Court : Kolkata
Reported in : 37Ind.Cas.852
1. It has been found by the lower Court that the land in dispute is in the zemindari of the pLalntiffs. It has been also found that the defendant took settlement of the same from a neighbouring zemindar in good faith. Upon these findings, the first Court allowed the defendant to remain in possession and the pLalntiffs were given a decree for possession by receipt of rent from the defendant. In the lower Appellate Court, it was contended on behalf of the pLalntiffs, that it was not sufficient to find the bona flies of the tenant and that it was further necessary to find whether the person from whom the tenant took settlement, was acting bona fide in making the settlement with him. The learned Judge, however, thought that it was not necessary to enter into that question as it was, in his opinion, immaterial whether the lessor made settlement in good faith or otherwise. That, however, does not seem to be the correct view of the law as Lald down in some of the latest cases.2. The case reli...
Tag this Judgment!Court : Kolkata
Reported in : 37Ind.Cas.965
Fletcher, J.1. This is an appeal from the decision of the learned District Judge of Chittagong, dated the 28th April 1914, affirming the decision of the Munsif of Hathazari. The suit was brought to recover arrears of rent due under a contract of tenancy. The exact nature of the tenancy it is not necessary for us to consider. But the defendant had executed in favour of the plaintiff a kabuliyat Under that kabuliyat, the defendant undertook to pay for the land certain rent which is mentioned in the body of the document as the aforesaid rent. The amount of the rent is written down at the head of the kabuliyat as the consolidated rent or the total rent. The question is, 'is the item before the total is arrived at given as the jama, the rent, and the other items in arriving at the total are abwabs or illegal exactions by the landlord?' I am of opinion that the view taken by the lower Courts in this case cannot be supported. The rent is arrived at, it is true, by taking into consideration ce...
Tag this Judgment!Court : Kolkata
Reported in : 38Ind.Cas.66
1. The only question involved in this appeal is whether the time taken in obtaining a copy of the decree as well as the time requisite for obtaining a copy of the judgment should be excluded in computing the period of limitation prescribed for an appeal. Under Section 12, Clauses (2) and (3), of the Limitation Act the appellant is entitled to a deduction of the time requisite for obtaining a copy of the decree as well as the time requisite for obtaining a copy of the judgment. The only question, therefore, is whether he is so entitled if he applies for copies of the judgment and decree at diffirent times. We think he is so entitled and that both the two periods should be excluded. . In support of this view there are several decisions of the Madras High Court. [See Raman Chetti v. Kadirvelu 8 M.L.J. 148, Silamban Chetty v. Ramanadhan Chetty 4 Ind Cas. : 30 : 83 M. 256 : 7 M.L.T. 29 : (1910) M.W.N. 141 : 21 M.L.J. 152 and Karnam Narasimhulu v. Secretary of State 17 Ind. Cas 393 : 12 M.L....
Tag this Judgment!Court : Kolkata
Reported in : 36Ind.Cas.842
1. This Rule is directed against an order of the District Magistrate of Rangpur directing the prosecution of the petitioner Chandra Kishore Roy on charges under sections 469, 471 and 474, Indian Penal Code. It appears that Chandra Kishore Roy was an accused in a case under Section 147, Indian Penal Code, and that in the course of the proceedings in that case before the Joint Magistrate of Rangpur Mr. Sells, a certain document, Exhibit H, was used in evidence on behalf of the accused, Mr. Sells having heard the evidence in the case, it appears, proceeded on leave on the 11th March 1916, without writing or pronouncing judgment. It further appears that on the 19fch April following while still on leave he forwarded to the District Magistrate of Rangpur what purported to be a judgment which he had written and signed on that date. The District Magistrate of Rangpur, forming the opinion that this so-called judgment was no judgment, transferred the case to his own file and proceeded to deal wi...
Tag this Judgment!Court : Kolkata
Reported in : 36Ind.Cas.882
1. The plaintiffs claimed recovery of possession of certain lands as their niskar brahmatter and also by right by adverse possession. The Court of first instance dismissed the suit: the Court of Appeal has decreed it, holding that the brain mater title is proved and that the plaintiffs had proved possession for about 15 years from 1275 to 1292 Faslis and again 1303 to 130 Faslis and that the defendants intermediate possession from 1292 to 1303 Faslis for less than 12 years was of no avail as against the right of the plaintiffs. The principal defendants appeal, and on their behalf it has been contended that the finding on the first point is vitiated in that it is founded upon inadmissible evidence. The recital of brahmatter title in the Will of the plaintiffs predecessor is not admissible under Section 32(1) of the Evidence Act read with Section 13(a), and the recital in the judgment Exhibit X in the claim case not inter partes is also not evidence. See Basi Nath Pal : Kashi Nath Pal v....
Tag this Judgment!Court : Kolkata
Reported in : 39Ind.Cas.388
Lancelot Sanderson, C.J.1. In this case, in my judgment, we must entertain the appeal. It has been argued by the learned Counsel for the respondent that there was no appeal from the decision of the learned Judge, Mr. Justice Fletcher, upon the question of costs. The reason why we entertain this appeal is that we think that a question of principle is involved. In my judgment, the learned Judge has not applied the correct principle in this case.2. It is urged by the learned Counsel for the respondent that the mutawallis were not trustees in the ordinary sense of the word. One may be inclined to agree with him to that extent, but I think that the mutawallis, having regard to the terms of the consent decree which included the scheme on which they were acting, were in the nature of trustees. I do not want to decide and do not decide anything about the position of Mutawallis generally, and my remarks are confined to the position of the mutawallis in this case, having regard to their position...
Tag this Judgment!Court : Kolkata
Reported in : 36Ind.Cas.798
1. The petitioner, who was a defendant in a suit, applied to have an ex-parte decree passed against him set aside. On the day fixed for disposal of the application he applied for time, and that application being rejected, his Pleader intimated to the Court that he had no further instructions. The application for setting aside the ex parte decree was accordingly dismissed for default. He preferred an appeal against the order dismissing (for default) the application to set aside the ex parte decree and that appeal was rejected by the learned Judge below on the ground that no appeal lay This case cannot' be distinguished from the case of Kumud Kumar Base v. Hari Mohan Samadar 30 Ind. Cas. 45 : 21 C.L.J. 628, where it was held under similar circumstances that an appeal lies. The order of the Court below is accordingly set aside and we direct that the appeal be heard by the learned Judge of the Court below We make no order as to costs....
Tag this Judgment!Court : Kolkata
Reported in : 36Ind.Cas.881
Fletcher, J.1. This is a rule calling upon the opposite party to show cause why the judgment and decree complained of should not be set aside. The petitioner before us brought a suit to recover the sum of Rs. 400 due upon a bond. The suit was instituted in the Court of the Munsif at Dinajpur, the Munsif not being vested with the powers of a Small Cause Court Judge. Subsequently, a Subordinate Judge was sent to Dinajpur who was vested with the powers of a Small Cause Court Judge, which powers were admittedly wide enough to try the suit if it had been instituted before him. Two decisions have been cited before us, from which it would appear that the fact that a Judge invested with the Small Cause Court powers was sent to Dinajpur would riot affect the right that the plaintiff had to have his case tried by a Court of ordinary jurisdiction, so that there could be an appeal against the decision of the Judge if it went against him. But in this case that was not the course adopted. It appears...
Tag this Judgment!Court : Kolkata
Reported in : 38Ind.Cas.942
1. We are of opinion that the learned Subordinate Judge is right in holding that an occupancy holding not transferable by custom or usage cannot be sold in execution of a money-decree when the raiyat objects to the sale. The same view was taken in an unreported case, Appeal from Order No. 412 of 1915 [Narayani v. Nabin Chandra Chowdhari 36 Ind. Cas. 803 : 21 C.W.N. 403]; and we see no reason to differ from the view taken in that case. The Rule is accordingly discharged....
Tag this Judgment!Court : Kolkata
Reported in : 39Ind.Cas.199
Sanderson, C.J.1. This is an appeal from a judgment of Mr. Justice Greaves, which was delivered on the 14th day of March in this year.2. The appeal was based upon two grounds: first, that the learned Judge had refused an order to discharge the insolvents: and, secondly, that he had made an order annulling the adjudication in insolvency.3. The learned Counsel who appeared for the insolvents, the appellants, has not pressed the first ground. Therefore, it is not necessary for us to say anything about it.4. The point which has been argued is the second one, namely, that the learned Judge ought not to have made an order annulling the adjudication.5. The argument is based upon two grounds. First, it is argued that the learned Judge had no jurisdiction to make the order: secondly that if he had jurisdiction he ought not to have exercised it in the way in which he did, namely, by making an order of annulment.6. The facts in this case are some what peculiar. It appears that the appellants, the...
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