Kolkata Court December 1911 Judgments
Munshi Rajbans Sahay Vs. Soorja Lal and ors.
Court: Kolkata
Decided on: Dec-27-1911
Reported in: 15Ind.Cas.519
1. The substantial question of law which calls for decision in this appeal relates to the construction of Section 104, Sub-section (1), Clause (c), of the Code of Civil Procedure of 1908. That clause pro-vides that an appeal shall lie from an order modifying or correcting an award. On behalf of the appellant, it has been argued that this clause, in effect, confers an unrestricted right of appeal; in other words, that when an order has been made by which an award has been modified or corrected, in an appeal preferred against that order, the validity of the whole award may be called in question. On behalf of the respondent, it has been argued, on the other hand, that the true effect of the clause is to allow an appeal against the order only in so far as it modifies or corrects the award. In our opinion, there is no room for controversy that the contention of the appellant is unfounded. If the argument of the appellant were to prevail, the result would be that the party in whose favour th...
Tag this Judgment!Beni Madho Singh Vs. Pran Singh and ors.
Court: Kolkata
Decided on: Dec-22-1911
Reported in: 14Ind.Cas.456
1. These appeals are directed against two orders made in execution proceed-mgs. The appellant, as plaintiff in a mortgage suit, obtained a decree on the 29th June 1907 which was confirmed by this Court on appeal on the 2nd December 1908. Execution was taken out in due course, the mortgaged properties were sold and were purchased by the decree-holder in the name of another person on the 25th November 1910. The auction-purchaser then obtained delivery of possession through the Court. Application was, however, made on the 21st March 1910 for reversal of the sale. That application was dismissed by the primary Court on the 18th August 1910, but upon appeal to this Court, the sale was set aside on the 28th August 1911. On the return of the records to the Court below, the judgment-debtors applied that they might be restored to possession of their properties. The decree-holder objected to the grant of this application on the ground that it could not be entertained under Section 144 of the Code...
Tag this Judgment!Bhut Nath Pal Mistry Vs. Chandra Benode Pal Chowdhury and ors.
Court: Kolkata
Decided on: Dec-22-1911
Reported in: 16Ind.Cas.443
1. This is an appeal on behalf of the plaintiff in a suit for damages for an injunction alleged to have been wrongfully issued against him at the instance of the defendants. The case for the plaintiff is that he began to construct a house on his land and had nearly finished one room when the defendants commenced an action against him for declaration of title and recovery of possession and took out a temporary injunction to stay further progress of the work. This suit by the defendants was instituted on the 3rd November 1902, by a plaint which embodied a prayer for injunction. On the day following, notice was issued upon the plaintiff, then defendant, to show cause why he should not be restrained from proceeding with the erection of the structures. On the 8th November 1902, the Rule was made absolute; the defendant was directed to discontinue building operations, but liberty was reserved to him to complete the roof then under construction. The plaintiff availed himself of this permissio...
Tag this Judgment!Tulsi Singh and ors. Vs. Thakur Dayal Singh and anr.
Court: Kolkata
Decided on: Dec-22-1911
Reported in: 15Ind.Cas.718
1. This is an appeal on behalf of the plaintiffs in a suit for declaration of title to immoveable property and for recovery of possession thereof. The case for the plaintiffs is that on the 25th January 1905, they purchased this property in execution of a decree on a mortgage held by them against the admitted tenant and that although they obtained delivery of possession through Court, they were subsequently ousted by the defendants, The, case for the defendants is that they pup-chased the property in '-March 1906 in execution of a decree for rent held by a co-sharer landlord and are entitled to hold possession thereof. It is clear that the title of the plaintiffs is superior to that of the defendants, who, as purchaser at a sale in execution of a decree for rent by a co-sharer landlord, are in the same position as a purchaser at a sale held in execution of a decree for money. Bat the Courts below have dismissed the suit on the ground that the holding in question was not shown to be tra...
Tag this Judgment!Hari Narayan Chatterjee Vs. Iswar Chandra Chatterjee
Court: Kolkata
Decided on: Dec-21-1911
Reported in: 13Ind.Cas.457
1. This appeal arises out of a suit for contribution. The plaintiff and the defendants are the heirs of some recorded tenants. The landlord brought a suit against the plaintiff for rent of the whole holding of the recorded tenants and succeeded in obtaining a decree against him. The plaintiff paid the full decretal amount and he now seeks for contribution from his co-sharers. In the lower Appellate Court his claim has been held to be good under Section 69 of the Contract Act.2. It is now argued before us that this finding is wrong because the plaintiff was under a legal liability to pay the rent, and that, therefore, the case falls under the ruling laid down in the case of Maharaja Manindra Chander Nandy Bahadur v. Jamuhar Kumari Bibi 2 C.W.N. 670 : 32 C. 643. Without discussing the question how far this ruling has been followed in other cases in this Court or the further question of the liability of the co-sharer tenants in respect of rent of the holding, we are of opinion that this c...
Tag this Judgment!Ganapat Marwari Vs. Balmakund Behara and anr.
Court: Kolkata
Decided on: Dec-20-1911
Reported in: 13Ind.Cas.206
Carnduff, J.1. This was a suit brought by the two plaintiffs for the recovery of Rs. 1,000 admittedly deposited by their deceased brother Badhasham Behara, with a banker. In the Court of first instance it was found that the money was not joint family property; that therefore, Badhasham's widow being alive, the plaintiff had no right to sue; and that the money had, in fact, been re-paid. As a result, the suit was at first dismissed. The learned District Judge has, however, reversed all the above findings and decreed it; and the defendant-banker has now preferred this second appeal.2. The District Judge's decision is attacked mainly with reference to the law he has enunciated as to the presumption in favour of a Hindu family; being joint and property in the hands of a member of it being family property. He has, it is said, gone too far in throwing the onus entirely on the appellant and holding that it is to be presumed, not only that Badhasham was joint with his brothers, the respondents...
Tag this Judgment!Rahimjan Bibi and on Her Death, Osman Taluqdar and ors. Vs. Imanjan Bi ...
Court: Kolkata
Decided on: Dec-20-1911
Reported in: 15Ind.Cas.698
1. This is an appeal on behalf of the plaintiff in a suit for declaration of title to immoveable property and for recovery of possession thereof. The properties in dispute admittedly belonged to one Dapu, the father of the plaintiff and of the defendant. On the 7th September 1907 Dapu. executed a hiba-bil-iwaz in favour of the defendant and had the document registered seven days later. He died shortly after on the 23rd November 907. The case for the plaintiff is that this hiba-bil-iwaz is inoperative and did not create any valid title in the defendant. The validity of the instrument was attacked explicitly on the ground that it had been obtained by undue influence; it was also described somewhat vaguely as illegal and inoperative.2. In this Court, as in the Courts below, the document has been assailed on two grounds, namely, first, that, as there is no proof of payment of the consideration mentioned in the deed, it cannot take effect as a hiba-bil-iwaz, and secondly, that if it be trea...
Tag this Judgment!Madan Mohan Jiu Thakur by His Shebait Benode Behary Patnaik and ors. V ...
Court: Kolkata
Decided on: Dec-19-1911
Reported in: 13Ind.Cas.425
1. This appeal arises out of a suit brought by the shebaits of Thakar Madan Mohan J in for recovery of possession of certain lands, which they allege to be the property of the idol. The suit was decreed by the Conrt of first instance but dismissed on appeal, and the plaintiffs appeal to this Court.2. The learned Subordinate Judge in appeal held that the plaintiffs had failed to prove that the land in suit was absolutely dedicated to the idol, or that it was inalienable, tie consequently held that the sales, by which the properly had been lost to the idol, could not be set aside, and that the suit for recovery of the land must, therefore, fail.3. On behalf of the plaintiffs it is urged (i) that the conclusions of the Appellate Court are not warranted by the facts found, (ii) that the burden of proof has been wrongly placed on the plaintiffs, (iii) that even if the findings of the lower Appellate Court are correct still the property is not freely alienable, and (iv) that the finding with...
Tag this Judgment!Jnan Chandra Nag Das and ors. Vs. Lochh Mohan Basak and ors.
Court: Kolkata
Decided on: Dec-19-1911
Reported in: 13Ind.Cas.541
1. Though the officiating Manaif has obviously bestowed considerable labour upon hip judgment the result has beets by no means satisfactory, because he has delivered a judgment which has reason ably led to an application for this Rule. The suit is one under Section 9 of the Specific Relief Act, and the points for determination were formulated by the learned Judge at, the outset of his judgment. Amongst those points was this, 'whether the, plaintiffs were in possession of the land in suit within six months from the date of dispossession.' That is not one of the points requisite for the purposes of a suit under Section 9. All that has to be determined for the purposes of that Section is whether the plaintiff was dispossessed, and whether his suit was brought within a six months' time from when the dispossession occurred, in other words, regard is to be had to the terms of Section 9 of the Specific Relief Act and Article 3 of the second Schedule to the Indian Limitation Act. The judgment,...
Tag this Judgment!Raja Sir Sourindra Mohan Tagore and ors. Vs. Rahim Bakhsh and ors.
Court: Kolkata
Decided on: Dec-19-1911
Reported in: 15Ind.Cas.497
1. This is an appeal on behalf of the plaintiffs in an action in ejectment. The plaintiffs commenced this action under Clause (a) of Section 25 of the Bengal Tenancy Act to eject the defendants on the ground that they, as occupancy-raiyats, had used the land comprised in their holding in a, manner which rendered it unfit for the purposes of the tenancy, because they had excavated a tank on the land in suit. The Courts below have concurrently dismissed the suit on two grounds, namely, first, that the plaintiffs had waived their right to eject the defendants, as, subsequent to the excavation of the tank which is alleged to have caused a forfeiture of the tenancy, they received rent from the defendants, and secondly, that the excavation of the tank had improved the holding and was not shown to have impaired its value. This decision has been assailed before us on behalf of the plaintiffs on two grounds; namely, first, that the question of waiver ought not to have been decided because it wa...
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