Kolkata Court August 1909 Judgments
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Saratmani Debi Vs. Bata Krishna Banerjee
Court: Kolkata
Decided on: Aug-10-1909
Reported in: 4Ind.Cas.459
1. We are invited to grant a certificate to the appellant that as regards the value of the subject-matter and the nature of the questions involved in this appeal, the requirements of Section 110 of the Code of 1908 are satisfied. The respondent commenced the suit out of which the present proceeding arises, in the Court of the Subordinate Judge of Hooghly and valued the relief claimed at Rs. 1,500. The defendant took exception to the valuation of the suit and further contended that the suit was not maintainable in view of the provisions of Section 244 of the Code of 1882. The Subordinate Judge dismissed the suit on the ground that it was barred by Section 244, and in support of this view relied upon the case of Jogemaya Dassi v. Thackomoni Dassi 24 C.473. The plaintiff then appealed to the District Judge. The defendant took a preliminary objection that the appeal was incompetent and could be entertained only by the High Court. The objection was overruled and the appeal heard, with the r...
Sankar Nath Pandit Vs. Madan Mohan Das
Court: Kolkata
Decided on: Aug-10-1909
Reported in: 5Ind.Cas.298
1. We are invited in this Rule to set aside an order made by the Court below under Order 21 Rule 100 of the Code of 1908. The circumstances under which the order in question was made are not disputed and may be briefly narrated. On the 25th March 1908 one Dinanath Das obtained an ex parte decree against Kali Prosad Das for a sum of over Rs. 6,000. On the 26th February 1908 during the pendency of the suit, he had obtained an order for attachment of the immovable properties of the defendant and on the 15th April 1908 he applied for execution of his decree. The properties were reattached on the 1st May following. Before execution could proceed further, the judgment-debtor applied under Section 108 of the Code of 1882 to set aside the ex parte decree. This application was refused on the 27th July. Meanwhile on the 23rd June 1908 the infant son of the judgment-debtor, Madan Mohan Das, through his mother and next friend, Saraswati Dassi, preferred a claim to the attached property on the alle...
Gangaram Patna Vs. Sasi Sekhar Chackravarty
Court: Kolkata
Decided on: Aug-09-1909
Reported in: 3Ind.Cas.100
Caspersz, J.1. It has been found that defendant No. 1 is an under-raiyat and that the term of his written lease expired in Magh 1804. The plaintiff's suit is to obtain khas possession of the land demised by ejecting defendant No. 1. -The Munsif dismissed the suit, but the lower appellate Court gave the plaintiff a decree.2. The two contentions in second appeal are those, first, that defendant No. 1 became a tenant holding over under an arrangement with the plaintiff, and that, therefore, a notice to quit was necessary as a condition precedent to his ejectment, and secondly, that the plaintiff should have proceeded under Chapter X of the Bengal Tenancy Act, and not have had recourse to the ordinary Civil Court.3. It appears that defendant No. 1 was recorded as a settled raiyat in the settlement proceedings, and he relies on that entry in his favour. The plaintiff sets forth in his plaint how the defendant came to remain in possession of the land -after the expiration of the term of his ...
Bishnu Charawn Modak Vs. Mohesh Chandra Mohanti and ors.
Court: Kolkata
Decided on: Aug-09-1909
Reported in: 3Ind.Cas.87
Caspersz, J.1. This is an appeal by the defendant tenant against whom the plaintiffs brought an action to have it declared that certain lands covered by a kabuliat, dated the 1st Sraban 1299, were liable to assessment and to recover the assessed rent and damages for the years 1303 to 1310 B.S. Both the lower Courts have decided in favour of the plaintiffs. The only point taken in second appeal is as to the application of the rule of res judicata. The lower appellate Court says that the objection as to res judicata was not pressed on behalf of the defendant, and that it had been rightly overruled by the Court of first instance. In a former suit, No. 12 of 1901, between the same parties, under the provisions of' Section 46 of the Bengal Tenancy Act, seven issues were framed. The Munsif found those issues against the plaintiff and dismissed the suit. Then the Subordinate Judge affirmed that order of dismissal but only with 'reference to two issues, and ho loft undecided the fifth issue, n...
Ananta Ghosh Vs. Pyary Lal Mukherjee
Court: Kolkata
Decided on: Aug-09-1909
Reported in: 3Ind.Cas.101
1. Although there is no map in this case, the relative position of the plots in suit is not open to any doubt. Plot No. 1, said to consist of 6 bighas, is on the west of plot No. 2 said to consist of 2 bighas. The latter is in a northernly direction from certain resumed chakran lands. The Court of first instance accepting the admission in the deposition of defendant No. 1, as to the plaintiff being in possession of some lands north of the resumed chakran lands, gave a decree to the plaintiff for the land in the second plot but not for the land of the first plot in suit.2. On appeal to the Subordinate Judge, that officer pointed out that, on a proper reading of the defendant's deposition, the suit should have been decreed with regard to the 6 bighas in plot No. 1 also, and, in that view of the matter, he gave the plaintiff a decree for that plot also.3. In second appeal two contentions have boon advanced, namely, first, that there was no such admission on the part of the defendant in hi...
Nitai Chand Saha Banikya and anr. Vs. Nagani Dasya and anr.
Court: Kolkata
Decided on: Aug-09-1909
Reported in: 3Ind.Cas.426
1. This appeal is directed against a decree of the Subordinate Judge of Dacca by which he has granted to the respondent Letters of Administration with a copy annexed of the will alleged to have been executed and registered so far back as the 29th May 1873 by a lady named Tulsi Money. The evidence indicates that she died in 1874, but no application for Letters of Administration was made till the 13th September 1906. Tulsi Money had three sons, Kukuri, Rabi Das and Dwarka Nath. Dwarka Nath was apparently dead at the time of the execution of the will. Kukuri has subsequently died leaving a widow Nagani Dassya one of the petitioners. Rabi Das married thrice. By his first wife Kamini he had a daughter Brajeswari the second petitioner. His third wife was Binodini who is one of the objectors. Dwarka Nath had two sons Sonatan and Narayan Peari Money, the widow of Sonaton is the second objector. The proceedings have been contested substantially by the purchasers from persons who would take the ...
Shwarnamoyi Debya Vs. Navadurga Debya Chowdhurani and anr.
Court: Kolkata
Decided on: Aug-06-1909
Reported in: 3Ind.Cas.161
1. This is an appeal by the plaintiff from a decree of the District Judge of Noakhali, dismissing her suit on the preliminary ground that it was barred by Section 42 of the Specific Relief Act, 1877, and could not proceed in its present form because it was in substance a suit to cancel the will of her father Naba Kumar Roy, Chowdhuiy. The following facts are undisputed. One Raj Kamal Roy Chowdhury by his will dated 13th Magh 1265 left his property to his son Naba Kumar Roy Chowdhury and the child of which his wife was then pregnant, if it were a son. In the event of his son or both his sons, not living long the Testator empowered his wife to adopt two or three sons in succession. Raj Kamal died shortly after making his will in 1265 leaving his widow Ram Durga Deby Chowdhurani and his son Naba Kumar him surviving. The child born after Raj Kamal's death was a daughter. Naba Kumar thus became entitled to the property and in his turn made a will dated 2nd Jaista 1282 by which he conferred ...
Dwarka Nath Nandi and ors. Vs. Mritunjoy Patra
Court: Kolkata
Decided on: Aug-06-1909
Reported in: 3Ind.Cas.175
1. The plaintiffs in this suit sue upon a simple mortgage-bond executed in their favour by the defendants on the 5th Assar 1301. The mortgaged properties were three in number. On the 17th Jaisto 1304, the defendants executed a second and independent mortgage-bond in favour of the plaintiffs, this mortgage comprising two out of the three properties covered by the earlier mortgage.2. The Court of first instance held that the plaintiffs were not entitled to an order in the present suit for sale of the two properties comprised in the second mortgage. The learned Munsif, therefore, gave the plaintiffs a decree under which, in default of the money due not being paid within three months from the date of the decree, the plaintiffs were to be entitled to bring, to sale the property not included in the second mortgage.3. Against that decree an appeal was preferred to the District Judge of Bankura, Mr. B. C. Mittra. The judgment of the learned District Judge is in these terms: 'This appeal has be...
NaraIn Pal and ors. Vs. Addoita Mondal
Court: Kolkata
Decided on: Aug-06-1909
Reported in: 3Ind.Cas.173
1. In this second appeal, defendants Nos. 1 to 9 and 11 are the appellants before me. Among the prayers of the plaint are the following : (a.) to declare the title of the plaintiff to the 5 cottahs of land out of the 15 cottahs comprised within the boundaries given, (b) to give the plaintiff a decree for possession of the said 5 cottahs of land. The suit, therefore, is a suit for declaration of title and consequential relief in the way of possession.2. The defendants who are potters plead a right in the nature of an easement to take earth from time to time from any 10 cottahs of land within a larger area said to comprise 7 bighas including the 5 cottahs in dispute, and to belong to the plaintiff. The case for the defence is thus stated in paragraph 6 of the written statement: 'The claim of the plaintiff is barred by limitation inasmuch as these defendants have for upwards of 12 years held adverse possession of any 10 cottahs of land within the boundaries given below, as well as of the ...
Chairman of Santipur Municipality Vs. BepIn Behary Sen
Court: Kolkata
Decided on: Aug-06-1909
Reported in: 3Ind.Cas.429
1. We are unable to uphold the judgment of Mr. Justice Carnduff not because we consider it is erroneous on the merits-that is a matter on which we have not entered-but on the ground that this is a case coming within Section 586 of the Civil Procedure Code. The mere fact that payment was made under pressure of the issue of a distress warrant does not bring the case within article 35 Clause (j) of the second schedule to the Provincial Small Cause Courts Act, for that has regard to a suit for compensation for illegal, improper or excessive distress or attachment. But it is not shown that there was any distress here, so that the suit is not one in tort but for money had and received. For this a suit will lie in the Small Cause Court. Therefore, the case comes within Section 586 of the Civil Procedure Code.2. We must, therefore, allow the appeal from Mr. Justice Carnduff and dismiss the appeal from the lower appellate Court with costs....
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