Kolkata Court November 1908 Judgments
Surendra Nath Sen and anr. Vs. Dinabandhu Naik
Court: Kolkata
Decided on: Nov-17-1908
Reported in: 4Ind.Cas.535
1. On the 5th April 1906, this Court came to the conclusion that the plaintiffs were raiyats and not tenure holders and the defendant was an under-raiyat. The statutory right to continue in possession which is conferred by the Bengal Tenancy Act on occupancy raiyats cannot be availed of by the defendant. The rights and liabilities of the parties must, therefore, be governed by Sections 48 and 49 of the Bengal Tenancy Act.2. There was a written lease for nine years apparently with reference to the law as laid down in Section 85 of the Bengal Tenancy Act. By that lease, it was agreed that the tenancy of the defendant would expire at the end of nine years. The present suit was instituted after the expiry of those nine years and the only defence that the defendant could raise was that under a clause in the lease, he might apply for re-settlement and the plaintiff would be bound to grant him a re-settlement without any bonus.3. No defence could be raised on the ground that the defendant had...
Tag this Judgment!Mathura Nath Roy Chaudhuri Vs. Basanta Kumar Chakravarti
Court: Kolkata
Decided on: Nov-13-1908
Reported in: (1909)ILR36Cal510
Mitra and Chitty, JJ.1. A preliminary objection has been taken to the hearing of this appeal on the ground that Section 588, Code of Civil Procedure, does not apply to proceedings under Section 106 of the Bengal Tenancy Act. Section 109(A), Sub-section 3, confines the power of the High Court to the hearing of second appeals and not appeals from orders, either under Section 558 or Section 560. In Mothur Chandra Majumdar v. Tara Sunkar Ghose (1903) 7 C.W.N. 440 this Court declined to allow an appeal from an order under Section 562, Code of Civil Procedure, made by a special Judge exercising the powers given to him by Section 109(A). The same principle also applies to this case. We accordingly dismiss this appeal with costs....
Tag this Judgment!Hari Badani Dasi and anr. Vs. Gobinda Chandra Das and ors.
Court: Kolkata
Decided on: Nov-13-1908
Reported in: 4Ind.Cas.118
1. On the facts appearing on the record, it appears to us that the lower Courts were wrong in holding that the present application for execution was barred by limitation. The decree was passed on the 23rd May 1898. Applications for execution were made several times and the final application was made on the 16th April 1904. That application was made by the executors of the original decree-holder, though probate had not then been obtained. Either for this defect or for some other defect which is not quite clear from the record, the application was rejected. But it was, in form, a proper application and at all events, it was a step taken in aid of execution. The mere fact that one of the applicants had not obtained probate would not justify a Court in rejecting the application. As an authority for this proposition, we may refer to the case of Hafizuddin Chowdhry v. Abdool Aziz 20 G. 755.2. We are of opinion that the present application which was presented on the 15th April 1907 was not ba...
Tag this Judgment!Chaturbhuj Marwari and ors. Vs. A.W. Walker
Court: Kolkata
Decided on: Nov-13-1908
Reported in: 4Ind.Cas.510
1. In this case it appears that an application was put in to the Deputy Commissioner of Singhbhum for execution of a. decree. The Deputy Commissioner's Office appears to have registered this application and then forwarded it by post to the Subordinate Judge of that district who was at that time sitting in Purulia. When the case came before the Subordinate Judge at Purulia, notice was issued under Section 248, C.P.C., to the judgment-debtor. This action apparently was all that was desired by the decree-holders. The judgment-debtor appeared and put in an objection in which he pleaded, among other matters, that the Subordinate Judge had no jurisdiction to. proceed with the execution. This was rejected by the Subordinate Judge and he passed the following order: 'Judgment-debtor's objection disallowed. No further steps. Case dismissed for want of prosecution.'2. Against this order the judgment-debtor thought fit to appeal to the Judicial Commissioner of Chota Nagpur; and the Judicial Commis...
Tag this Judgment!Mathura Nath Roy Choudhuri and ors. Vs. Basanta Kumar Chakravarti
Court: Kolkata
Decided on: Nov-13-1908
Reported in: 2Ind.Cas.572
1. A preliminary objection has been taken to the hearing of this appeal on the ground that Section 588, Code of Civil Procedure, does not apply to proceedings under Section 106 of the Bengal Tenancy Act. Section 109A, Sub-section 3, confines the power of the High Court to the hearing of second appeals and not appeals from orders, either under Section 558 or Section 560. In Mothur Chandra Majumdar v. Tara Sankar Ghose 7 C.W.N. 440 this Court declined to allow an appeal from an order under Section 562, Code of Civil Procedure, made by a special Judge exercising the powers given to him by Section 109A. The same principle also applies to this case. We, accordingly, dismiss this appeal with costs....
Tag this Judgment!Azibulla Sarcar Vs. Udoy Sonthal and ors.
Court: Kolkata
Decided on: Nov-12-1908
Reported in: 1Ind.Cas.287
1. This is a rule calling upon the District Magistrate of Rungpur to show cause why the order directing persecution of the Petitioner under Section 193, I.P.C., should not be set aside on the ground that the Magistrate does not appeal to have exercised a wise discretion in directing the prosecution for statements made with reference to a case, which seems to have taken place very many years, ago and further that the evidence does not appear to have been relevant to the case in which the Petitioner had given his evidence. 2. We have heard the learned Vakil in support of the rule and have listened to the learned Vakil who appears to have obtained the sanction in the lower Court and we think that the discretion exercised by the second class Deputy Magistrate, who twice, on consideration of the circumstances, under which the statement was made, refused to grant any sanction for prosecution, was a wise discretion and we find that the order of the District Magistrate, reversing the order of ...
Tag this Judgment!Ambica Charan Chakravarti and ors. Vs. Joy Chandra Ghosh and ors.
Court: Kolkata
Decided on: Nov-11-1908
Reported in: 4Ind.Cas.470
1. This suit is brought for rent in respect of a certain holding. The plaintiffs sue for rent at the rate of Rs. 20 and in respect of their claim they refer to the settlement of the rent which took place in the year 1900. The defendant meets this claim by alleging that the rent is only Rs. 3-2 which rent it appears was fixed by a pottah, dated 1832. It appears that since that date the land has been purchased by the Government at a revenue sale after which it was settled with the plaintiffs, and either before or after settlement with them the record-of-rights was prepared. The settlement of rent was made under Part II of Chap. X of the Bengal Tenancy Act.2. The plaintiffs contend that the rent roll having been duly prepared and incorporated with the record-of-rights is conclusive as to the amount of rent by force of Section 104J and the rent roll shows the rent to be Rs. 20. On behalf of the defendant it is argued that the effect of Section 104J is modified by Section 103B. This appears...
Tag this Judgment!Luchmi Pershad and anr. Vs. Ekdeshwar Singh
Court: Kolkata
Decided on: Nov-11-1908
Reported in: 4Ind.Cas.577
1. This appeal arises out of a suit instituted by the plaintiff-respondent for a declaration that the defendants hold certain lands at certain rentals and, also for a declaration that the rentals entered in the record-of-rights in respect of these lands are inoperative. The plaintiff, also, sued for recovery of rents and cesses.2. The lower appellate Court differed from the conclusions arrived at by the Court of first instance, and decreed the plaintiff's suit accepting the qabuliyat executed by the defendant on the 11th December 1897.3. Two contentions have been raised before us, first, that the lower appellate Court omitted to consider the presumption of correctness of the entries in the record-of-rights, referred to in Section 103B of the Bengal Tenancy Act; and, secondly, that onus was on the plaintiff landlord and not on the defendant tenants to prove that the qabuliyat in question did not contravene the provisions of Section 29(b) of the Act. In our opinion, here is no substance ...
Tag this Judgment!Ful Chand Vs. Nazab Ali Chowdhry
Court: Kolkata
Decided on: Nov-10-1908
Reported in: (1909)ILR36Cal184
Stephen and Doss, JJ.1. This is a suit in which a woman sues the heirs of a deceased Mahomedan for the deferred portion of the moharana provided for by a kabinnaah. The defence to the suit was that the woman was divorced in 1304 B.S. or 1897, and that the cause of action accrued at the time of her divorce and that she is therefore Statute-barred under Article 104 of the Limitation Act. To this it is answered that, admitting the facts found by the lower Appellate Court, still no divorce took place. The divorce was by talak being pronounced three times, but it was pronounced in the absence of the wife though in the presence of various witnesses including the wife's father.2. The first question, which w.e have to decide, is whether the absence of the wife makes the pronouncement of the talak void and inefficacious. In our opinion it does not. The point is dealt with in the book of Mr. Ameer Ali in Section 3 of Chapter XII, where he says: 'It is not necessary for the husband himself to pro...
Tag this Judgment!Jameson and Co. Vs. Scott
Court: Kolkata
Decided on: Nov-10-1908
Reported in: (1909)ILR36Cal291,1Ind.Cas.972
Harington, J.1. This is an action by the drawer of a bill of-exchange against the acceptor. It is admitted that the bill was accepted by the defendant and that it was dishonoured at maturity. The bill was drawn to the order of the plaintiff and was indorsed by the plaintiff to the order of Cox & Co. On the back of the bill there appears a further indorsement purporting to be made by Cox & Co. in favour of the Allahabad Bank, but as to that indorsement no evidence of any sort has been given and so far as the case stands the drawer indorsed the bill to the order of Cox & Co. It has also been proved that Cox & Co. discounted the bill and credited the plaintiff with the proceeds, and when the bill was dishonoured Cox & Co. debited the drawers' account with the amount of the bill. It has also been proved that after dishonour and after the account of the drawer had been debited with the amount of the bill, the bill was returned to the drawer by Cox & Co. Under these circumstances the defenda...
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