Kolkata Court May 1881 Judgments
Sheikh Akbar Vs. Sheikh Khan and anr.
Court: Kolkata
Decided on: May-31-1881
Reported in: (1881)ILR7Cal256
Richard Garth, C.J.1. We have taken time to consider our judgment in this case, not because we had any doubt as to the result of the decision in the lower Court being correct, but because several points and authorities have been dealt with there, which appear to require some explanation.2. In the first place we think it clear that the document in question was not admissible in evidence. It was a copy of a lost promissory note, which was itself inadmissible as being insufficiently stamped; and the copy, of course, could not be received in evidence any more than the original.3. Whether evidence of the consideration for the note was admissible, depends upon the circumstances under which the note was given; and it is upon this part of the case that we think the Judge in the Court below has not quite understood the meaning of the authorities to which he refers.4. When a cause of action for money is once complete in itself, whether for goods sold, or for money lent, or for any other claim, a...
Tag this Judgment!Wood Vs. the Corporation of the Town of Calcutta
Court: Kolkata
Decided on: May-31-1881
Reported in: (1881)ILR7Cal322
Mitter, J.1. After stating the facts as above, continued---Mr. O. C. Dutt refused to hear the evidence that was tendered on behalf of the petitioner, on the ground that the Chairman's assessment having become final under the last para, of Section 79, the question, whether he was liable to take out a license under Section 75, could not be re-opened. One of the grounds upon which the conviction has been questioned is, that this view of the law is not correct.2. The other ground upon which the conviction has been questioned is, that Mr. O. C. Dutt, by reason of his connection with the Corporation of the town of Calcutta, as their collector of taxes, was incompetent to try this case.3. I am of opinion that the proceedings and the ultimate conviction are illegal. In the first place it seems to me that Mr. O. C. Dutt was not right in convicting the petitioner without allowing him to substantiate his defence by evidence. The construction put upon the word 'final' in the last para, of Section ...
Tag this Judgment!Parbath Chund Deb Vs. Ain-ud-deen and ors.
Court: Kolkata
Decided on: May-31-1881
Reported in: (1881)ILR7Cal577
Richard Garth, C.J.1. The plaintiff sued for a partition, and the facts are these: Monwar Ali is the owner of an undivided twelve annas share in a mouza, and Ali Kasim and others are entitled to the remaining four annas. The defendants have obtained a patni of the four annas share, and the plaintiff has obtained from Monwar Ali a mokurari of a small portion of the twelve annas share. Under this mokurari, he has an undivided twelve annas share in a small area of a mouza. The entire mouza held in joint possession consists of upwards of 100 droues of land; and the portion in which the plaintiff has a twelve-anna share is less than two drones. Under there circumstances, the plaintiff sues the defendants for a partition,-that is to say, he prays to have the small area in which he has a twelve-anna share divided as between him and the four annas patnidar, Neither of the zemindars is made a party to the suit; and the defendants object that, in point of law, the plaintiff is not entitled to th...
Tag this Judgment!Mohabeer Pershad Singh Vs. Mohabeer Singh
Court: Kolkata
Decided on: May-31-1881
Reported in: (1881)ILR7Cal591
Richard Garth, C.J.1. I think that, in a case of this kind, where the plaintiff is dispossessed by a person who is found to have no title, and to be a trespasser, it is sufficient for the plaintiff to prove that he was in quiet possession at the time when he was so dispossessed. It seems to me, that this ought to be sufficient to establish a prima facie case as against the defendant. I am aware that there is some difference of opinion in the Court upon this point; and that some learned Judges consider, that the remedy by a possessory action, which is now provided by Section 9 of the Specific Relief Act, and which was formerly given by the Limitation Act, has the effect of doing away with the English rule, that possession is prima facie evidence of title. I do not see why that should be. The rule seems to me a very wise and convenient; one, and I should be sorry to see it abolished. I think, therefore, that the Court below is right, and that the appeal should be dismissed with costs.McD...
Tag this Judgment!Nilratna Bose Vs. Kasumunnissa Bibee
Court: Kolkata
Decided on: May-31-1881
Reported in: (1882)ILR8Cal79
Pontifex, J.1. In this appeal both the parties claim under the representatives of one Ashutosh Dey. The plaintiff claims under a mortgage made by Ashutosh's representatives on the 11th January 1865. The mortgagee instituted a suit upon that mortgage, making a second mortgagee, whose mortgage was dated the 12th January 1865, a defendant in that suit. He also made the representatives of Ashutosh Dey defendants. And on the 13th November 1865, he obtained a decree on the Original Side of this Court, directing that, unless the defendant paid his mortgage-debt within a time therein named, the property should be sold. Under that decree the property was sold on the 30th March 1867, and purchased by the present plaintiff. A conveyance was made to the present plaintiff on the 6th November 1868; and on the 13th March 1879, he instituted this suit against the defendant, claiming khas possession of the property which he purchased.2. The defendant's title, also under the representatives of Ashutosh,...
Tag this Judgment!Lokessur Koer Vs. Purgun Roy and ors.
Court: Kolkata
Decided on: May-30-1881
Reported in: (1881)ILR7Cal418
Richard Garth, C.J.1. We are of opinion that as the plaintiff was put in possession under that decree by the officer of the Court, the form in which execution was given was quite immaterial. All that was necessary was for the officer of the Court to go upon a portion of the land, and give the plaintiff possession of that portion in respect of the whole ; and any formal mistake which may have been made by the officer in the mode of giving possession could not prejudice the plaintiff. It does not appear that the defendants resisted the officer when he gave possession, or that it become necessary to turn them out by main force.2. The Subordinate Judge has, unfortunately, fallen into the common error which prevailed in the Mofussil Courts a few years ago, that the formal possession which the Civil Court gives under an execution is not actual possession ; whereas, as between the parties, it operates, in point of law and in fact, as a complete transfer of actual possession from the one party...
Tag this Judgment!Ram Chunder Shaha and ors. Vs. Manick Chunder Banikya and anr.
Court: Kolkata
Decided on: May-30-1881
Reported in: (1881)ILR7Cal428
Pontifex, J.1. In this case the parties, or their respective ancestors, (sic) together in carrying on a joint karbar, or partnership, which continued for many years down to the year 1280. The plaintiffs, on the 15th September 1876, within three months after the termination of the business, instituted a suit in the Court of the Subordinate Judge of Dacca, whereby they claimed that, on an adjustment of accounts between the parties, they would be entitled to a very considerable sum. The defendants, by their written statement, insisted, on the other hand, that, on an adjustment of accounts, they would be entitled to a still more considerable balance. The parties being thus at issue, the Subordinate Judge, who tried the case, framed seven issues, to be found in his judgment. Now, assuming for a moment that the Subordinate Judge had jurisdiction to try the case, the course which he ought to have pursued is clearly pointed out in Forms Nos. 132 and 133 of schedule iv of the Code of Civil Proc...
Tag this Judgment!Patterson Vs. Manly
Court: Kolkata
Decided on: May-27-1881
Reported in: (1881)ILR7Cal339
Richard Garth, C.J.1. This is an appeal from a decision of Mr. Justice Pontifex in the Privy Council Department, refusing leave to appeal to the Privy Council upon the ground that there was no point of law, and that, on the facts, the High Court had agreed with the judgment of the Court below.2. A preliminary objection has been taken by the Standing Counsel that no appeal lies under such circumstances; and there is no doubt that this is an attempt to reopen a question which was decided by this Court in the year 1876. See Mussamut Amirunnesa v. Baboo Behary Lall (25 W. R., 529).3. The sections in the Civil Pro (sic) lure Code, under which Mr. Bell says he has a right to appeal, are contain .(sic)a in chap, xlv; but these sections present no new phase of the law upon this subject since the above case was decided, because at that time the Privy Council Act, VI of 1874, was in force, and the sections in that Act upon the subject are identically the same as those in chap, xlv of the Civil P...
Tag this Judgment!Damodur Biddyadhur Mohapatro and anr. Vs. Syamanund Dey
Court: Kolkata
Decided on: May-27-1881
Reported in: (1881)ILR7Cal385
Hitter, J.1. In a proceeding under Section 530 of the Criminal Procedure Code between the petitioner and the oppose party regarding the possession of 1,100 mans of jnlpai lands, the Deputy Magistrate of Balasore, on the 14th February last, confirmed the opposite(sic) party m possession. The record shows that no preliminary, proceeding, stating the grounds upon which the Magistrate was satisfied that a dispute likely to induce a breach of the peace existed, was recorded. Probably on this ground, at the final hearing, objection was taken to the jurisdiction of the Magistrate, and he deals with this question in the final judgment.2. One of the grounds upon which this rule was obtained was, that the Magistrate having omitted to record the preliminary proceeding referred to above, the whole proceeding was ultra vires, and therefore should be set aside. It has been contended on behalf of the opposite party that, as the final judgment shows that the Magistrate was satisfied of a dispute likel...
Tag this Judgment!Nilmadhub Shaha and ors. Vs. Srinibash Kurmokar
Court: Kolkata
Decided on: May-26-1881
Reported in: (1881)ILR7Cal442
Pontifex, J.1. It is admitted in this ease, on the findings of the lower Courts, that the plaintiff is entitled to recover, unless he is barred by Section 27 of Beng. Act VIII of 1869 from suing. That section gave him a limitation of one year, and the plaintiff instituted the suit after the expiration of eleven years from the date of the alleged dispossession. Now, taking the words of that Section by themselves, and putting, what I think is, a reasonable construction upon them, it seems to me they do not apply to this case, and the defendants are not entitled to insist upon them. The facts of the case are, that the defendants claim that immediately prior to the dispossession of the plaintiff, adarpatni was created in their favour, and upon its creation they at once proceeded to dispossess the plaintiff from his holding. Now the words of the section are: 'All suits to recover the occupancy or possession of any land, farm, or tenure from which a ryot, farmer, or tenant has been illegally...
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