Kolkata Court January 1917 Judgments

JoyanuddIn Khan Vs. JamiruddIn Sarkar

Court: Kolkata

Fletcher, J.1. This is a Rule calling upon the opposite party to shew cause why the order complained of should not be set aside. The present applicant is a decree-holder. He brought a suit on the 10th May 1911 against five persons to recover certain moneys due on a promissory note. The suit was decreed on compromise. The compromise petition was dated the 1st July 1911 and the decree passed on the terms of the compromise was dated the 10th July of the same year. Under the terms of the compromise, it was provided that a certain sum should be paid by each of the various defendants and by instalments and that, default being made in the payment of one of the instalments, the whole amount would become due. The decree itself stated the instalments but it omitted, by an error presumably, to state the condition as to the whole amount becoming due on default being made by the judgment-debtors in the payment of the instalments. An application was made for execution on the 10th July 1914 against a...

Kalandar Mandal Vs. Ajimudee Mandal

Court: Kolkata

Reported in: 40Ind.Cas.135

Beachcroft, J.1. In the suit out of which this appeal arises the plaintiff claimed a right of easement for catching fish in the surface water of some paddy land The plaintiff; has some paddy fields on the lower levels of a tract of paddy land and it has been found as a fact that for over 20 years he has openly, peaceably and uninterruptedly caught fish in an arah or trap which he has been setting on his own land. The defendant, it is alleged, set a similar trap by the side of a tank belonging to him and as he caught some of the fish, which would otherwise have come to plaintiff's trap, the latter brought the suit to establish his right of easement and for damages. The Munsif gave him a decree declaring his right to catch fish to be established, giving him Rs. 4 as damages and ordering issue of a permanent injunction restraining the defendant from catching fish in his trap.2. The Subordinate Judge on appeal, while finding that plaintiff had been catching fish in his trap for over 20 yea...

Upendralal Gupta and ors. Vs. Jogesh Chandra Roy

Court: Kolkata

Reported in: 38Ind.Cas.56

Fletcher, J.No. 15 of 19151. This is an appeal preferred by the defendants Nos. 1, 3 and 7 against the decision of the learned Subordinate Judge of Chittagong, dated the 26th August 1914, affirming the decision of the Munsif of the same place. The suit was brought by the plaintiff for enhancement of rent and for recovery of rent at the enhanced rate. The learned Munsif enhanced the rent from Rs. 411-8 0 per annum to Rs. 792. On appeal to the lower Appellate Court, the learned Subordinate Judge affirmed the decision of the Munsif. Against that decision, the present appellants have preferred this appeal to this Court.2. The tenure in respect of which the plaintiff sought to enhance the rent is governed by a document in writing or rather two documents in writing, namely, the patta executed by the landlord in favour of the tenure-holder and the kabuliyat executed by the tenure-holder in favour of the landlord. The first point that is raised in this appeal is that these documents did not in...

Raj Kumar Deoty Vs. Satish Chandra Ghosh

Court: Kolkata

Reported in: 40Ind.Cas.735

1. This is an application for the revocation of a sanction granted by the Subordinate Judge of Howrah. The sanction was granted in a suit brought by a lady of the name of Kali Dasi Dasi and her case was that a certain business was the exclusive property of her husband, while the case of the defendant, who is the brother of her deceased husband, was that it was the joint property of the two brothers. In the course of certain proceedings for the appointment of a Receiver it appears that the person whose prosecution has been directed, being the brother of the plaintiff, swore an affidavit to the effect that there are entries in the books of the business showing that the defendant was in fact a servant. Some, if not all, the books of business were apparently brought into Court but it is stated that no clear proof with regard to them was given, and it does not seem to be certain that all the books of the business were produced. It is in respect of this statement in the affidavit that the pr...

Srimati Karimunnessa Chowdhurani Widow of Syed Mir Alum Vs. Srimati Ek ...

Court: Kolkata

Reported in: 37Ind.Cas.904

Fletcher, J.1. These two appeals are preferred against a decision of the learned District Judge of Noakhali. The decision appealed against affirmed two other decisions, one of them being pronounced by the Subordinate Judge of Noakhali and the other being pronounced by the Munsif at Sudharam. The two cases in substance involve only one question and the rights of the parties must be governed according to the view that we take of a particular document called a waqf. The waqf in question is a document executed in the year 1291 by a Muhammadan lady named Srimati Budrunnessa Chowdhurani who was the daughter of Muhammad Afzul Chowdhuri and the wife of Sri Dowlut Gazi Chowdhuri. The deed after the appropriate recitals proceeds to state that the executant is in possession of the properties mentioned in the document. Then it states that she owes a particular debt of Rs. 310 but otherwise she is not indebted to anybody. Then the document runs in these terms:2. 'I have thought it proper that, in m...

ShamiruddIn Mandal Vs. Abdul Bari Mandal and ors.

Court: Kolkata

Reported in: 38Ind.Cas.25

Beachcroft, J.1. This is an appeal by the plaintiff. He brought a suit to recover possession of certain property which had come down from his ancestor Dhonai Mandal on the ground that he had been dispossessed by other members of the family. Dhonai had two sons, Tar Mamud and Jaker Mandal. The plaintiff was the son of Tar Mamud. The suit relates to property which descended to Jakir Mandal.2. The Munsif dismissed the suit on the ground of limitation as well as on the merits. On appeal, the District Judge without going into the merits, dismissed the suit on the ground of limitation.3. It is now argued that the learned Judge was wrong in the view that he took of the question of limitation. The only point argued here is that under Article 127 of the Limitation Act, the onus was wrongly thrown on the plaintiff by the learned Judge.4. In my opinion, Article 127 does not apply to this case in which the parties are Muhammadans. It was held in the case of Mahomed Ahram Shaha v. Anarbi Chowdhrani...

Hari Mohan Pal and anr. Vs. Kailash Chndra Dhur and

Court: Kolkata

Reported in: 37Ind.Cas.983

1. The plaintiff-respondent appears to have purchased the lands in dispute, which form part of a revenue-paying estate, from the proprietors of the estate. The estate was sold for arrears of revenue. The right, therefore, that the plaintiff had in the lands under his purchase was extinguished by the sale. The learned Subordinate Judge was in error in holding that the plainttif had some right even after the sale. It is true that the defendant, who represents the purchaser at the revenue sale, in certain cess-return admitted that the plaintiff had a howla tenure. But a mere admission cannot create a title. The admission would have been binding upon the defendant had the plaintiff really any howla tenure. But it is not alleged, nor is there any evidence to show, that the plaintiff had any right in the lands, apart from the right which was purchased by him from the proprietors under the kobala of 9th Assin 1275. That right, as we have said, passed by the revenue sale, and that being so we ...

Thakurdas Moti Lal Vs. Joseph Iskender and ors.

Court: Kolkata

Reported in: 41Ind.Cas.516

Sanderson, C.J.1. This is an appeal from a judgment of Mr. Justice Chaudhuri, whereby he granted the application of Joseph Iskender. That application was made asking for an order that the Comptroller-General of Accounts for the time being of the Government of India and the Secretary and the Treasurer for the time being of the Bank of Bengal with the privity of the Accountant-General of this Court do out of the funds standing to the credit of this suit (No. 617 of 1915), viz., Rs. 29, 894-5-11 pay to the plaintiff the sum of Rs. 16, 519-7-0, being the decretal amount due to him under the decree made in this suit, dated 16th December 1915, with interest.2. One of the points which has been raised in the course of the argument is in my judgment of considerable importance, and in order that it may be correctly appreciated, it is necessary to look at the facts carefully and in some detail.3. The facts, as stated by the learned Counsel for the appellant, Mr. Sarkar, in opening the appeal and ...

Girindra Kishore Bhowmik Vs. Nanda Lal Singh Roy

Court: Kolkata

Reported in: 38Ind.Cas.63

1. The question raised in this case is whether an appeal lies against an order dismissing an application under Order XXI, Rule 90, Code of Civil Procedure, for non-appearance of the applicant. If the order is one refusing to set aside a sale under Order XXI, Rule 92, Code of Civil Procedure, then an appeal would lie under Order XLIII, Rule 1(j). We think that the order under consideration is an order of that description. A. similar view was taken under the old Code in the case of Brojo Sundar Roy v. Moti Lal Mojumdar 5 Ind. Cas. 493 : 14 C.W.N. 573 : 13 C.L.J. 153, It is true that in that case the order expressly confirmed the sale while dismissing the application for default. In the present case, the sale had already been confirmed; and the Court by this order refused the application to set aside the sale and thereby confirmed its previous order. We think that it amounts to an order under Order XXI, Rule 92, Code of Civil Procedure. We have been referred to the case of Charu Chandra G...