Kolkata Court March 1883 Judgments

Ram Chunder Sao Vs. Bunseedhur Naik

Court: Kolkata

Reported in: (1883)ILR9Cal741

Richard Garth, C.J.1. I am of opinion that the chitta of 1844, Which has been treated by the Subordinate Judge as no evidence against the present defendant, was not evidence, and that he was perfectly right in the view which he took.2. As I understand, this was a chitta prepared by the Deputy Collector, with a view to resumption proceedings being taken, and the way in which that chitta was sought to be used in this case by the plaintiff, was that in that chitta the 1 bigha and 19 cottas of land in suit which has been found by the Subordinate Judge to be lakeraj, was not entered as lakeraj, but as rent-paying land.3. I think that having regard to the object of the chitta, and 'to the way in which it was prepared, it cannot be made evidence under Section 83 of the Evidence Act.4. The maps and plans, which are mentioned in that section, are, as it seems to me, maps and plans made by the Government for public, purposes; I quite agree with the learned Judges, who decided the case of Junmajo...

Haranund Mozoomdar Vs. Prosunno Chunder Biswas and ors.

Court: Kolkata

Reported in: (1883)ILR9Cal763

Richard Garth, C.J.1. We think it clear that the lower Courts have made a mistake in this case.2. They have dismissed the suit upon the ground that there was a misjoinder of defendants; or, in other words, that instead of bringing one suit against all the defendants, Nos. 7 to 11, who purchased at the execution sale different portions of the property in question, they ought to have brought five different suits, one against each of those defendants.3. The plaintiff's case is, that before the execution sale, under which the defendants 7 to 11, purchased these properties, they were purchased by him from the execution-debtors by private contract, and that he took possession of them. These properties were afterwards attached in execution under a decree obtained against the judgment-debtors by the defendants Nos. 1 to 3, whereupon the plaintiff preferred a claim to the whole property in the execution proceedings, but the Court decided against him; and so it was sold and bought by the defenda...

Atri Bai Vs. Arnopoorna Bai

Court: Kolkata

Reported in: (1883)ILR9Cal838

Prinsep, J.1. A preliminary objection has been raised to the hearing of this appeal that the law (Section 39 of the Land Acquisition Act of 1870) does not provide for a second appeal; and that only certain provisions of the Code of Civil Procedure, among which the chapter relating to appeals is not to be found, are extended to proceedings under that Act, The case falls under Part IV of the Land Acquisition Act, and relates to the apportionment of the compensation awarded. The limitation of the application of the Code applies only to Part VII. Further it appears to us from the very nature of the dispute between the parties that these proceedings must be regarded as a suit. In the next place Section 39 declares that in cases like the present case 'the appeal shall lie in the first instance to the District Judge,' from which it would seem that a further appeal was contemplated by the Legislature. In any case, however, having regard to the nature of the proceedings and the powers conferred...

ishan Chunder Chattopadhya Vs. Shama Churn Dutt and ors.

Court: Kolkata

Reported in: (1884)ILR10Cal41

Richard Garth, C.J.1. I confess I have had some doubt during the arguments whether this case comes within the principle which has been so frequently acted upon in this Court, and of which the case of Sattyabhama Dassee v. Krishna Chunder Chatterjee I.L.R. 6 Cal. 55 forms an example.2. But on a closer investigation of the facts, and having regard to the way in which the defendants have framed their defence in the present suit, I am satisfied that it does come within that principle.3. In the year 1877, one of the four defendants, who had registered himself as the owner of the property in the place of his deceased father, the former owner, was sued for rent by the plaintiff in respect of his, the plaintiff's share of this very land; and the defendant's answer in that suit was a denial of the plaintiff's title, and an assertion that he (the defendant) and his father had a lakeraj title to the property.4. It is perfectly true that in his written statement in that case he also alleged that t...

Mohiny Mohun Das Vs. Krishno Kishore Dutt and ors.

Court: Kolkata

Reported in: (1883)ILR9Cal802

Richard Garth, C.J.1. In this case the Subordinate Judge has unfortunately taken an erroneous view of the law.2. The subject of the dispute was a piece of land between two estates. It is admitted that one of these estates belonged to the plaintiff, and the other to the defendants. The question was, to which of the two the piece of land in question belonged.3. Between these two estates there was a baor or water channel; and it seems to have been found by the Courts below that the land in question was formed by the silting up of this baor. Evidence was called on both sides to show at what time the silting up took place, or in other words, at what time the land in question, which was originally covered with water, became dry.4. Upon that point the Subordinate Judge appears to have believed the defendants' witnesses in preference to those of the plaintiff. The defendants' witnesses said that the land became dry more than twelve years before suit: and the plaintiff's witnesses said that it ...

Radha Prosad Singh Vs. Sundur Lall and anr.

Court: Kolkata

Reported in: (1883)ILR9Cal644

Mitter, J.1. This is an appeal against the decision of the District Judge of Sarun, dismissing a petition for execution of decree, dated the 4th August 1870, upon two grounds: (1st), that the application for execution is barred by limitation; and (2ndly), that as regards one of the judgment-debtors, viz., the defendant No. 2, he is liable only to the extent of the property hypothecated in a certain bond executed in favour of the plaintiff,' decree-holder, and that that property having been sold he is not any further liable for the balance of the decree. It appears that the application next preceding the one now, under our consideration for execution was filed on the 26th September 1877. It was followed by the sale of certain property: on the 1st of April 1878. Then it further appears that on the 8th July 1878, the decree-holder deposited Rs. 2 as Nilamee fees, that is, costs of bringing certain property to sale in execution of the decree in question. The present application was made on...

The Oriental Bank Corporation Vs. the Baree Tea Company, Limited

Court: Kolkata

Reported in: (1883)ILR9Cal880

Richard Garth, C.J.1. In these cases I entirely agree with the Court below, and upon the same grounds.2. Both suits were brought to recover the amount of certain bills of exchange from the defendants Company, which bills, it was alleged, had been drawn by Messrs. Nicholls & Co., upon, and accepted by themselves as the defendants' Agents, and endorsed by Nicholls & Co. to the plaintiffs Bank.3. Messrs. Nicholls & Co., were undoubtedly the Managing Agents of the defendants Company and by the Articles of Association they were empowered as such Agents 'to draw, accept, endorse, and negotiate on behalf of the Company all such cheques, promissory notes, drafts, etc., as should be necessary for enabling them to carry on the business of the Company.'4. The bills in question were drawn by Nicholls & Co., upon the Managing Agents of the Baree Tea Company; they were accepted by Nicholls & Co., under the description 'Managing Agents of the Baree Tea Company.' They were payable to the order of Nich...

Tara Prasad Mytee and anr. Vs. Nund Kishore Giri and ors.

Court: Kolkata

Reported in: (1883)ILR9Cal842

Prinsep, J.1. The main objection taken before us in this case is that the plaintiffs' suit should be dismissed, because they have failed to produce the sale certificate on which they acquired their title. It has nowhere been denied, nor is it disputed before us, that the plaintiffs purchased in an execution sale the right, title and interest of the defendants, judgment-debtors, in the present case. We, therefore, think that this objection is untenable, and in this respect we agree with the judgment of a Division Bench of this Court in the case of Doorga Narain Sen v. Baney Madhub Mozoomdar I.L.R. 7 Cal. 199 in which it was held that 'the order affirming the sale would be sufficient to pass a title to the purchaser; and the certificate which might afterwards be obtained by him would be merely evidence that the property so passed.'2. We therefore dismiss the appeal with costs....

Judoonath Ghose Vs. Schoene Kilburn and Co.

Court: Kolkata

Richard Garth, C.J.1. I think that both the lower Courts have taken an erroneous view of the law in this case. In the Munsif's Court two issues were raised: first, whether the defendants did relinquish the land; and, secondly, whether the relinquishment was good in law. With regard to the first point, which was a question of fact, the Munsif found that the defendants had relinquished the land, and that they had given the notice to quit, upon which they relied. And upon the second point, namely, whether the notice was good in law, the Munsif found that it was, holding, apparently, that a lessee, under a lease of this kind, was at liberty, after due notice to his landlord, to relinquish his lease, and that upon relinquishing it, and holding no further possession of it, his obligation was at an end.2. The Subordinate Judge appears to me to be rather doubtful about confirming the view of the law which the Munsif had laid down. He says: 'That the defendants gave three months' previous notic...

Gopal Chundra Mittra and ors. Vs. Srinath Dutt

Court: Kolkata

Reported in: (1883)ILR9Cal511

Cunningham, J.1. The question to be decided in this appeal is whether a debt secured by mortgage of immoveable property has been rightly sold in execution of decree, under the provisions of the Civil Procedure Code applicable to moveable property.2. The learned Judge below has regarded it merely as a debt, and has held that it was rightly sold as moveable property. We feel some difficulty in adopting this view. A mortgage is not merely a debt; it represents a substantial interest in the mortgaged property, viz., the right of selling it, under certain conditions, in realization of the debt. It is obvious that if the debt alone, apart from the security, is sold in execution, the full value of the mortgage will not be realized. The case does not appear to be expressly provided for by the Code. We think that in such cases there should be an attachment under Section 274 as well as under Section 268. In the present case, as the debt alone was sold, a material irregularity producing substanti...