Kolkata Court May 1914 Judgments
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Basir Sheikh and ors. Vs. Fazle Karim Biswas and ors.
Court: Kolkata
Decided on: May-13-1914
Reported in: AIR1915Cal786(1),28Ind.Cas.703
1. This is an appeal by the defendants in a suit for possession of land. The decree is one for joint possession in favour of five plaintiffs. All these plaintiffs were joined as respondents to the appeal. The appellants, however, failed to serve notices of the appeal on two of them and the result was that this Court directed the appeal to be dismissed in so far as those two plaintiffs-respondents were concerned. The appeal has now come before us for disposal in so far as it is directed against the remaining three plaintiffs-respondents.2. A preliminary objection has been taken that the appeal should not be heard, because, as the decree was one for joint possession of land, whatever view may be taken by this Court on the merits, the entire decree can be executed by the two plaintiffs against whom the appeal has been dismissed. In our opinion this objection is fatal and must be allowed. The view we take is supported by the decision of this Court in the cases of Bejoy Gopal Bose v. Umesh ...
Keshob Lal Nag Mazumdar and ors. Vs. Jnanendra Nath Ghose and ors.
Court: Kolkata
Decided on: May-12-1914
Reported in: AIR1914Cal706,24Ind.Cas.538
1. This is an appeal by the plaintiffs in a suit under Section 155 of the Bengal Tenancy Act for ejectment of the tenants--defendants on the ground that they have broken a condition on breach of which they are, under the terms of a contract between them and the landlords, liable to ejectment. The condition which is alleged to have been broken is one against assignment, and the case for the plaintiffs is that there has been a breach of the covenant not to assign as the defendants have executed a sub-lease for 999 years. The Court of first instance decreed the suit and held that the plaintiffs wore entitled to a decree in terms of Section 1.55. The Court further held that the defendants were liable to pay to the plaintiffs compensation for the breach of covenant on the basis of the profit which would have accrued to the plaintiffs if the defendants had not been granted relief against the forfeiture. Upon appeal, the Subordinate Judge dismissed the suit. On appeal to this Court, the decre...
Srimati Majidunnessa Bibi Vs. Srimati Amnessa Alias Aslahanessa Bibi
Court: Kolkata
Decided on: May-11-1914
Reported in: AIR1914Cal768,24Ind.Cas.826
Fletcher, J. 1. This is an appeal from an order of the learned District Judge of Burdwan refusing to restore an appeal which had been dismissed for default. The decree in the Court of first instance was an ex parte decree. Against that decree, the defendant preferred an appeal to the learned District Judge. When the appeal came on for hearing according to the order of the learned District Judge, the Pleader engaged in the case having been sent for did not appear, although the learned Judge had his name called out six times. It seems to me from that statement in the judgment that the learned Judge gave the Pleader ample warning to come forward and argue the case for the appellant. It is said that this gentleman, that is, the Pleader engaged was a gentleman of considerable practice in the local Courts and that his services were not only required before the learned District Judge but also in the two other Courts there. If that is so and if the appellant engaged the services of so popular ...
Kunja Behari Seal Vs. Durga Prasad Singh
Court: Kolkata
Decided on: May-07-1914
Reported in: AIR1914Cal205,(1915)ILR42Cal346
Fletcher, J.1. The only question arising for our decision in the present appeal is whether the minerals lying beneath: the mauza Jitpur in the pargana of Jheria passed to the ancestor of the Tewari defendants by a Moghali brahmottar grant at a rent of Rs. 16 a year by the -ancestor of the defendant No. 1. The plaintiff has acquired a 15 annas, 2 1/4 gandas share in the subsoil of the mauza from the Tewaris and brought the suit for the declaration of his title to such share. His claim wag resisted by the contesting defendants on various grounds, the only one of which it is now material to consider is the defence that the brahmottar granted by the ancestor of the defendant No. 1 to the ancestor of the Tewari defendants did not pass the minerals to the grantee. The evidence before us is small and the case largely depends upon what are the proper inferences of fact to be drawn from certain admitted facts.2. There is no document evidencing the grant of the brahmottar, although it would appe...
Jadu Nath Acharjya Vs. Tarak Chandra Chatterjee and anr.
Court: Kolkata
Decided on: May-07-1914
Reported in: 25Ind.Cas.810
Fletcher, J.1. This is an appeal by the defendant No. 2. The suit was brought by the plaintiff to recover khas possession or, in the alternative, compensation from the defendants Nos. 1 and 2. The defendant No. 2 is the purchaser from the defendant No. 1. The defendant No. I purchased the property in suit in the month of November 1897 and, having held it for eight years, he sold it on the 28th November 1905' to the defendant No. 2 for the sum of Rs. 1,200. In the meantime before the sale to the defendant No. 2 the defendant No. 1 had borrowed certain moneys on a mortgage of the property and those moneys were paid out of the purchase-money by the defendant No. 2 and the evidence is conclusive that the defendant No. 2 paid the balance of the purchase-money to the defendant No. 1.2. In these circumstances, it looks at the first blush that the title is a fairly clear one, so far as the defendant No. 2 is concerned. But it appears from the finding of the learned Judge--and that finding we d...
Debendra NaraIn Sinha and ors. Vs. Sourindra Mohan Sinha and ors.
Court: Kolkata
Decided on: May-07-1914
Reported in: AIR1914Cal697,24Ind.Cas.391
1. This is an appeal by one of the judgment-debtors against an order for execution of a mortgage-decree. The final decree in the mortgage suit was made by consent of parties in this Court on the 20th August, 1909. One of the terms of the consent decree was to the effect that if a sum of Rs. 1,10,000 was paid to the plaintiffs on or before the 16th April 1910 in part satisfactions of the decree, the plaintiffs would not be entitled to put the decree into execution or apply for sale of the mortgaged premises till the 31st July, 1911. This sum was paid and on the 3rd April, 1912, the decree-holders applied for recovery of the balance of the judgment-debt by execution of their decree. To this application an objection was taken by the judgment-debtor, now appellant before us, on the ground that execution could not proceed, as the decree-holders had agreed not to execute the decree for a period of twelve years. The objection may be best stated in the words of the judgment-debtor himself : ' ...
Hakimullah and anr. Vs. NobIn Chandra Barua
Court: Kolkata
Decided on: May-07-1914
Reported in: AIR1915Cal19,24Ind.Cas.177
Holmwood, J.1. This second appeal arises out of a suit, brought by a lunatic, named Nobin Chandra Barua, through his next friend, guardian and sister, Srimati Shanti, against several defendants, of whom the defendants Nos. 1, 2, 3 and 4 are the only defendants with whom we are concerned in this appeal. It appears that the defendant No. 2 was another sister of the lunatic and the wife of the defendant No. 1, Isap Ali. During the lunacy of the plaintiff (which is found, as a fact, notorious and known in the neighbourhood where he lived and had his property), a suit was brought by the landlord for the rent of two plots Nos. 1 and 2 in the schedule of the present plaint : and two rent decrees were obtained, ex parte, against the lunatic, who was not at all represented in the suit. Both the Courts below have held that as in the decrees and auction sales Nobin was not properly represented, his right was not affected by the sales : that, as the defendant No. 1 was the de facto Manager of Nobi...
Sahebjada Faridun Shiko on Behalf of Minor, Jahan Arrah Begum Vs. Faki ...
Court: Kolkata
Decided on: May-06-1914
Reported in: AIR1914Cal786(2),24Ind.Cas.862
1. We are invited to set aside, in the exercise of our appellate or of our revisional jurisdiction, three orders made by the District Judge in the matter of wakf estate, of which a Receiver had been previously appointed on the 18th June 1912. By the first of these orders, the District Judge refused an application for removal of the Receiver. It is plain that this order is not liable to be challenged by way of an appeal to this Court. Under Order XLIII, Rule 1, Clause (s) of the Code of Civil Procedure, an appeal lies from an order made under Rule 1 or Rule 4 of Order XL. The order under Rule 1 may be an order for appointing a Receiver of any property, or removing any person from the possession or custody of such property, or committing the same to the possession, custody or management of the Receiver, or conferring upon the Receiver powers for the management, protection, preservation and improvement' of the property. Rule 4 deals with the enforcement -of a Receiver's duties. The order ...
Raja Sri Sri Mohendra Lal Singha Deo Vs. Fakir Chandra Dutta and ors.
Court: Kolkata
Decided on: May-06-1914
Reported in: AIR1915Cal70,24Ind.Cas.610
Fletcher, J.1. In this case, the first defendant has appealed from the judgment of the learned Subordinate Judge, dated the 21st September 1911. The case certainly stands on a peculiar footing and, so far as I know, I have never met with such a case before, because it is the common case of all the parties that they came to an agreement which was reduced in writing by which they agreed to refer all matters in dispute between them to the arbitration of certain arbitrators and they asked the learned Judge to refer the matter to the arbitrators named. The learned Judge, however, said, so far as we can see from his order-sheet--Order No. 21 dated the 19th September 1911--that 'the application being untimely is rejected'. The learned Judge might have considered that when the case had taken up so much time of the Court, the application was untimely, but, notwithstanding that,, the learned Judge was bound, by the provisions of the law, if the parties did come to an agreement to refer the matte...
Abdullah HosseIn Chowdhury Vs. Administrator-general
Court: Kolkata
Decided on: May-05-1914
Reported in: (1915)ILR42Cal35
Jenkins, C.J.1. What is the history of Article 179 of the Limitation Act of 1908?]2. The provision originally appeared in the Privy Council Appeals Act (VI of 1874): Section 8 was as follows: 'Such application must ordinarily be made within six months from the date of such decree. But if that period expires when the Court is closed, the application may be made on the day that the Court re-opens.' This Act was repealed by the Code (Act X of 1877): bat Section 599 of the Code of 1877 reproduced that provision verbatim. Section 599 was repealed by the Limitation Act (XV of 1877), but the same period of limitation namely, six months from the date of the decree appealed against, is prescribed by Article 177 of the Limitation Act of 1877-and the same period is prescribed by Art 179 of the Limitation Act 4 of 1908. It is to be observed if Section 12 of the Limitation Act of 1908 be ultra vires, so mast Section 8 of the Privy Councils Act of 1874 have been ultra vires. I rely on Eastern Mortga...
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