Court : Kolkata
Reported in : 37Ind.Cas.64
1. In this case we think that the Rule must be made absolute. The order of the Magistrate, as it stands, cannot possibly be supported on the evidence on the record and en his own findings. He states distinctly that nobody has been in undisturbed possession of the land this year. That must mean from the previous Bysakh. Later on, he says: 'As there, could not be any act of peaceful possession within two months of the date of the proceeding, this being impossible owing to the land remaining under water, the possession of this year is to be presumed of the man who was in possession during the previous year.' This is in direct contravention of Section 145 (4), Criminal Procedure Code. We think, therefore, that the proper order which the Magistrate should have made in this case was one under Section 146, Criminal Procedure Code, and we accordingly substitute such an order for the order now complained of. We hold that it was impossible for the Magistrate to satisfy himself as to which of the...
Tag this Judgment!Court : Kolkata
Reported in : 34Ind.Cas.409
1. In this case it appears that the plaintiffs and their co-sharer defendants (Nos. 8 to 14) are the owners of a 12-anna odd share in a certain revenue-paying estate. The revenue payable on their share is Rs. 462 (sicca).2. In the year 1242 their predecessors-in-interest created a putni taluk in respect of their share in certain mauzas in favour of the predecessor of the Praraanick defendants. By the document creating the putni it was arranged that the putnidars should year by year pay into the Collectorate the sum of Rs. 412, to be credited to the Government revenue payable in respect of their landlords' share in the zemindari.3. In the year 1909, the plaintiffs who are the owners of a 5-anna 6 1/2ganda share found it expedient to open a separate account in respect of their share under Section 19 of Act XI of 1859 and did so with effect from the September kist of that year.4. The putnidars have, however, continued to make their periodical payments in one sum, and to the credit of the ...
Tag this Judgment!Court : Kolkata
Reported in : 34Ind.Cas.235
Lancelot Sanderson, C.J.1. This is an appeal by the defendants in this case, J. B. Ross & Co., against the judgment which was given by the learned Judge in the Court below in favour of the plaintiffs under these circumstances: The action was brought for unliquidated damages arising upon an alleged breach of contract, which was made between the plaintiffs and the defendants. The damages claimed were based upon the ordinary rule, viz., the difference between the contract price and the market price at the time the contract ought to have been performed. The summons was served, but the defendants did not enter appearance within the time specified in the summons, nor did they put in a written statement of defence within the time mentioned in the summons. Thereupon, the case was put upon the list of undefended cases, and it came before the learned Judge in due course. Then an application was made to the learned Judge on behalf of defendants for leave to appear and defend. The application was ...
Tag this Judgment!Court : Kolkata
Reported in : 34Ind.Cas.537
1. This appeal arises out of a suit for ejectment of a kaimi raiyat, on the ground that he had broken a condition of the contract on breach of which he was under the terms of a contract between him and the landlord liable to ejectment, after service of a notice purporting to have been given under Section 155 of the Bengal Tenancy Act.2. The Courts below concurred in dismissing the suit on the ground that the notice was not valid, and the plaintiff has appealed to this Court.3. Section 155 of the Bengal Tenancy Act lays down that a suit for ejectment of a tenant on the ground that he has broken a condition of the contract under which he is liable to be ejected, shall not be entertained, unless the landlord has served a notice on the tenant specifying the particular breach complained of, and where it is capable of remedy requiring the tenant to remedy the same, and in any case to pay reasonable compensation for the breach, and the tenant has failed to comply within a reasonable time with...
Tag this Judgment!Court : Kolkata
Reported in : 34Ind.Cas.548
1. This appeal arises out of a suit for rent. Various defences were raised, and the Court of first instance dismissed the suit. On appeal, that decree was confirmed, but on the ground that the suit was brought by the plaintiff, to he was a shebait of an idol to whom the property had been dedicated by a Will by the plaintiff's mother, without adding the idol as a party. But the plaintiff as shebait was entitled to maintain the suit. As pointed out by the Judicial Committee in the case of Jagadindra Nath Roy v. Hemanta Kurnari Debi 32 C. 129 (P.C ) : 7 Bom. L.R. 765 : 8 C.W.N. 809 : 1 A.L.J. 585 : 31 I.A. 203, the possession and management of the dedicated property belong to the shebait. And this carries with it the right to bring whatever suits are necessary for the protection of the property. Every such right of suit is vested in the shebait, not in the idol.'2. The plaintiff in the present case expressly stated in the first paragraph of his plaint that under a Will executed by his mot...
Tag this Judgment!Court : Kolkata
Reported in : 34Ind.Cas.851
1. These appeals arise out of suits for rent. A preliminary objection is taken to the hearing of the appeal, on the ground that a second at peal is barred under Section 153 of the Bengal Tenancy Act. But the question whether the defendants are entitled to get an abatement of rent or they are bound to pay the full rent was gone into by the lower Appellate Court, and a decree for the full rent claimed was passed. The decree decided the question of the amount of rent annually payable by the defendants and the preliminary objection must accordingly be overruled.2. Turning to the merits of the case it appears that the plaintiffs settled the lands in suit with the defendants. But defendants were obstructed in getting possession of the lands by the villagers, on the ground that they had a right of pasturage over the lands. One of the defendants thereupon brought a suit for declaration of title to and for recovery of possession of his share against the villagers, numbering about 200, and the l...
Tag this Judgment!Court : Kolkata
Reported in : 42Ind.Cas.466
1. In this case it appears that at the instance of two different judgment-creditors one and the same property was under attachment in the Court of the District Judge of Alipore and also in the Court of the Subordinate Judge of, that station. An application was made in the Court of the Subordinate Judge praying that proceedings should be taken for the sale of the property in that Court. Having regard to the provisions of Section 63 of the Code of Civil Procedure, the Subordinate Judge declined to proceed with the application in his Court. He was of opinion that such proceedings should be taken in the Court of the District Judge and being of this opinion he further dismissed the execution case then pending on his file Against his order an appeal was preferred to the District Judge. The District Judge agreed with the Subordinate Judge in holding that the proceeding for the sale of the property should be taken in his Court. But having regard to possible difficulties that might attend the r...
Tag this Judgment!Court : Kolkata
Reported in : 34Ind.Cas.228
Beachcroft, J.1. The Buriganga is a large river in the Dacca District. One of its tributaries, flowing into it from the north, is the Turag river. About seven miles from the Buriganga, the Turag bifurcates. The western branch, after bifurcation, appears to have been always known as the Turag and fell into the Buriganga in the neighbourhood of village Bhakurta. The eastern branch, to which or to parts of which different names have been given such as Saparia river, Mirpore river and Maspara river, joins the main river not very much further down. The plaintiffs are the owners of the fishery in the branch which went by the name of the Turag, while the defendants owned the Buriganga fishery, which included the channel in dispute.2. The western branch no longer falls into the Buriganga near Bhakurta. The mouth of that branch silted up many years ago and the Turag took a new course to the east and having joined the eastern branch near village Mirpore now discharges its waters into the Burigan...
Tag this Judgment!Court : Kolkata
Reported in : 38Ind.Cas.584
Greaves, J.1. This is an application made in a partition suit by the mortgagees of the plaintiffs' shares asking (i) to be added as parties and to be allowed to appear in all proceedings in this Court and before the Commissioner of partition and the Receiver at their own costs, such costs to be added to their claim as mortgagees, (ii) for revocation of an order of the 9th August 1915, directing (inter alia) a sale of the one-fourth share of the premises Nos. 4 and 5, Jackson Ghat Street, which is one of the properties to be partitioned in the suit for the purpose of defraying the costs of the suit. Other relief is also sought. The suit was instituted on the 17th May 1910. The mortgages were respectively executed on the 5th August 1910, the 26th July 1911, the 29th May 19 > 2 and the 30th August 1913, and purported to charge the plaintiffs' undivided half share in the estate of one Dinabandhu Das, which estate is the subject-matter of the partition suit.2. A decree was made in the suit ...
Tag this Judgment!Court : Kolkata
Reported in : 37Ind.Cas.515
1. This is a reference by the learned Sessions Judge of Hooghly in the matter of one Kristo Lall Mallik, who was prosecuted under Section 271 of the Bengal Municipal Act for haying disobeyed a requisition under Section 280 and sentenced to pay a fine. The learned Sessions Judge recommends that the conviction and sentence be set aside on two grounds, which he admits are technical. The first is that the prosecution was undertaken without the consent of the Commissioners. He concedes that, under Section 44, the Chairman could give such consent. It appears from Exhibit 3 in the case that the report of this offence was made by the outdoor inspector; that the columns of that form were duly filled up; and that in the remarks column occurred this remark: 'submitted to the District Magistrate, Hooghly, with a recommendation to prosecute the party under Sections 220, 271 of the Bengal Municipal Act.' That is signed by Mohendra Chandra Mitter, Chairman, Hooghly-Chinsurah Municipality. The learned...
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