Kolkata Court January 1910 Judgments
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MofizuddIn Sardar Vs. Ashutosh Chukerbutty
Court: Kolkata
Decided on: Jan-11-1910
Reported in: 5Ind.Cas.189
1. Two questions of law of some importance and novelty have been argued in these appeals, namely:2. First, whether a sale in execution of a decree for the whole rent obtained by a landlord, who at the time of the suit is the registered proprietor and who has been placed and maintained in possession by a competent Court, operates as a sale under Chapter XIV of the Bengal Tenancy Act even if it transpires ultimately, as the result of litigation in a title suit, that he is not the sole landlord and has co-sharers in the property. Secondly, whether it is competent to a purchaser at a sale held in execution of a decree for arrears of rant to annul, under Section 167 of the Bengal Tenancy Act, an incumbrance upon the property purchased, without annulling at the same time a superior incumbrance directly subordinate to the interest purchased.3. The circumstances which render necessary the decision of these questions of law are not the subject of controversy between the parties to the litigatio...
Abbas Khan and ors. Vs. Nibarani Dassi and anr.
Court: Kolkata
Decided on: Jan-11-1910
Reported in: 5Ind.Cas.261
1. We are invited in this Rule to set aside an order of the Court of first instance for amendment of the decree in a mortgage suit, made on the 19th January 1906. That decree was confirmed on appeal, to the Subordinate Judge on the 9th May 1907. A second appeal was then preferred to this Court, but was dismissed on the 26th November 1907 under Section 551 of the Code of 1882. In the decree of the Munsif, which was thus ultimately affirmed, the property directed to. be sold was described as the dwelling house of the defendants excepting 10 cottahs of pirotter land. When the decree-holder applied for execution, the judgment-debtors objected that the decree was not in accordance with, the judgment and, ought not to be executed. The decree-holder thereupon applied to the Subordinate Judge on the 21st March 1908 for amendment of the decree. The Subordinate Judge, however, thought that he had no jurisdiction in the matter, and, directed the decree-holder to apply to the Court of first instan...
Rajani Khemtawali and Vs. Emperor
Court: Kolkata
Decided on: Jan-11-1910
Reported in: 5Ind.Cas.323
1. This case arises under the Eastern Bengal and Assam Disorderly Houses Act, 1907, and raises a question of some importance as to its proper construction. The facts relevant to the point before us are as follows: A complaint was made to the District Magistrate of Rungpur by four householders under Section 5(c) of the Act that certain houses were used by the petitioners before us for the purpose of habitual prostitution to the annoyance of the inhabitants of the vicinity, as mentioned in Section 2(b). The case was, therefore, made over to a Deputy Magistrate, and notices were issued to all the petitioners under Section 2, and, it is said, under Paragraph (c) of that section. On the petitioners appearing before him, the Deputy Magistrate proceeded to hear witnesses on oath on both sides, proceeding as though he were trying persons accused of an offence, and then himself visited the houses of the petitioners and other persons concerned. Acting on the information he received from these tw...
Pirthi Chand Lal Chowdhury Vs. Sheikh Hazari
Court: Kolkata
Decided on: Jan-10-1910
Reported in: 5Ind.Cas.453
Chatterjee, J.1. This appeal arises in a proceeding under Section 105 for the settlement of fair rents. It has been found that the defendants or their predecessors were owners of six separate tenures which have been Amalgamated into one. They have proved uniform payment of rent for more than 20 years before the suit and the question is whether they are entitled to the benefit of presumption under Section 50 of the Bengal Tenancy Act. It has been contended that the provisions of Clause 3 of Section 50 itself indirectly bar the incidents of the presumption. I may also refer to the case of Udoy Chandra v. Nripendra Narayan 1 Ind. Cas. 4 : 13 C.W.N. 410 : 36 C. 287, which holds that when a tenure is subdivided into two separate tenures, the presumption ceases to operate. The ratio decidendi of that case is that when Clause 2 of the section mentions both tenures and holdings as amenable to the presumption, Clause 3 refers only to holdings of raiyats and it must be presumed that the Legislat...
Bahadur Vs. Raghunandan Chowdhury and ors.
Court: Kolkata
Decided on: Jan-10-1910
Reported in: 5Ind.Cas.266
Chatterjee, J.1. The plaintiffs were entered in the record-of-rights under Chapter X of the B.T. Act, as tenure-holders without fixity of rent in respect of four tenancies. The final publication took place on the 29th October 1905 and the plaintiffs brought this suit in March 1906 for a declaration that the record was wrong and that they were raiyats with a fixed rent. The zemindar defendant admitted that the plaintiffs were occupancy raiyats but denied that they paid a fixed rent. The learned Munsif held that the suit being one for a declaration was one under the Specific Relief Act and not one under the Bengal Tenancy Act, so that the presumption under Section 50 of the B.T. Act, as regards fixity of rent did not apply and that on the merits no uniform payment of rent had been proved. The learned Subordinate Judge on appeal by the plaintiffs reversed the judgment of the learned Munsif and decreed the suit. It is contended in appeal before me:(1) that the suit itself is not maintainab...
Ahad Baksh Molla Vs. Sheikh Babar Ali and anr.
Court: Kolkata
Decided on: Jan-10-1910
Reported in: 5Ind.Cas.416
Chatterjee, J.1. The plaintiff presented a kabala for registration, the defendant denied execution and the Sub-Registrar refused registration. On appeal the Registrar confirmed the order of the Sub-Registrar on the 29th November 1906. The Civil Courts being closed on the 29th December on account of the Christmas holidays, the plaintiffs presented their plaint on the 2nd of January 1907, the next open day. The defendant pleads that the suit is barred by limitation. The Court of first instance gave effect to this plea and dismissed the suit. The appellate Court has decreed the suit. The defendant appeals and on his behalf it is contended that the appellate Court was wrong in law.2. It is contended that Section 77 of the Registration Act provides 30 days as the period within which such a suit must be brought and Section 5 of the Limitation Act has no application. In the case of Nijabutoolla v. Wazir Ali 8 C. 910 : 10 C.L.R. 333, it was held that Section 5 does apply to such suits. In the ...
Chaturbhuj NaraIn Singh and ors. Vs. Tara Kumri and anr.
Court: Kolkata
Decided on: Jan-07-1910
Reported in: 5Ind.Cas.193
Rrgular Appeals Nos. 89 and 132.1. The two present appeals arise out of in suits brought against the appellant in both appeals (1) by Takurani Tara Kumari widow of Takur Ram Narain Singh of gadi Telwa and (2) by Maharaja Sir Raveneswar Prosad Singh Bahadur K.C.I.E. of Girdhaur in which each claimed to recover from the appellant a half share of Taluq. Telwa, the widow of one-half share by right of inheritance from her husband, the Mahrajah of the other half share by right of purchase from the widow. The Maharajah in his suit, out of which Appeal No. 132 of 1909 arises, sought also in the alternative to have it declared that in his capacity of representative in interest of the mortgagees and creditors (defendants Nos.7 to 12) of the deceased Thakur Ram Narain Singh, he was entitled to recover from the estate all the money including interest &c.; up to the date of realization due under the mortgage and sudbarna bonds and deeds of transfer and to be declared to be entitled to possession of...
Radha Nath Karmokar and ors. Vs. Aditya Prosad Dass and ors.
Court: Kolkata
Decided on: Jan-07-1910
Reported in: 5Ind.Cas.264
Chatterji, J.1. An occupancy holding in the zamindary of the plaintiffs belonged to one Biswanath Dass. Biswanath sublet a portion of the same to defendants Nos. 1 and 2 and then sold the holding to a third party, who again sold the same to defendant No. 1, one of the under-tenants. The plaintiffs brought the suit on the allegation that the occupancy holding1 was not saleable by the custom of the locality and that they were entitled to possession.2. The first Court dismissed the suit holding that the property was transferable and secondly that there had been no notice under Section 49 of the Bengal Tenancy Act.3. The lower appellate Court has decreed the suit holding that the property was not transferable according to local custom and that no notice, under Section 49 of the Bengal Tenancy Act was necessary.4. On appeal, before me, three points have been raised. First, that the under-raiyati holding of defendants Nos. 1 and 2 still subsists and must be got rid of by a separate suit in d...
Lakhi Narayan Ghose Vs. Emperor
Court: Kolkata
Decided on: Jan-06-1910
Reported in: (1910)ILR37Cal221
Stephen, J.1. In this case the Deputy Commissioner of Singbhum ordered a prosecution of the petitioner for wrongfully cutting certain trees in a forest, and on reading the Explanation we must take him to have done this under Section 190(1)(c) of the Criminal Procedure Code. He also ordered certain trees to be attached.2. This Rule has been granted on two points. The first is that he had no authority to order the prosecution; and the second, that he had no authority to attach the trees.3. As regards the second part of the Rule, it is admitted that the order was without jurisdiction, and the Rule must be made absolute.4. As regards the first part, what happened is as follows. The Deputy Commissioner was also the manager of the encumbered estate, and in that capacity ordered one Kedar Nath Sircar, a servant of the Court of Wards, to make certain enquiries. The order which is now complained of was made as the result of the report made by Kedar Nath. It is now argued, on the strength of the...
Broja Gopal Mukherjee Vs. Abinash Chandra Biswas and ors.
Court: Kolkata
Decided on: Jan-06-1910
Reported in: 5Ind.Cas.127
1. The facts of the case but of which this appeal arises are not disputed. The only questions which have been raised in support of the appeal are two questions of law. The first point taken on behalf of the appellant is that the lower Court erred in law in holding that the document on which the defendant No. 3 relied was a legally registered document, and the second point taken is that the lower Court erred in allowing interest to ran only at six per cent, per annum after the expiry of six months from the date of the decree instead of at the rate fixed in the plaintiff's bond.2. The learned pleader on behalf of the plaintiff appellant has contended that the lower Court has come to a wrong interpretation of the effect of the decision of this Court in the case of Baij Nath Tewari v. Sheo Sahoy Bhagut 18 C. 556. He has argued that, as in that case the Full Bench held that, where the description of the property was misleading and insufficient for the purposes of identification, no registra...
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