Kolkata Court March 1881 Judgments
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Lulit Singh and anr. Vs. Wazir Mahton and anr.
Court: Kolkata
Decided on: Mar-12-1881
Reported in: (1881)ILR7Cal166
Mitter, J.1. This is a second appeal against a decree in conformity with an award made by an arbitrator. The first Court held that the objections raised by the defendants should be disallowed, and passed a decree in conformity with the award. The second Court expressed its opinion that the faults, which it found with the award, were not such as would allow it to disturb the judgment.2. It has been strenuously contended before us, that the proceedings in the first Court were such as to make it incumbent on the lower Court to bear the appeal on the merits. This objection, we may say at once, cannot be supported. If the decision of the first Court, for any reason, was not final, the second Court could do no more than remand the case to that Court for disposal on the merits.3. The case being governed by the old Code of Civil Procedure, we have to determine whether there was an award and a judgment in conformity therewith. If so, by Section 325 of that Code, the second Court had no jurisdic...
Grishchunder Bundopadhya and ors. Vs. Dwarkanath Pal and ors.
Court: Kolkata
Decided on: Mar-11-1881
Reported in: (1881)ILR6Cal827
Morris, J.1. This suit was instituted by one Grish Chunder Bundopadhya, one of two auction-purchasers, who, on the 13th January 1871, jointly purchased the estate, Talook Sributso Doss, when it was put up to sale for arrears of Government revenue on the default of the proprietors, Raj Coomar Bose and Dino Nath Bose. After their purchase, the auction-purchasers found themselves unable, in four villages of the property, to realize rent direct from the ryot-cultivators, owing to the opposition of the former proprietors, the Boses who asserted their right to collect the rent in virtue of holding certain intermediate tenures in the shape of two shikmi talooks and one howla tenure. Various suits for rent were instituted against the ryot-cultivators, either by the Boses as plaintiffs, in which the auction-purchasers intervened, or vice versa by the auction-purchasers as plaintiffs, in which the Boses intervened. The litigation was carried up to the High Court, and the final result in April 18...
Asmutullah Dalal and ors. Vs. Kally Churm Mitter
Court: Kolkata
Decided on: Mar-11-1881
Reported in: (1881)ILR7Cal56
Tottenham, J.1. The question for decision in this appeal is, whether the execution of the decree held by the respondent is barred by limitation as is contended by the appellants. The law applicable is Act XV of 1877.2. The date of the decree is the 12th June 1875, and this application for execution, apparently the first, was filed on the 13th of December 1879,---i.e., four and-a-half years after the above date.3. It appears that the parties had filed a solenamah in the original suit, the terms of which were embodied in the decree. It was accordingly directed that the decretal amount should be paid off by instalments on particular dates: specified, the last instalments falling due between two and three years after the date of the decree. And it was provided, that should the judgment-debtors make default in the payment of any three instalments, the decree-holder might thereupon execute the decree for the whole amount at once, without waiting for the subsequent instalments. In the very fi...
Rajkishore Shaha Vs. Bhadoo Noshoo and ors.
Court: Kolkata
Decided on: Mar-11-1881
Reported in: (1881)ILR7Cal78
Morris, J.1. The plaintiff, appellant, lent money, in December 1875, to one Asman Singh, who, as security for the repayment of the loan, mortgaged an elephant to the plaintiff, retaining possession of the animal.2. Asman Singh having died without paying off the debt, the plaintiff sued his representatives in 1877, and obtained a money-decree on the 8th May 1877. Subsequently, one Kenaram Oswal, who held another decree against Asman Singh, caused the mortgaged elephant to be sold in execution of that decree. The present plaintiff objected to the sale, on the ground of his own lien upon the elephant, and the sale was effected with notice to the purchaser of the plaintiff's claim. The present suit was brought against the auction-purchaser and against the debtors to obtain an order for the sale of the elephant in satisfaction of the debt.3. The purchaser, the defendant No. 1, represented that the elephant had passed into the hands of the third parties, who intended to buy it from him.4. Th...
In Re: Asgur HosseIn and ors.
Court: Kolkata
Decided on: Mar-10-1881
Reported in: (1881)ILR6Cal774
Pontifex, J.1. (The learned Judge, having gone through the evidence, confirmed the finding of the Sessions Judge. His Lordship then continued.)2. The deposition before the Deputy Magistrate of one of the complainants (Darshan) was admitted by the Sessions Judge under Section 33 of the Evidence Act, it being stated by certain of the witnesses that he was ill and confined to his house. We are of opinion that the evidence as to his illness was not sufficient to bring the case within Section 33 of the Evidence Act. The Sessions Judge ought to have required more precise evidence as to the nature of the illness and the incapacity of the witness to attend. A case has been cited to us, that of Pyari Lall petitioner (4 C. L. R., 504), in which it was held that the incapacity to give evidence mentioned in Section 33 must be a permanent incapacity. In our opinion, that is not a necessary construction. We are inclined to think, on the construction of the entire section, and from reference also to ...
Sheriff Vs. Gobind Mohun Chuckerbutty
Court: Kolkata
Decided on: Mar-10-1881
Reported in: (1881)ILR7Cal169
Richard Garth, C.J.1. We think that this appeal must be dismissed. [The learned Judge here stated the facts and continued.]2. The only ground of defence which has been relied upon is that in the former suit, which was brought in 1275, although the decree of the Court was merely for rendering an account, a commissioner was appointed to adjust the accounts between the parties, and to ascertain what sum was due from the defendant; that the commissioner found Rs. 82-3-11 only to be due; and that the plaintiff in this suit is bound by that finding.3. Now although it certainly does appear, that, in the former suit, a commissioner was appointed for some purpose or other we do not find that he had any authority to go into the account, or to ascertain what was due. The decree merely orders the defendant to render proper accounts to the plaintiff; and it has not been proved how or why the commissioner was appointed, nor that the report of the commissioner was in any way confirmed by the Court.4....
Rajun Mahta and ors. Vs. Achul Mahta and ors.
Court: Kolkata
Decided on: Mar-09-1881
Reported in: (1881)ILR6Cal812
Cunningham, J.1. In this case the plaintiff's cause of action is the forcible obstruction in September 1877 of a right of way through the defendants' premises, which the plaintiff alleges that he has peaceably and publicly used for upwards of fifty years. The original Court, finding that no easement was proved, and that any use made of the way by the plaintiff was permissive only, dismissed the suit.2. The lower Appellate Court, considering that the right of way two feet wide was proved, reversed the decision of the Munsif, and gave the plaintiff' a decree. The objection, however, was taken, and is now urged before us in special appeal, that there was no proof of enjoyment within two years before the suit was brought, and that, accordingly, the right was barred under the 4th para, of Section 26 of the Limitation Act of 1877.3. As to this point the Judge observes: 'I do not find any proof that there was any interruption (which was submitted to for one year) before December 1875.' This r...
The Empress Vs. Nuddiar Chand Shaw, Accused
Court: Kolkata
Decided on: Mar-09-1881
Reported in: (1881)ILR6Cal832
Pontifex, J.1. The accused has been convicted under Section 60 of ' The Bengal Excise Act,' VII (B. C.) of 1878. This Section enacts that, ' every licensed retail vendor who sells by wholesale...shall be liable for every such offence to a fine not exceeding two hundred rupees. '2. The Sessions Judge is of opinion that the conviction is bad: (1) because the sale of twelve bottles of beer and three bottles of brandy at the same time, is not a sale by wholesale; and (2) because the person convicted is not a retail vendor, but the servant of such a vendor.3. We think that the Sessions Judge is right in his view of the law as to the second point.4. As to the first point, there is more room for doubt. Under Section 15 of ' The Bengal Excise Act,' the sale of a larger quantity of spirituous or fermented liquors than twelve quart bottles would be a sale by wholesale. If, therefore, more than twelve bottles of beer or of brandy, i. e., of the same kind of liquor, had been sold at one transactio...
In Re: Behala Bibi
Court: Kolkata
Decided on: Mar-07-1881
Reported in: (1881)ILR6Cal789
Pontifex, J.1. We think that the conviction in this case cannot be sustained.2. The facts are as follows:---Behala, the appellant, with her infant, was sleeping in the same room with her husband. Her husband, on awaking about dawn, found her and her child missing. After some search, she was found at a relation's house, but without the child. As to what had become of the child she then, and subsequently, made contradictory statements. She said at one time that she had left it in the room with her husband. At another time she said that she had been enticed away by one Rakhal; that the child had cried, and Rakhal had said 'let me go and leave it with its father;' that he then took the child away and quickly returned, upon which she and Rakhal went away together.3. Before the Magistrate she said that one Herasatula had enticed her away, and that he had thrown the child into the river.4. The Sessions Judge has believed the last story, and has convicted the woman under Section 201 of the Pen...
Uma Sundari Dasi Vs. Ramjihaldar and ors.
Court: Kolkata
Decided on: Mar-07-1881
Reported in: (1881)ILR7Cal242
Richard Garth, C.J.1. We think that the Court below was not justified in dismissing the plaintiff's suit.2. The Munsif was undoubtedly wrong in rejecting the claim, because one of the parties who had been made a plaintiff was of infirm mind. The man had not been adjudicated a lunatic; and had not therefore lost his civil rights, and there was no reason why he should not have appeared either by vakeel or in person; see 2 Wm. Saund, Rock v. Slade (7 Dowl., 22), and Gleddon v. Trebble (9 C.B.,N.S., 367). In this respect the District Judge was quite correct.3. But the great mistake which was made by the Munsif was this.4. One out of several co-sharers brought the suit, asking to have his co-sharers joined as plaintiffs. No objection upon the ground of the non-joinder of these co-sharers appears to have been taken by the defendants; and therefore, if the plaintiff herself had not suggested the difficulty, the suit might have proceeded in the name of one plaintiff, and she might have recover...
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