far he should apply the rules of a Hindu joint family to the case of any Mahomedan joint family that comes before him.2. With regard to the case quoted Vellai Mira Ravuttan v. Mira Moidin Ravuttan 2 Mad. H.C. Rep. 414--we have no reason to doubt that it was a perfectly proper decision with reference to the facts then before the Court. The Court does not there say anything contr...

Gopee Mohun Mozoomdar Vs. Hills

Court: Kolkata

Reported in: (1878)ILR3Cal790

Markby, J.1. We think that there must be a remand in this case. There were two questions for consideration: one was whether there had been an uniform payment of rent for twenty years, and, if so, whether the presumption which the law directs to be drawn from an uniform payment of rent for twenty years had been rebutted by 'the plaintiff. The previous decision is not conclusive upon either of these two points. One of these questions was not and could not be gone into in the previous suit. It has nothing whatever to do with the former case whether the landlord received different rates of rent at some earlier period. No doubt the Court in that former case did express an opinion that, for twenty years, rent had been paid at an uniform rate; but even that was not a question in issue in the former suit, and in such a manner as to make the decision in the former suit conclusive upon that point. The District Judge will have to consider the case upon the evidence on the record, and determine wh...

Sardar Doyal Singh Vs. Shib Prokash Singh

Court: Kolkata

Reported in: (1878)ILR3Cal545

White, J.1. The result of the release of this portion was, that the description of the property which was advertised to be sold was no longer an accurate description.2. Now Section 249 of the Code, in prescribing what the proclamation is to contain, makes express mention of 'the property to be sold,' and there can be no doubt that that particular, is one of the greatest importance. In a case where, as here, a variation had arisen between the property advertised to be sold and the property actually sold, in consequence of the release obtained by Nursing Roy, it was necessary and proper that a fresh proclamation should have issued in order to comply with the requirement of the section to which I have referred. No such fresh proclamation, however, issued; but on the day of sale, those who had assembled for the purpose of bidding for the property were informed at the time and place of sale that a portion of the advertised property had been released, and that the sale would, therefore, only...

Sudder Ally and ors. Vs. Bhugwan Chunder Dass and anr.

Court: Kolkata

Reported in: (1879)ILR4Cal41

Richard Garth, C.J.1. We do not think it necessary to go into the question, which has been fully dealt with by the Court below, as to whether there was any bona fide service of notice at all in this case. Taking for granted that everything was done upon which the appellants' pleader relies, we consider that there was no sufficient publication of the notice according to law. The Reg. VIII of 1819, Section 8, provides that the notice which the law requires to be sent in to the mofussil, is to be published by being stuck up in some conspicuous part of the cutcherry, or at the principal town or village of the defaulting talukdar. Then follow some provisions to which it is only necessary for us to allude in order that we may the better explain what we believe to be the meaning of the authorities to which we have been referred during the argument. These provisions are to the effect that the notice thus required to be published is to be served by a single peon, who is to bring back the receip...