Kolkata Court July 1885 Judgments
Bidhumukhi Dabea ChowdhraIn and anr. Vs. Kefyutullah
Court: Kolkata
Decided on: Jul-31-1885
Reported in: (1885)ILR12Cal93
Wilson and Beverley, JJ.1. This is an appeal from a decision of the Subordinate Judge of Sylhet, affirming the decision of the Munsif of Habigunge. The suit was to eject a tenant from his holding. Various questions arose in the case. Ultimately it was held as a matter of fact in both Courts that the defendant was a tenant not entitled to occupancy right, but a tenant liable to be ejected on proper notice.2. One of the issues raised was, whether notice had been served upon the defendant, sufficient to determine the tenancy of a tenant not having occupancy right.3. The notice given was a two months' notice served on the 26th of the month of Pous. It, therefore, expired on the 26th Falgun. The first Court held that the notice was insufficient on this ground. 'Notices were indeed served, but their terms did not expire at the end of the year. I therefore find that the notices were not served according to law, and therefore the tenants cannot be evicted under such a notice.'4. The lower Appe...
Tag this Judgment!Hurry Charan Bose Vs. Subaydar Sheikh
Court: Kolkata
Decided on: Jul-30-1885
Reported in: (1885)ILR12Cal161
Mitter and Macpherson, JJ.1. The question which we have to determine in this case is whether the decree dated the 14th June 1881 is barred by limitation. It is a decree passed under the Rent Act, and the amount decreed is less than Rs. 500, and therefore the special limitation laid down under Section 58 of that Act will apply to this case. Now, the provisions of the corresponding section of Act X of 1859 were considered in a Full Bench decision in the case of Rhidoy Krishna Ghose v. Kailas Chandra Bose 4 B.L.R.F.B. 82. According to that decision the decree-holder would be in time if he makes the application for the issue of process of execution within three years from the date of the decree. In this case, on the 14th June 1884, that is within three years from the date of the decree, an application for execution was filed. At foot of that application it was stated that this decree having been executed in No. 30 of 1884, the petitioner was substituted for the original decree-holder and a...
Tag this Judgment!Bhola Nath Dass and ors. Vs. Sonamoni Dasi
Court: Kolkata
Decided on: Jul-30-1885
Reported in: (1885)ILR12Cal273
Mitter and Macpherson, JJ.1. It has been contended before us that this Rule ought to be discharged, because the appeal in connection, with which it was issued was not tiled in accordance with the provisions of the Code of Civil Procedure.2. The contention of the opposite party is that the order which has been passed by the lower Court under Section 396 of the Code defining the several rights of the parties interested in the property in dispute, is not 'a decree' as defined in Section 2; that it is merely an interlocutory order against which, it has been urged, no appeal lies.3. We are of opinion that, this contention is not sound. As regards the question whether the order under Section 396 comes within the definition of 'decree' as given in Section 2, there is no difference between such an order and one passed under similar circumstances regarding the partition of an immoveable property paying revenue to Government. There is as much reason to characterize the one as the other a 'decree...
Tag this Judgment!Narendra NaraIn Rai Vs. Bishun Chundra Das and ors.
Court: Kolkata
Decided on: Jul-29-1885
Reported in: (1885)ILR12Cal182
Tottenham and Agnew, JJ.1. In this case it appears that the plaintiff on the 6th April 1871 purchased the whole of a certain zamindari at a sale for arrears of revenue. The present suit is for possession of 24 bighas of mal land appertaining to certain notes in the zamindari. The defendants contend that the land is lakheraj. The lower Appellate Court held that the onus was on the plaintiff to show that the lands were mal, that he had failed to discharge it, and dismissed the suit. The case of Bacharam Mundul v. Peary Mohun Banerjee I.L.R. 9 Cal. 813 in which the decision was based upon a ruling of the Privy Council in Harihar Mukhopadhya v. Madab Chandra Babu 8 B.L.R. 566 : 14 Moore's I.A. 153 is a distinct authority for holding that in a suit for resumption of lands, when the defendant alleges that the lands are lakheraj the onus is on the plaintiff, in the first instance, to show that the lands are mal, and that if he fails to make out a prima facie case the suit should be dismissed....
Tag this Judgment!Lakhi NaraIn Pradhan Vs. Ram Prosad Janna and anr.
Court: Kolkata
Decided on: Jul-29-1885
Reported in: (1885)ILR12Cal197
Tottenham and Agnew, JJ.1. The points raised in this appeal are that the lower Appellate Court was wrong in holding that the suit was not barred under the provisions of Article 136 of the Limitation Act, and also that the Appellate Court was wrong in reversing the first Court's finding as to the passing of the consideration and the benami nature of the transaction between the plaintiff and the defendants.2. As regards the last two points we think that the findings of the Appellate Court are unassailable in second appeal. The onus lay upon the defendants to prove that consideration had passed, and that the transaction was benami and in the evidence the lower Courts found against the defendants.3. As regards the point of limitation we think that the appellant's vakil is wrong in contending that the case falls under Article 136 of the Limitation Act. It is true that the defendants' vendors were not in possession at the time of the sale, but we think that the article is not intended to app...
Tag this Judgment!Ram Chandra Shaha and ors. Vs. Shambhu Nath Nath and anr.
Court: Kolkata
Decided on: Jul-28-1885
Reported in: (1885)ILR12Cal267
Wilson and Beverley, JJ.1. The only point discussed before us on this appeal is, whether secondary evidence of the contents of an acknowledgment used to keep alive a cause of action beyond the ordinary period of limitation, can be given, where the original is proved to have been lost or destroyed, or whether the effect of paragraph 2 of Section 19 of the present Limitation Act XV of 1877 is absolutely and always to exclude secondary evidence in such a case.2. This section first provides for keeping alive a claim by acknowledgment, and requires that such acknowledgment shall be in writing and signed, and shall be given before the claim is barred by limitation. Then in the second paragraph it is said: 'When the writing containing the acknowledgment is undated oral evidence may be given of the time when it was signed; but oral evidence of its contents shall not be received.' Now, the question is, what is the meaning and effect of these words?3. In the former Limitation Act (Act IX of 1871...
Tag this Judgment!Chintamani Naik and anr. Vs. Bata Krishna Naik and ors.
Court: Kolkata
Decided on: Jul-23-1885
Reported in: (1885)ILR12Cal262
Tottenham and Agnew, JJ.1. This suit for the recovery of the plaintiffs' share in a joint family property was on one occasion dismissed by the Court below on the ground of limitation, the District Judge being of opinion that a separation had taken place so long before the institution of the suit that the plaintiffs could not succeed without proving his [their?] possession within twelve years. On second appeal to this Court, the case was remanded for a fresh decision, as we thought that the District Judge bad wrongly dealt with the question of limitation. The lower Appellate Court has now found for the plaintiffs, and has affirmed the decree made in their favour by the first Court. The defendants are the appellants in the present appeal.2. The principal ground upon which the vakil for the appellants has addressed us is that the original stock of the family having been subjected to a separation many years ago, the presumption as to the joint family can no longer be maintained in regard t...
Tag this Judgment!Adhirani NaraIn Kumari, Raj Rani of Burdwan Vs. Raghu Mohapatro
Court: Kolkata
Decided on: Jul-22-1885
Reported in: (1885)ILR12Cal50
Tottenham and Agnew, JJ.1. The plaintiff in this case sues under Act X of 1859 for rent for the years 1287, 1288 and 1289. It appears that in 1289, after the rent for that year had become due, she sued for rent for the year 1286. The District Judge has held upon the. authority of Taruck Chunder Mookerjee v. Panchu Mohini Debya I.L.R. 6 Cal. 791 that the suit is barred. The only question which we have to decide is whether the provisions of Section 43 of the Civil Procedure Code apply to suits under Act X of 1859. The point has not, so far as we are aware, been raised in, this Court. We find, however, that a Full Bench of the Allahabad High Court has held in the case of Madho Prakash Singh v. Murli Manohar I.L.R. 5 All. 406 that the Courts of Revenue in the Northwestern Provinces in those matters of procedure upon which the Bent Act of those provinces is silent, are governed by the provisions of the Civil Procedure Code, and that Section 43 is applicable to suits tried under the Northwes...
Tag this Judgment!Ramruttun Pattuck and anr. Vs. Chundra Kaminy Debea
Court: Kolkata
Decided on: Jul-21-1885
Reported in: (1885)ILR12Cal302
Wilson and Beverley, JJ.1. Two points have been raised before us upon this appeal. The first is this: It is said that the plaintiffs asked only for a declaratory decree in the first instance. The lower Appellate Court has held that they are not entitled to a mere declaratory decree because, being out of possession and therefore entitled to ask for possession, they could not, under Section 42 of the Specific Relief Act, have a mere declaratory decree. It is argued that they ought not to have had any relief at all, whereas the lower Appellate Court has given a decree declaring their title and giving them possession--a decree which it is said they never asked for.2. The answer to that seems to us to be this. In their plaint it is true they asked specifically only for a declaration of their title. They did not ask for confirmation of possession in the form which is so often used in the country; but for declaration of title arid for any other relief which they might be deemed entitled to.3....
Tag this Judgment!Gunga Das Dey Vs. Ramjoy Dey and ors.
Court: Kolkata
Decided on: Jul-20-1885
Reported in: (1885)ILR12Cal30
Wilson and Beverley, JJ.1. This is an appeal against a decision of the District Judge of Tipperah, rejecting an appeal as having been presented out of time.2. A preliminary objection has been raised that no appeal will lie in such a case to this Court. The question is, whether an order dismissing an appeal under Section 4 of the Limitation Act is a ' decree passed in appeal,' from which a second appeal is allowed under Section 584 of the Code. We think that it is such a decree. By Section 2 of the Code an order rejecting a plaint is within the definition of 'decree,' and by Section 582 the provisions hereinbefore contained are made to apply to appeals sp' far as such provisions are applicable. We think then that an order rejecting or dismissing an appeal is a decree of the Appellate Court under the terms of the definition.3. The decree against which the appeal was preferred was prepared on September 22nd, 1883, and the application for a copy was made on September 29th. Prom September 3...
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