Kolkata Court May 1909 Judgments
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Janki and ors. Vs. Emperor
Court: Kolkata
Decided on: May-12-1909
Reported in: 5Ind.Cas.769
1. This is an appeal by fifteen accused who were convicted on a trial held by the Assistant Sessions Judge of Patna, sitting with a jury, and it is sought to support this appeal on the grounds, that there has been a misjoinder of charges which vitiates the whole proceedings, that there has been a misdirection to the jury resting on mis-reception of evidence; and lastly that, so far as two of the accused are concerned, Nos. 14 and 15, there has been no proper direction as to the elements necessary to constitute an offence under Section 412 of the Indian Penal Code. Notwithstanding the very ingenious arguments that have been addressed to us, we hold that the appeal must fail. This is a case in which fifteen accused are charged under Section 895 of the Indian Penal Code. Three of these accused are also charged under Sections 411 and 412, on the strength of an incident which is part of the evidence against them on the charge under Section 395; and it would be an undue extension of the auth...
Bishambar Roy Vs. Lakhatullah Sheikh and ors.
Court: Kolkata
Decided on: May-12-1909
Reported in: 2Ind.Cas.160
Richardson, J.1. The appeal arises out of a suit brought by the plaintiff, the appellant before me, for the recovery from the defendants of certain arrears of rent for the years I, 1308 to 1311, viz., the arrears due for those 5 years in respect of the plaintiff's half share of the patni in which the land is comprised. It appears that the share-holders of the patni have been realising their rent separately.2. The question at issue is the amount of rent payable by the defendants to the plaintiff.3. The plaintiff founds his suit upon a registered kabuliat bearing date the year 1279, claiming rent at the rate fixed by that document.4. The lower Courts have given him a decree for arrears of rent at the lower rate contended for by the raiyats, which appears to be the rate at which they have actually been paying rent for some considerable time. That fact according to the view which has been taken is a sufficient answer to the claim founded upon the kabuliat, though the lower rate does not re...
Rai Charan Shar Mazumdar Vs. the Administrator General of Bengal
Court: Kolkata
Decided on: May-11-1909
Reported in: (1909)ILR36Cal856
Harington, J.1. I have read the judgment my learned brother is about to deliver and I agree that the decrees of the lower Court should be affirmed subject to the' modification which he proposes.2. The principal question in the case is whether, when land has been lost to a holding by diluvion and subsequently restored by alluvion and then settled with persons other than the tenants of the holding, the tenant is entitled to a suspension of the entire rent on the ground that the landlord has evicted him from a portion of the demised premises.3. The question whether an eviction by the landlord of the tenant from a part of the demised premises justifies the tenant in refusing to pay rent for the remainder of the holding he continues to occupy is one on which it is unnecessary for me to express an opinion, for in the present case the tenant is clearly not entitled to a suspension of the rent, because he has not been dispossessed by any tortious act on the part of the landlord, but by the act...
Abdur Rahman Mullick Vs. Khorban Mullick Matwali and ors.
Court: Kolkata
Decided on: May-11-1909
Reported in: 2Ind.Cas.156
1. This appeal arises out of an application under Sections 254 and 311 Civil Procedure Code 1882 to set aside a sale. It appears that a previous application of the same nature had been made and had been dismissed for default. The learned Munsif held that, no application having been made under Sections 102 and 103, Civil Procedure Code to set aside that order of dismissal, the applicant was precluded from making a fresh application of the same nature. The learned District Judge has taken a contrary view and the only question is which view is correct. We think, that on a plain reading of Section 647, Civil Procedure Code, the view which the learned Munsif took is the correct view. That section provides that the procedure prescribed in the Code should be followed, so far as it can be made applicable, in all proceedings in any Court of Civil jurisdiction other than suits and appeals; and the explanation which was added in 1893 provided that that section should not apply to applications for...
Rai Charan Sar Mazumdar and anr. Vs. Administrator-general of Bengal
Court: Kolkata
Decided on: May-11-1909
Reported in: 2Ind.Cas.169
Harington, A.C.J.1. I have read the judgment my learned brother is about to deliver and I agree that the decrees of the lower Court should be affirmed subject to the modification which he proposes.2. The principal question in the case is whether when land has been lost to a holding by diluvion and subsequently restored by alluvion, and then settled with persons other than the tenants of the holding, the tenant is entitled to a suspension of the entire rent on the ground that the landlord has evicted him from a portion of the demised premises.3. The question whether an eviction by the landlord of the tenant from a part of the demised premises justifies the tenant in refusing to pay rent for the remainder of the holding ho continues to occupy, is one on which, it is unnecessary for me to express an opinion, for in the present case the tenant is clearly not entitled to a suspension of the rent because he has not been dispossessed by any tortious act on the part of the landlord; but by the...
Kadir Bux Baipari and anr. Vs. Abdul Ali Fakir
Court: Kolkata
Decided on: May-10-1909
Reported in: 2Ind.Cas.67
Sharfuddin, J.1. This is an appeal from the order of the Second Subordinate Judge of Mymensingh, dated the 24th of March 1908.2. It appear that Kadir Baipari and others applied to the lower Court to set aside an ex parte order absolute for foreclosure on the grounds, (1) that no notice had been given to them, before the order absolute was made; (2) that the opposite party had been partly paid off by a set off; (3) that the opposite party had granted an extension of the period of grace by one month for the payment of the balance, and instead of waiting for the expiry of the extended period, had applied for and obtained an order absolute within the said period.3. The lower Court has held on the authority of Bibi Tasliman v. Harihar Mahto 32 C. 253 that where an order absolute is made without notice it can be set aside upon a proper case being made out and that such a case has been set up in the second and third grounds. The lower Court has, however, decided that this case has not been ma...
Deb NaraIn Dutt Vs. Baidta Nath Modak Napit and ors.
Court: Kolkata
Decided on: May-10-1909
Reported in: 2Ind.Cas.148
1. The plaintiff in this suit seeks to establish his title in and to obtain possession of an eight anna share in certain lands described in the schedule to the plaint. The plaintiff purchased the 8 anna maliki right on this land in 1268 B.S. The land in suit was then in the possession of one Kasi Nath Napit and he executed a kabuliat in favour of the plaintiff in Phalgun 1268. After the death of Kasinath Jadu Napit his nephew succeeded to his rights in this land and on 17th of Baisak 1296 he sold the land to the defendant. The plaintiff now seeks to eject the defendant from the land on the ground that Jadu Napit had no transferable interest in the same and that the defendant is a trespasser.2. The Minis if awarded the plaintiff a decree, granting him joint possession with the defendant, but on appeal this decision was reversed and the suit dismissed and the plaintiff, therefore, has lodged this second appeal. It is admitted before us that Kasi Nath was a raiyat of the village and the l...
Shyama Churn Ghosh Vs. Mahomed Ali and ors.
Court: Kolkata
Decided on: May-07-1909
Reported in: 3Ind.Cas.466
1. The plaintiff in this case sued for recovery of certain land under Section 9 of the Specific Relief Act from which the defendants had, as he said, dispossessed him. The Munsif found that most of the land was in the possession of his tenants and that, therefore, he was not entitled to sue under Section 9. Accordingly he dismissed the suit for that land following Sonaton Shome v. Sheikh Helim 6 C.W.N. 616. The plaintiff then obtained a Rule from this Court to show cause why the dismissal of the claim for the lands in possession of the tenants should not beset aside.2. The petitioner relies on Bindhubashini v. Jahnavi 1 Ind. Cas. 150 : 13 C.W.N. 303. It seems to us that that case is in direct conflict with Sonaton Shome v. Shiekh Helim 6 C.W.N. 616. An attempt has been made to distinguish the cases, but, in our opinion, the propositions they lay down are not reconcilable.3. If we were constrained to choose between them, we should certainly prefer to follow Bindhubashini v. Jahnavi 1 In...
Emperor Vs. Nakul Kabiraj
Court: Kolkata
Decided on: May-07-1909
Reported in: 4Ind.Cas.543
1. This is an appeal from a conviction and sentence based upon the unanimous verdict of a jury by whom the accused has been found guilty of the offence of kidnapping under Section 363 of the Indian Penal Code. To succeed on this appeal, therefore, it is necessary for the appellant to substantiate that there is an error of law. For that purpose it is contended before us that there has been a misdirection by the Judge to the jury, in three particulars. First, it is said that the comment on the husband's attitude amounted to a misdirection; then that the charge as to guardianship was incorrect; and, thirdly that the Judge erred in dealing with the age of the accused. Though we think there is much that calls for comment on all three points, still, in our opinion, there was misdirection only in regard to the question of guardianship. The girl in this case was married, and the theory of the prosecution is not that she was taken out of the keeping of her husband who was her lawful guardian bu...
Dharmapal and anr. Vs. Mohant Krista Dayal
Court: Kolkata
Decided on: May-06-1909
Reported in: 4Ind.Cas.746
Mookerjee, J.1. The Court is invited in this Rule to stay execution of a decree made against the petitioners in the Court of the Subordinate Judge of Gaya on the 19th January 1909. The plaintiff opposite party commenced an action for declaration of right to and for possession of a house ordinarily known as the Burmese Rest-house near the Budh-Gaya temple. The defendants, now petitioners before this Court, resisted the claim on various grounds which are not material for the purposes of this Rule. After a protracted hearing the Subordinate Judge made a decree which entitled the plaintiff to recover possession of the house by ejectment of the defendants. The decree further directed the defendants to remove the images of Budha from the Rest-house and to vacate the house within one month from the date of the judgment. The judgment was delivered on the 19th January 1909. The decree, however, was not drawn up till the 5th February following. On the 15th February the defendants applied to the ...
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