Kolkata Court June 1916 Judgments
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Madhab Chandra Mandal and ors. Vs. Nagendra Nath Sen and ors.
Court: Kolkata
Decided on: Jun-08-1916
Reported in: 34Ind.Cas.841
John Woodroffe, J.1. In this case the first Court has found the plaintiffs' title and the second Court dismissed the suit, on the ground that the plaintiffs had not shown that they had been in possession of the jalkar within 12 years of the suit. This finding has been impugned, upon the ground that it is not applicable to a case such as this is alleged to be-a case in which there has been, it is said, an assertion of the incorporeal right of fishery and the question at issue properly was whether the defendants had acquired a right by adverse possession, and not whether the plaintiffs had been in possession within 12 years of the date of suit. It is said that the mere exercise of the right of fishery would not affect the plaintiffs, except either to establish easement in favour of the defendants or to establish adverse possession which had not been found. But this is not the case here, where the question is whether the jalkar belongs to the plaintiffs or the defendant as persons claimin...
Deodhari Pandey and ors. Vs. Dayanand Pandey and ors.
Court: Kolkata
Decided on: Jun-07-1916
Reported in: 35Ind.Cas.610
1. The main points which are urged in this appeal are, first, that the learned Judge is in error in holding that the sale-deed executed by Jugal Kishore conveyed no title to the plaintiff notwithstanding the registration and that it was open to the defendants Nos. 1 and 2 to ask the Court to find that the sale was also in favour of Ambica and that his name was omitted by fraud without bringing a separate suit for declaration of their title, and that it was necessary for them, if they so desired to question the validity of the kobala, to sue to have it set aside or modified; but as they have not done so and as the period of limitation has expired the defence cannot now be taken. In our opinion there is no force in this argument, for the Limitation Act is an Act which is applicable to a suit brought by the plaintiff; a defendant will not be precluded from setting up a right -by way of defence even if he could not have done so as plaintiff by way of substantive claim. In the present case,...
Makhlachor Rahman and ors. Vs. Faizur Rahman Chaudhury and ors.
Court: Kolkata
Decided on: Jun-07-1916
Reported in: 35Ind.Cas.880
1. This appeal arises out of a suit brought under the provisions of Section 539 of Act XIV of 1FS2 (Code of Civil Procedure) in respect of an endowment alleged to be one for public charitable and religious purposes. The plaintiffs, who are the descendants of one Ahmed Shah, alleged that the latter founded a mosque and obtained 4 droves of rent-free land under a sanad granted by Nawab Hussain Coolie Khan sometime before the year 1767 for the maintenance of the mosque and for other religious and charitable purposes connected with the same, that this sanad was confirmed by another sanad granted on the 24th January 1787 and that for a long time past the trust was not being properly administered and the descendants of Ahmed Shah were alienating the endowed properties. The plaintiff accordingly brought that suit with the sanction of the Advocate-General of Bengal, praying that proper persons might be appointed as trustees after the removal of those who professed to act as trustees, that a sc...
Raimohan Karmokar and anr. Vs. Emperor
Court: Kolkata
Decided on: Jun-07-1916
Reported in: 35Ind.Cas.969
1. This is a reference by the Sessions Judge of Dacca, under Section 438, Criminal Procedure Code, in the matter of a proceeding under Section 133.2. On the 21st February 1916 the President, Panchayet of the Hashara Union, reported to the Sub-Divisional Magistrate of Munshigunge that the halat from the Hashara Bazar to Teghoria had been destroyed by several persons (six of whom were mentioned in his list, 'who had either dug earth therefrom, or excavated a pond, or had ploughed up the land and included it in their holding.' On the 4th March the Magistrate directed proceedings to be drawn up against all the persons to show cause why they should not remove the obstructions mentioned; by the same order he fixed the 24th March for the hearing of the case. A proceeding was then drawn up against the six persons jointly requiring them to remove the obstructions mentioned within seven days or to show cause on the 24th March why the order should not be confirmed. The order, however, in the form...
Jadav Chandra Sarkar Vs. Kailash Chandra Singh and Kshetra Nath Sarkar
Court: Kolkata
Decided on: Jun-07-1916
Reported in: 34Ind.Cas.929
1. One Janky Saha brought a suit against the plaintiff as defendant No. 1, the defendant No. 1 as defendant No. 2, and the defendant No. 2 as defendant No. 3 for money said to have been borrowed by the said defendants. Defendant No. 3 was made defendant No. 4 as the gomasta of the other defendants. The defendants Nos. 1, 2 and 4 denied the loans and defendant No. 3 did not appear. The issues framed were:1. Had the defendants the alleged transaction with the plaintiff and did they borrow the sums as stated in the plaint?2. Is the claim against defendant No. 1 barred by limitation?3. Are the defendants Nos. 2 and 4 liable to the plaintiff for the alleged debts?4. What amount, if any, can the plaintiff recover from any and which of the defend-ants?2. It was found that defendant No. 2 was not liable, that defendant No. 4 was a mere gomasta and was not liable, that defendant No. 1 (the plaintiff in this case) and defendant No. 3 (defendant No. 2 in this case) were liable. The decree was exe...
Pran Krishna Saha and Ofat Pramanik Vs. Kripa Nath Chowdhury and ors.,
Court: Kolkata
Decided on: Jun-06-1916
Reported in: 35Ind.Cas.76
N.R. Chatterjea, J.1. These appeals arise out of suits for recovery of possession of the lands in dispute on declaration of the plaintiff's title thereto.2. The lauds were recorded in the Record of Rights in the first case, as the brohmotter and lakheraj lands of the defendants No. 1 to 3 and in the second as the jotes of defendants Nos. 1 to 5. The plaintiff-claimed the lands as part of his patni and dar-patni taruf, it being alleged that the lands were settled with Other persons who were dispossessed by the defendants and that the former thereupon relinquished the lands in favour of the plaintiff.3. It appears that the Record of Rights were finally published on the 30th January 1910and the 2nd February 1910 was the date of certificate of final publication. The Courts below have dismissed the suits on the ground that as they raise issues coming within Clauses (b) and (c) of Section 111B of the Bengal Tenancy Act, they are barred by the provisions of the section, having been instituted...
Ali Sheikh Vs. Imam Ali Sarkar and anr.
Court: Kolkata
Decided on: Jun-06-1916
Reported in: 35Ind.Cas.102
1. The plaintiffs Nos. 1, 2 and 3 executed a hot kobala in respect of an ancestral holding of their own in favour of defendant No. 1. In consequence of there being no custom in the locality of a transfer of such holdings, it is said that the device of a hot kobala was adopted although the transaction was a sale. The first Court held that no evidence was admissible to prove that, although the document purported to be a hot kobala, the transaction was in reality a sale. The second Court held under Section 92 of the Evidence Act that evidence to prove that it was a kobala was not admissible. It finds, however, from the conduct of the parties, that the kot kobala was really intended to operate as a kobala.2. There is some divergence of opinion in the different High Courts with regard to the question, whether evidence is admissible to prove that a document purporting to be a mortgage is really a sale. In our Court, however, there is a preponderance of authority on the point that evidence of...
Srimati Priya Sakhi Debi Vs. Bireshwar Samanta and ors.
Court: Kolkata
Decided on: Jun-06-1916
Reported in: 37Ind.Cas.277
Sanderson, C.J.1. This is an appeal by the plaintiff from the judgment of Mr. Justice Fletcher See 28 Ind. Cas. 917---Ed, whereby he set aside the judgment and decree of the Subordinate Judge of Burdwan.2. The action was brought to enforce a mortgage-bond, dated the 27th June 1887, executed in favour of the plaintiff by the original defendants Nos. 1 and 2. Under the bond the principal was to be paid by instalments and it was provided that the whole amount remaining unpaid should become payable upon default in payment of any one of the instalments with interest at 2 per cent, per mensem. One of the instalments was not paid on 11th February 1893; there was, however, a payment pf interest on 18th October 1893 and the suit was brought on the 22nd August 1905.3. The dispute in this case relates to certain land which has been described as plot No. 1. It appears that on 16th February 1894, this plot of land was sold by the, then owners, called Mullick, to the predecessor-in-title of defendan...
Chintamoni Patni and anr. Vs. Tarak Chandra Goswami Minor Represented ...
Court: Kolkata
Decided on: Jun-05-1916
Reported in: 35Ind.Cas.17
1. In this case it appears that a certain Hindu widow died sometime about the year 1910, leaving certain ornaments and also a considerable sum in cash. Upon her death there followed certain proceeding under Act XIX of 1841 between the present plaintiffs-appellants, who are stated to be the sons of the widow's husband's brother, and the defendant-respondent, who is stated to be a descendant of her spiritual guide. In these proceedings the District Judge made over the properties to the present plaintiffs. The defendant thereupon made an application to this Court and that application resulted in the setting aside of the proceedings taken under Act XIX of 1841, in a direction that the parties should establish their title in the Civil Court and in the following order: 'The Court will, no doubt, take the steps necessary for the protection of the property pending the disposal of the suit.' The ornaments were thereupon returned by the plaintiff and are now in the hands of the Receiver appointe...
Harendra Chandra Bhattacharjee Vs. Gagan Chandra Das
Court: Kolkata
Decided on: Jun-05-1916
Reported in: 35Ind.Cas.177
1. This is a reference made in connection with an application for execution of a decree passed on the 19th December 1911. This application was the second application for the execution of the decree, and it was made on the 28th January 1916--more than three years after the first application which was made on the 7th January 1913. The decree-holder, however, alleged that there was a payment of Re. 1 by the judgment-debtor on the 27th August 1915, that is, within three years of the first application for execution. It has been found by the Munsif that the payment of Re. 1 was, in fact, made by the judgment-debtor as alleged by the decree-holder. But there is nothing to show that it was paid by way of interest and the decree did not bear any interest. We are of opinion that, although the decree-holder may either apply to certify the payment before execution or may do so in his application for execution of the decree, the provisions of Section 20 of the Indian Limitation Act are in no way af...
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