Kolkata Court May 1910 Judgments
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Tara Sundari Debi Vs. Khedan Lal Sahu and ors.
Court: Kolkata
Decided on: May-16-1910
Reported in: 7Ind.Cas.980
1. This second appeal arises out of a suit on a mortgage bond, dated the 21st December 1900, and the question which has to be decided is one of subrogation. It appears that one Bhagwat Pershad Singh mortgaged his two anna share in Mouzah Pain Kalan to one Narsingh Singh by a bond early in 1886. Narsingh brought a suit on this bond and obtained a decree on the 21st June 1899 for Rs. 850, Bhagwat Pershad's share was put up for sale in execution and after several adjournments the decretal amount was paid off by the plaintiff's husband, the pleader and old friend of the judgment-debtor, by means of a mortgage bond for Rs. 850 to his wife Tara Sundari. The bond recites the necessity for paying off the decree and the fact of its payment, it refers to the mortgage of Narsingh and also specifically mentions one of the three mesne mortgages which the Court of first instance has postponed to plaintiff's mortgage holding that she has the right of subrogation.2. The learned Judge in the lower appe...
Khiroda Kanta Roy and ors. Vs. Krishna Das Laha and ors.
Court: Kolkata
Decided on: May-16-1910
Reported in: 6Ind.Cas.467
1. The subject-matter of the litigation, which has given rise to this appeal, is an one-third share of a tract of land upon which is held a market, named by the plaintiffs-appellants, Kosbahat, and by the defendants-respondents, Babus Bazar. It is the common case of both parties that the land at one time formed part of the Estate of Raja Baroda Kanto Roy, and after his death passed by inheritance to his three sons, Raja Granada Kanta Kumar, Manada Kanta and Kumar Hemada Kanta. The share now in dispute admittedly was owned by Hemada Kanta. The plaintiffs found their title upon a sale in execution of a money-decree against Hemada Kanta, held on the 16th May 1893, and confirmed on the 30th September 1893. The sale certificate, in which the property was described as Kosbahat, was granted on the 8th January 1894, and symbolical possession was delivered to the purchasers by the Court two days later, on the 10th January 1894. The defendants-respondents found their title on a conveyance execut...
Upendra Mohan Das Gupta Vs. Rajah Jyoti Prosad Singh Deo
Court: Kolkata
Decided on: May-16-1910
Reported in: 6Ind.Cas.386
1. This is an appeal from the order of the Subordinate Judge of Manbhoom, dated the 14th November 1908, issuing writ of attachment on the movables of J3abu Upendra Mohan Das Gupta, a Vakil of the Court for the sum of Rs. 122 drawn by him as the Commissioner's fees in a partition suit in excess of what was allowed by the Court as his costs. He appears to have had ample notice to refund the money and declined or neglected to do so.2. A preliminary objection is taken that no appeal lies inasmuch as the order is not one contemplated by Section 649 of the former Code of Civil Procedure. We are inclined to think that it does fall within that section, but if it does not, it must be taken to be an order such as is contemplated by Section 151 of the present Code, and such orders were held to be valid under the inherent powers of the Court in the case of Jogendra Chandra Sen v. Wazid-un-nissa 34 C. 850 : 11 C.W.N. 856. It is admitted that if the order is Under Section 649, the appeal must fail o...
Panchanan Basu and ors. Vs. Chandi Charan Misra and ors.
Court: Kolkata
Decided on: May-16-1910
Reported in: 6Ind.Cas.443
Lawrence Jenkins, C.J.1. This case comes before, us by way of second appeal, the suit being one by which the plaintiffs seek a declaration of their right to a pattah in a four-anna share in the lands described in the schedule, for relief in respect of that 4-anna share and for possession.' The suit is based on a solenamah or agreement of compromise, by which the differences in a former suit, that is suit No. 350 of 1903, were compared.2. The defendants have objected to the plaintiffs' claim on several grounds, but on appeal the only point discussed has been whether or not the solenamah was admissible in evidence. The view that has found favour with the lower Courts and also with Mr. Justice Sharf-ud-din, before whom the case came by way of appeal in the first instance, has been that it was inadmissible and, it is from the judgment confirming the decree of the lower appellate Court that the present appeal is preferred under Clause 15 of the Letters Patent.3. Before us it has been conten...
Gopala Roy Vs. Ram Kishen Thakur and ors.
Court: Kolkata
Decided on: May-16-1910
Reported in: 6Ind.Cas.450
1. This appeal arises out of proceedings in effectuation of a partition decree.2. One of the plots No. 40 fell to the share of the defendant No. 1. There is an orchard,, upon this plot. The defendants Nos. 3 and 4 claimed to have been in possession of this orchard as their own and they applied to the officer making the partition for assessing a fair and equitable rent upon this plot so that they might continue to possess it as before, paying the rent fixed to the defendant No. 1.3. The first Court found that their possession was not; made out. The lower appellate Court, however, upon the evidence, found that their exclusive possession had been made out.4. It appears from the record that this exclusive possession was of a long duration and the only question is whether the Civil Court has any power to assess fair and equitable rents upon any plots of land under circumstances obtaining in this case.5. It is provided by Sections 64 and 65 of the Estates Partition Act (V of 1897) that the p...
Hari Ballabh Rai and ors. Vs. Gopal Lal Singh
Court: Kolkata
Decided on: May-16-1910
Reported in: 6Ind.Cas.577a
1. This is an appeal from the judgment and decree of the Subordinate Judge of Cuttack, dated the 14th June 1907, in a suit brought by the plaintiff as one of the two reversionary heirs of one Shyam Ballabh Rai, who died in 1876. He seeks to recover possession and declaration of title in 8 annas share in certain separate parcels of property which were, it is alleged, at one time included in the estate of Shyam Ballabh, and he alleges that certain kobalas were executed by Gopemoni, the widow of Shyam Ballabh to various people, at various dates, of various isolated portions of the estate. But there is no allegation that any portion of the estate which could be now dealt with as a whole is covered by these various alienations. Further he seeks to set aside the alienations made after the widow's death by his own father and brother during his minority. The defence appears to have been that Shyam Ballabh was not the owner of some of the properties claimed, and also that there was no necessity...
Karnadhar Haldar Vs. Hariprasad Roy Chaudhuri
Court: Kolkata
Decided on: May-13-1910
Reported in: (1910)ILR37Cal731
Lawrence H. Jenkins, C.J.1. This appeal raises a point of some interest, and notwithstanding the ingenious argument of Mr. Mitter, I hold that the appellant is entitled to succeed.2. The case arises in this way: the present defendant brought a suit to recover possession of lands from which he said he had been wrongfully ousted. He obtained a decree in his favour for recovery of possession, and that decree was ultimately confirmed by the High Court. As yet the plaintiff in that suit, who is the defendant in this, has taken no steps to execute his decree, and it does not appear that he has even threatened to execute it. But the present plaintiffs have commenced this suit, whereby they pray to have it declared that the defendant had no title to the lands in suit, to establish that they are not bound by the decree of the Title Suit No. 135 of 1903, for perpetual injunction restraining the defendant from taking possession of the lands in suit by executing the decree of Title Suit No. 135 of...
Rameswar Singh Vs. Jaideb Jha and ors.
Court: Kolkata
Decided on: May-13-1910
Reported in: 6Ind.Cas.387
1. This was a suit for rent against several defendants. One of these defendants was dead before the service of summons. The fact of the death was brought to the notice of the Court and there was an application to bring in his heirs. No further steps were taken by the Court and a decree was passed against the deceased defendant as if he were living.2. In the second Court the alleged heirs of the deceased Madan Jha were brought in as defendants and there it was contended that they had been brought in after the expiry of the period allowed by law, that the application for substitution was, therefore, barred by limitation and that the whole suit ought to fail. The learned District Judge gave effect to this plea although the only part of the case that was under appeal before him was a fraction of the claim relating to certain muafi.3. The learned Judge was wrong in dismissing the whole suit. One of the defendants was not brought in time and the whole suit has been dismissed although a part ...
Karnodhar Haldar Vs. Hari Prosad Rai Chowdhury and ors.
Court: Kolkata
Decided on: May-13-1910
Reported in: 6Ind.Cas.444
Lawrence Jenkins, C.J.1. This appeal raises a point of some interest, and notwithstanding the ingenious argument of Mr. Matter, hold that the appellant is entitled to succeed.2. The case arises in this way : The present defendant .brought a suit to recover possession of lands from which, he said, he had been wrongfully ousted, lie obtained a decree in his favour for recovery of possession, and that decree was ultimately confirmed by the High Court. As yet the plaintiff in that suit, who is the defendant in this, has taken no steps to execute his decree and it does not appear that he has even threatened to execute it. But the present plaintiffs have commenced this suit whereby they pray to have it declared that the defendant had no title to the lands in suit, to establish that they are not bound by the decree of the title Suit No. 135 of 1903, for perpetual injunction restraining the defendant from taking possession of the lands in suit by executing the decree of title Suit No. 135 of 1...
Sita Nath Roy Vs. Hare Krishna Sahu and ors.
Court: Kolkata
Decided on: May-13-1910
Reported in: 6Ind.Cas.573
1. A preliminary objection is taken in this case that no second appeal lies. We think that the objection is a sound one. There is no provision of the law which enables the judgment-debtor to deposit money to have a sale set aside except Rule 89, Order XXI, of the present Code of Civil Procedure, and it is significant that that Rule takes the place of the special section of the former Code of Civil Procedure, Section 310A, which had to be added to the Civil Procedure Code, because before it was added there was no provision whatever for the judgment-debtor being able to set aside the sale by paying in the money due. It is argued before us that such deposit comes within the purview of Section 47 of the Code, and it is pointed out that while Section 310A of the old Code was in force, there were certain rulings of this Court and of the Allahabad Court where relief was granted under Section 244 of the old Code for this reason that no appeal whatever lay against an order under Section 310A. I...
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