Kolkata Court May 1879 Judgments
Dwarkanath Mytee Vs. Junmajoy Mullick
Court: Kolkata
Decided on: May-30-1879
Reported in: (1880)ILR5Cal287
Mitter, J.1. This is a suit to recover possession of 31 bigas and 5 cottas of land as appertaining to Mouza Hijultola. A dispute arose between the plaintiff and defendant as to the boundary of their respective villages during the survey of 1873. The defendant, who is the owner of Mouza Kasiabheri, claimed the disputed land as appertaining to his mouza. The survey authorities decided that question in favor of the defendant, and the lands in suit were included in the survey map of Kasiabheri. The plaintiff has, therefore, brought this suit for the rectification of the survey map, and also for recovery of possession of the lands in dispute. The Courts below have decreed the claim of the plaintiff.2. One of the documents produced by the plaintiff in support of his claim, is a map of Hijultola, prepared by a Government officer when it was in the possession of Government as a khas mehal. The lower Courts have admitted this document as evidence in the case under Section 83 of the Evidence Act...
Tag this Judgment!BepIn Behari Singh Vs. the Government
Court: Kolkata
Decided on: May-29-1879
Reported in: (1880)ILR5Cal325
Mitter, J.1. In this case the Munsif awarded a partial decree in favour of the plaintiff, but on appeal the District Judge has reversed the judgment of the Munsif, and has wholly dismissed the plaintiff's suit.2. The decision of the District Judge is based upon two grounds:In the first place, he is of opinion that, after the lease to the proprietor of the mehal had been cancelled, and the zemindari had been brought under khas management, the Collector had the right to recover the arrears which were due to the proprietor whose lease was cancelled. The second ground upon which the District Judge has dismissed the plaintiff's claim is, that as regards the claim for Rs. 635, the plaintiff has no cause of action, and that the balance was justly recovered by the Government from the plaintiff under a certificate.3. As regards the first ground of the decision of the lower Appellate Court, we do not think that it is necessary in this case to express any opinion. But we are of opinion that, havi...
Tag this Judgment!Daimoddee Paik Vs. Kaim Taridar and anr.
Court: Kolkata
Decided on: May-28-1879
Reported in: (1880)ILR5Cal300
Jackson, J.1. The point raised in this special appeal is one which was considered on more than one occasion previously. We have no doubt that the Judge is in error in thinking that the parties are at liberty to rely upon the evidence furnished by the conduct of parties for the purpose of varying, adding to, or subtracting from the terms of a written contract. The evidence so given can only be evidence of an agreement which, as it was not written, must have been oral, and that is in distinct violation of the terms of Section 92 of the Evidence Act. The case decided by the Pull Bench was before the Evidence Act came into force, and moreover, I understand, in that case there was a written instrument relied upon, viz., a kabuliat, and the evidence of conduct was adduced by the learned Chief Justice as giving support to that written instrument so as to make it probable that the parties had really intended a mortgage and not a sale out-and-out. I am referred to the case of Madhub Chunder Roy...
Tag this Judgment!Auhindro Bhoosun Chatterjee Vs. Chunnoololl Johurry and anr.
Court: Kolkata
Decided on: May-22-1879
Reported in: (1880)ILR5Cal101
Pontifex, J.1. Decree for an account of principal and interest due on the mortgage to the plaintiff, in default of payment the property to be sold and plaintiff to be paid first, after satisfaction of the decree of Bolai Doss Mullick if there is then a surplus account to be taken of what is due to Protab Chund Mullick, and surplus to be applied for payment of his claim. If property has been sold under previous decree, claims to be satisfied out of surplus....
Tag this Judgment!Parbuttinath Roy and ors. Vs. Tejomoy Banerji and ors.
Court: Kolkata
Decided on: May-20-1879
Reported in: (1880)ILR5Cal303
Jackson, J.1. It appears to us that this suit was really barred. It was a suit brought by the plaintiffs against their agent and his sureties, on the ground that the defendant No. 1 had been appointed Naib for the purpose of collecting the plaintiffs' share of the rent of Pargana Ballia and others, the duties of which office he continued to perform until Bhadro, 1281 (August or September, 1864); that he then gave up his post and went away; that being afterwards sent for he came to the plaintiffs in Joisto, 1283 (June, 1876), when a settlement of account was arrived at, which was signed by the defendant. There was also an allegation as to the defendant having collected and received monies on other accounts, but nothing of that sort appears to have been found in the Courts below.2. As to the liability of the sureties, the lower Appellate Court has found that the plaintiff's have no case because their undertaking was in respect of service under five persons, and the service was actually n...
Tag this Judgment!Obhoy Nund Roy and ors. Vs. Shoteenath Moorkerjee and ors.
Court: Kolkata
Decided on: May-20-1879
Reported in: (1880)ILR5Cal331
Jackson, J.1. We think it clear that the Subordinate Judge in this case is wrong, and that the suit was barred.2. The plaintiffs sued to obtain a partition by declaration of their purchased right, and for use and occupation at pleasure of a moiety of certain premises.3. It seems that, on the 31st January 1863 they had purchased a half-share in a certain house, which originally belonged to defendants Nos. 1 and 2. They took no steps at the time to obtain possession; but, in 1869, the Nazir was directed to put them into possession, and he gave them what is called symbolical possession; but the plaintiffs not being satisfied with that, applied further to the Court, and in August 1871 they succeeded, with the assistance of the Nazir, in obtaining ingress into one of the rooms in this house. The Subordinate Judge does not find that they retained such possession for more than a minute, and it is admitted that the defendants did at once, or almost at once, resume possession, and have since co...
Tag this Judgment!The Agra Bank Vs. Dhuronidhur Sen and ors.
Court: Kolkata
Decided on: May-19-1879
Reported in: (1880)ILR5Cal86
Richard Garth, C.J.1. A review having been granted in this case upon the ground that the previous judgment of this Court contained an inaccurate statement of the facts, and that a review was necessary for purposes of justice, we are now called upon to decide a second time the appeal which has been preferred from the judgment of Mr. Justice White, whose opinion in the Division Bench prevailed over that of Mr. Justice Mitter. Messrs. Gilmore, McKilligan, and Co. were the proprietors of an indigo business called the 'Paikurdanga Concern,' over which the Agra Bank held a mortgage; one of the properties belonging to that concern was a patni taluq called 'Kalabaria,' of which Brojonath had the darpatni; the rent of this patni taluq not being paid, it was sold under the provision of Reg. VIII of 1819; and in consequence of that sale Brojonath's darpatni rights were cancelled. Brojonath then brought a suit against a number of persons including the executors of the deceased members of the firm ...
Tag this Judgment!Dirgopal Lal and ors. Vs. Bolakee
Court: Kolkata
Decided on: May-19-1879
Reported in: (1880)ILR5Cal269
Richard Garth, C.J.1. The plaintiff took a mortgage-bond from Chemnarain on the 11th of March 1868. He obtained a money-decree on that bond on the 23rd of January 1869; and under that decree he had the mortgagor's interest put up for sale on the 29th of April 1870, and purchased it himself. The defendants took a mortgage-bond of the same property in November, 1868, upon which they obtained a decree on the 31st of May 1869; and under that decree, the mortgagor's interest was sold and purchased by the defendants on the 22nd of April 1870, a few days before the plaintiff's purchase.2. Upon these facts, the lower Appellate Court has decided in favour of the plaintiff, upon the ground that his mortgage was first and his decree first. But as this is a suit for possession, we consider that the party who first purchased the mortgagor's interest and obtained possession, is entitled to retain possession as against the other, although his own right may be merely that of a trustee for the mortgago...
Tag this Judgment!Sarat Soondary Dabea Vs. Anund Mohun Surma Ghuttack and ors.
Court: Kolkata
Decided on: May-19-1879
Reported in: (1880)ILR5Cal273
Richard Garth, C.J.1. This is a suit by the zamindar to enhance a ten-annas share of a dependant taluq.2. The only defence which it is necessary for us to consider, is, that the taluq in question has been held at a fixed rate of rent from before the time of the Permanent Settlement.3. The lower Court has found, that the ten-annas share, which it is sought to enhance, has been held at a fixed rent of Rs. 510-13-5 for the last twenty years, and consequently that the rent cannot be enhanced.4. An objection has been taken by the plaintiff (the appellant), that the evidence upon which the lower Court has found this fact is insufficient in point of law; but we think that there was some evidence to justify the finding, and that the sufficiency of it was a question for the Court below.5. There are, however other circumstances in the case, which raise an important point of law, and to which the Judge does not appear to have attributed their due weight.6. It appears that upwards of twenty years ...
Tag this Judgment!In Re: Cheni Bash Shaha Vs. Kadum Mundul
Court: Kolkata
Decided on: May-19-1879
Reported in: (1880)ILR5Cal97
Jackson, J.1. We think this a very clear case; it must be determined with reference to the 75th article of the Limitation Act of 1877. At the time when the contract was entered into, the Act of 1871 was in force, of which, so far as concerns this case, the provisions were identical with those of the Act now in force.2. By waiver in this case, we think, is meant a waiver of the condition by which in default in payment of any one instalment the whole amount unpaid became immediately payable. A waiver of that stipulation consists in the receipt of an instalment after due date, instead of insisting on payment in full. That is quite a different thing from an absolute sleeping on his rights. The creditor here has not waived the stipulation, but has simply allowed time to go on.3. The time, therefore, began to run from the first default....
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