Court : Kolkata
Reported in : (1893)ILR20Cal579
Prinsep and Beverley, JJ.1. The minor Maharaja of Burdwan, whose estates are under the Court of Wards, has, under Section 101, Sub-section 2(a) of the Bengal Tenancy Act, obtained an order from Government directing proceedings under Chapter X of that Act in respect of an estate in the southern part of the district of Midnapore.2. The result of this measurement having prima facie shown that the lands held by the ryots are in excess of the areas specified in their rent receipts and the zemindari papers, an application was made under Section 104, Sub-section 2 to the Settlement Officer to settle a fair and equitable rent in respect of such lands as are in excess of those for which they were paying rent.3. The tenants--and there are 159 of them in the case now in appeal before us--represented that their lands had been held in jote since the time of their respective ancestors, that they had always been in possession and enjoyment of the lands within their present boundaries, that they had n...
Tag this Judgment!Court : Kolkata
Reported in : (1892)ILR19Cal787
Prinsep and Banerjee, JJ.1. The plaintiff sues to recover possession of 1 1/2 bighas of land as lakhiraj situate within the patni property bought by the defendant at a patni sale. She claims title as being a valid lakhirajdar and also by reason of her having, together with her predecessor, held the land for upwards of 12 years adversely to the landlord.2. The Munsif gave the plaintiff a decree, on the ground that she had acquired a lakhiraj title by more than 12 years' adverse possession.3. The District Judge, on appeal, has set aside this decree, and dismissed the suit on the ground that no adverse title could be pleaded against defendant No. 1, who had purchased the property at a patni sale held within 12 years from the date of the institution of the suit and who is entitled to it free of all incumbrances created subsequent to the original grant of the patni estate.4. The decision of the Full Bench in the case of Womesh Chunder Goopto v. Raj Narain Roy 10 W.R. 15 is to that effect an...
Tag this Judgment!Court : Kolkata
Reported in : (1892)ILR19Cal372
W. Comer Petheram, Kt., C.J.1. My answer to the question referred to us by the Judge of the Small Cause Court is, that the plaintiffs are debarred from bringing these two suits against the defendants by Section 43 of the Code of Civil Procedure. I frame my answer to the question in this form, because, as was said by Mr. Justice Wilson in the case of Anderson, Wright & Co. v. Kalagarla Surjinarain I.L.R. 12 Cal. 339, I prefer to guard myself, against (repressing any opinion wider than is necessary for the purposes of this case, and as was done by that learned Judge in that case, I found my judgment solely on the construction which I place on Section 43 of the Code. I agree with him in thinking that the words 'the whole of the claim which the plaintiff is entitled to make in respect of the cause of action' in that section in such a case as the present means the entire claim which the plaintiff has against the defendant at the time the action is brought, in respect of any failure or failu...
Tag this Judgment!Court : Kolkata
Reported in : (1892)ILR19Cal544
W. Comer Petheram, Kt., C.J.1. The question which we have to determine is whether a person who has for a time exercised the exclusive right of fishing in waters which cover land which does not belong to him, and who is forcibly prevented from fishing in such waters, can maintain an action for such prevention under Section 9 of the Specific Relief Act (I of 1877) without proving his own title to the exclusive right which he claims.2. I agree that a right of fishing in waters which cover land which belongs to another is within the definition of immoveable property in Section 2, Sub-section 5 of the General Clauses Act (I of 1868), and would therefore be included within Section 9 of the Specific Relief Act if there were not, to use the words of Section 2 of the General Clauses Act, 'something repugnant in the subject or context.' I am of opinion that the whole of Section 9 is repugnant to the idea that immoveable property in that section includes an incorporeal right such as a right of fi...
Tag this Judgment!Court : Kolkata
Reported in : (1893)ILR20Cal254
O'Kinealy and Banerjee, JJ.1. These appeals were heard together, and our decision in any one of them will govern the others. They have been laid for the recovery of road cess and public works cess, and are each of small value. The question raised for our decision is whether an appeal lies to this Court.2. It is not denied that if the ordinary procedure for realizing rents by suit is followed, as directed by the Acts under which cesses are levied, no appeal would lie; but it is said that because the definition of 'rent' in the Rent Act also includes cesses for certain purposes, suits for cesses should not be treated as suits for rent, and that a second appeal lies.3. No doubt the Act declares that in Sections 53 to 68, both inclusive, and in Sections 72 to 75, both inclusive, 'rent' includes cesses, but we think that these are enabling provisions passed to extend the meaning of 'rent,' and it in no way interferes with the law refusing a right of appeal in suits below one hundred rupees ...
Tag this Judgment!Court : Kolkata
Reported in : (1892)ILR19Cal634
Ghose and Rampini, JJ.1. Both the Courts below have held, following certain decisions of this Court, that the defendant is entitled to the property in preference to the plaintiff, and they have accordingly dismissed the suit. The present appeal is by the plaintiff; and it has been contended by the learned vakil for the appellant that upon a correct reading of the Hindu law as it obtains in Bengal, the plaintiff is entitled to share equally with the defendant the property left by Panchu Jana.2. The argument on behalf of the plaintiff, if we have understood it correctly is that, according to the Bengal school of law, as expounded by Jimutavahana, re-union can take place only between a person and his father, brother, or paternal uncle, and, therefore, although there was re-union between Haru Jana and Nakoari Jana, still Mangal Jana and Panchu Jana could not be regarded as re-united parceners within the meaning of the Hindu law, so as to entitle Mangal Jana, upon Saki Dassi's death, to the...
Tag this Judgment!Court : Kolkata
Reported in : (1892)ILR19Cal485
W. Comer Petheram, Kt., C.J.1. The only question which has been argued before us is, whether an order made by the Munsif under Section 84 of the Bengal Tenancy Act authorizing the zemindar to acquire a certain portion of the raiyat's holding and fixing a price at which he is to acquire it is appealable under the law.2. The point has already been decided in this Court in the case of Goghun Mollah v. Rameshur Narain Mahta I.L.R. 18 Cal. 271 and it would be sufficient for us to say that we agree with the mode in which that case was decided. But it may be as well to add that, in our opinion, it is clear that such an order as this is not a decree within the meaning of the definition in Section 2 of the Code of Civil Procedure, because, reading the whole of that section, it is clear, we think, that a decree can only be in a suit, and that this proceeding is not a suit. It not being a decree within that definition, it must be an order, and it remains then only to be seen whether any appeal is...
Tag this Judgment!Court : Kolkata
Reported in : (1892)ILR19Cal482
Beverley, J.1. This is an appeal against an order in respect of the execution of a decree which was made in August 1885. It appears that an application to execute that decree was made on the 13th July 1886. That application for some cause or other was struck off. The decree-holder then died, and on the 26th November 1889 his legal representative made a second application, which appears to have been struck off or rejected on the 15th February 1890. The present application was filed in the following month, March 1890.2. The first Court held that, inasmuch as the second application of the 26th November 1889 was made by the legal representative of the deceased decree-holder, without the production of any certificate under Act VII of 1889 or other Act for the time being in force, the application was not in accordance with law, and that therefore the present application of March 1890, having been made more than three years from the first application of the 13th July 1886, is barred by limita...
Tag this Judgment!Court : Kolkata
Reported in : (1892)ILR19Cal780
Prinsep and Banerjee, JJ.1. This suit has been dismissed by both the Lower Courts as barred by limitation, because the plaint was not properly stamped within the period prescribed by the law of limitation for presenting a suit of this description.2. The Lower Courts have followed the judgment of a Full Bench of the Allahabad High Court in the case of Balkaran Rai v. Gobind Nath Tiwari I.L.R. 12 All. 129. That case, we may observe, is not on all fours with this case, as the document concerned was a memorandum of appeal presented to the High Court itself, whereas in the case before us it is a plaint. However, several of the grounds upon which that case was decided are applicable to the present case. We may, at the outset, refer to the case of Chennappa v. Raghunatha I.L.R. 15 Mad. 29 in which disapproval is expressed of that decision of the Allahabad Court, and a contrary rule of practice is laid down. We may also observe that, although the practice of this Court has varied, it has not b...
Tag this Judgment!Court : Kolkata
Reported in : (1892)ILR19Cal783
Prinsep and Banerjee, JJ.1. The plaintiffs claimed to be the proprietors of one-third share of a certain mahal, but not the recorded proprietors on the Collector's register. They alleged that, in execution of a decree under the certificate procedure issued by the Collector against their vendor and donor, their share had been sold without any notice to them and in fraud of their title in consequence of the misconduct of defendant No. 1.2. The suit has been dismissed by the Lower Appellate Court on the ground that the cesses were due from the particular property, and were properly realized by a decree, under the particular procedure known as the certificate procedure, against the recorded proprietor.3. The only point laid before us in this appeal is whether such a sale would affect the rights of the plaintiffs who are admittedly not the recorded proprietors of this share. It is contended on one hand that cesses are only personal debts, and on the other, that they constitute a charge on t...
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