Kolkata Court June 1897 Judgments
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Peary Mohun Mookerjee Vs. Ambica Churn Bandopadbya, Chairman of the Mu ...
Court: Kolkata
Decided on: Jun-30-1897
Reported in: (1897)ILR24Cal900
Maclean, C.J.1. I have had the advantage of reading Mr. Justice Banerjee's judgment in this case, and I concur in the conclusion at which he arrives. He has gone so fully into the matter that I purpose to state very shortly the grounds upon which I consider this rule ought to be discharged. The only question we have to decide is, whether the plea of res judicata ought to prevail. Admittedly the present plaintiff, some short time ago, brought a suit against the present defendant claiming identically the same relief as is sought by the present suit, that is to say, damages against the defendant for not removing certain offensive matter from certain property belonging to the plaintiff. This suit failed upon two grounds: (1) want of notice under Section 363 of the Bengal Municipal Act: (2) that upon the merits the defendants were not liable. The merits admittedly were gone into in that suit, and the suit was decided against the present plaintiff. The present suit is for the non-removal of ...
issur Chandra Dutt Vs. Gopal Chandra Das
Court: Kolkata
Decided on: Jun-30-1897
Reported in: (1898)ILR25Cal98
Macpherson and Ameer Ali, JJ.1. The appellant brought this suit, to eject the defendant as a trespasser. The defendant- contended that the plaintiff had no right to bring the suit, as he is a mere benamidar of Guru Churn Dutt, under whom and others the defendant admits that he is a tenant. Both the Courts have found that the appellant is a mere benamidar of Guru Churn Dutt, and that he cannot maintain the suit. This is quite in accordance with the decision of this Court in Hari Gobindo Adhikari v. Akhoy Coomar Mozoomdar (1889) I.L.R. 16 Cal. 364 in which it was held that a person who was a benamidar for one of the defendants could not maintain a suit for a declaration of his right to, and for possession of, immoveable property; such a person cannot, it seems to us, any the more maintain a suit for ejectment. He has neither title nor possession. Our attention has been called to a recent decision of the Allahabad High Court in the case of Nand Kishore Lai v. Ahmad Ala (1896) I.L.R. 18 Al...
ishan Chunder Hazra and ors. Vs. Rameswar Mondol and ors.
Court: Kolkata
Decided on: Jun-29-1897
Reported in: (1897)ILR24Cal831
O'Kinealy and Hill, JJ.1. In this case the plaintiffs sued on the ground that they were reversioners goes on the death of one Brahmamayi Debi for the possession of land, in other (sic)feree for value in ejectment. The cause of action, namely, what the plaintiff's were feror to, conv to prove in order to succeed, was that they were the reversioners concealed, ammamayi in regard to this property, and that the claim was not barred treated as a station. The defendants then could raise any answer they thought fit to though sectic of the claim; but the cause of action was one. Even in England, in an the option of in ejectment, all the parties in possession are joined. We think, therefore, and accepts tie decision of the Court below is wrong; and, setting it aside, we remand knowledge (sic)se to the lower Court for trial on its merits. Costs to abide the result....
Mokbul HossaIn Vs. Ameer Sheikh
Court: Kolkata
Decided on: Jun-29-1897
Reported in: (1898)ILR25Cal131
Maclean, C.J.1. I think the appeal fails on both grounds. The first ground is, that, under Section 89 of the Bengal Tenancy Act, the plaintiff could not be ejected except in execution of a decree. But this tenure admittedly is a service tenure, and looking at Section 181, I think upon the construction of that section service tenures are excepted from the operation of Section 89. If the section does not mean that, I feel a difficulty in appreciating what it does mean. It has been found as a fact in this case that liability to dismissal at the will of the zemindar was incidental to the service tenure in question.2. The second point is, that the plaintiff can only be ejected after reasonable notice.3. That point was not raised in the Court of First Instance, but it was raised for the first time in the Lower Appellate Court. There is nothing, however, in the findings of fact in the Court below which enables us to say whether or not there was reasonable notice. On both points the appeal fai...
Dwarka Nath Dinda and ors. Vs. Grish Chunder Sasmal
Court: Kolkata
Decided on: Jun-28-1897
Reported in: (1897)ILR24Cal640
O'Kinealy and Hill, JJ.1. This is a suit for money due on a simple mortgage bond dated the 12th Jaista 1288; and the only point in the appeal is in regard to the defendant No. 7, who became the mortgagee of the equity of redemption after the plaintiffs' mortgage. This defendant was not originally on the record, but was, in the course of the suit, added by the first Court under Section 32 of the Code.2. It has been held in the case of Oriental Bank Corporation v. Charriol I.L.R. 12 Cal. 642 that where a Court, acting on information brought to its notice, adds a party who, it thinks, is necessary for the disposal of the suit, no question of limitation arises.3. The defendant No. 7 in this case was, under the Transfer of Property Act, a party necessary for the final disposal of the suit. We, therefore, think that no question of limitation arises; and the mortgage in suit must be enforced against the defendant No. 7, as well as the other defendants, except the defendant No. 6.4. The appeal...
Sachitananda Mohapatra Vs. Baloram GoraIn and ors.
Court: Kolkata
Decided on: Jun-28-1897
Reported in: (1897)ILR24Cal644
O'Kinealy and Hill, JJ.1. This is a suit for foreclosure and for possession of the land mortgaged. The answer of the defendants was that, although the mortgage bond was executed in the name of the plaintiff, the money was the money of Bissonath Misser, the grandfather of the plaintiff. They further said that Baloram Gorain, who executed the mortgage, had not received the full amount for which the mortgage was executed. Both the lower Courts have held that Bissonath Misser was the beneficial owner, and not the plaintiff in whose name the mortgage is said to have been executed.2. In a case, very similar to this, the same point was brought for decision to this Court; and it was decided that the contract could be enforced by the parties who had entered into it, and that the suit should not be dismissed because the beneficial owner was not added as a party.3. Whether Baloram Gorain got the money from Bissonath Misser or not, the transfer of the mortgaged property was by the deed made to the...
Maharamunnessa Bibi and ors. Vs. Safiur Rahman
Court: Kolkata
Decided on: Jun-28-1897
Reported in: (1897)ILR24Cal832
O'Kinealy and Hill, JJ.1. The defendant No. 1, the appellant, made a joint contract with se(sic) persons that, 'on receipt of Rs. 500 as profit in addition to the price (sic) being him for the property,' he would execute separate documents in favour of each person.2. Some of the parties who entered into that contract with the defendant No. 1 claim specific performance of the contract, making the others, who refused to have the contract performed, defendants.3. The question, therefore, is, can some of the parties to a single contract enforce specific performance against their adversary and the other persons who are defendants.4. We think, on principle, that they cannot, and that in a suit for the performance of a single contract the parties on each side must be marshalled as plaintiffs and defendants. We therefore decree the appeal, and dismiss the suit with costs in all the Courts....
Banku Behari Pal Vs. Chinsurah Municipality
Court: Kolkata
Decided on: Jun-28-1897
Reported in: (1898)ILR25Cal160
Maclean, C.J.1. On the 17th December 1892, the Vice-Chairman of the Hooghly and Chinsurah Municipality wrote and sent to the plaintiff in this suit the following notice:Sir,---By a resolution of the Commissioners at a general meeting held on the 9th September last your prayer to allow the sajah to be made was disallowed. I therefore request that you will be good enough to remove the iron brackets put up against your house within eight days from the date of receipt of this letter, otherwise necessary steps should he taken for their removal.2. I understand and I have specially asked the question that no other notice was sent by the defendants to the plaintiff.3. The first question which we have to decide is whether, having regard to the terms of Section 204 of Bengal Act III of 1884, the Municipality were justified, under the circumstances of this case, in giving a notice, which admittedly the above document purported to be, under that Section. The Municipality admit that they considered...
Queen-empress Vs. Tomijuddi and ors.
Court: Kolkata
Decided on: Jun-26-1897
Reported in: (1897)ILR24Cal757
Ghose and Wilkins, JJ.1. We think that in these two cases the Magistrate should not have passed his ex parte orders for costs under Section 148 of the Criminal Procedure Code, when his original orders under Section 145 contained no directions at all as to costs, and no application for costs was made to him until after the expiration of over 3 months from the date of such orders. Proceedings under these sections of the Procedure Code are quasi-civil in their nature. The intention of Section 148 would seem to he that an order for, and the assessment of, costs should be made at the time in the presence of the parties. This being so, such costs should not be ordered and assessed by the Magistrate after a long interval and without allowing all the parties affected an opportunity to appear and show cause.We set aside the orders of the Magistrate in both cases dated 20th January 1897....
In Re: Beer Nursing Dutt
Court: Kolkata
Decided on: Jun-24-1897
Reported in: (1897)ILR24Cal891
Jenkins, J.1. This application is by way of objection to the taxation of a bill of costs on the ground that the costs of a second Counsel should not have been allowed. The case in which two Counsel were employed was in certain Insolvency proceedings and, as I learn from the statement of Counsel, the. client by whom these Counsel were employed was charged with collusion amounting to fraud.2. In the exercise of his discretion the Taxing Master considered that the case was one in which it was proper to allow the costs of a second Counsel. I have been unable to see in the argument addressed to me anything to lead me to suppose that this discretion was wrongly exercised.3. I therefore hold that the objection was ill-founded, and the exceptions will be disallowed with costs.4. Attorney for Koosom Koomary Dassee: Messrs. Dignam & Co.5. Attorney for the Creditors: Babu G. C. Dhur.C. E. G....
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