Kolkata Court January 1918 Judgments
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Panchanan Sen Vs. Madhu Sudan Mallik and ors.
Court: Kolkata
Decided on: Jan-25-1918
Reported in: 44Ind.Cas.496
1. This Rule is directed against an order by which the District Judge of Nadia disallows a certain portion of the remuneration claimed by a Commissioner for local investigation. In making the order he has done the District Judge appears to have acted under a misconception of the Rules and Circular Orders of this Court by which the District Judge is given certain powers in the matter of the appointment of Commissioner to make local enquiries; and in this connection we should refer him to the case of Peari Mohan Kandu v. Mohini Kanta Saha Chowdhary 34 Ind. Cas. 855. We are informed that as a matter of fact the parties to the suit in question do not take exception to the bill that has been submitted by the Commissioner and are prepared to pay him the remuneration which he claims. In any case the matter is one which must be dealt with by the Subordinate Judge in whose Court the suit is pending. We, therefore, set aside the District Judge's order now complained of and remit the matter to th...
Abinash Chandra Mandal and ors. Vs. Lokenath Gani
Court: Kolkata
Decided on: Jan-25-1918
Reported in: AIR1919Cal465(1),44Ind.Cas.591
1. In this case we have read the explanation of the Magistrate and have heard the learned Pleader for the opposite party but we think that the Rule should be made absolute. It is inconvenient that proceedings under Section 107 and also under Section 144 or 145 should be going on at the same time. In this case it appears that Moti Lal Mandal, one of the petitioners, was the first to go to the Magistrate and apply for his assistance in the matter of possession of this land And the thatching of grass thereon. Then proceedings were taken and an injunction was issued under Section 144 and the petitioners were called on under Section 107, a procedure which in effect debarred them from giving evidence of the possession which they had been the first to allege. The injunction under Section 144 will, we understand, expire at the end of this month. It will be no more appropriate, if there is any present apprehension of a breach of the peace, for the Magistrate to take proceedings under Section 14...
Kamala Kanta Sen Vs. Durga Kumar Sen and ors.
Court: Kolkata
Decided on: Jan-25-1918
Reported in: AIR1919Cal473,44Ind.Cas.1007
Richardson, J.1. The petitioner in this Rule preferred a claim under Order XXI, Rule 58, Code of Civil Procedure, in respect of a property which had been attached by the opposite party in execution of a decree. The petitioner's plea was that he had purchased this property from the judgment-debtor under the decree prior to the attachment and was in possession of the property on his own account. The learned Subordinate Judge in the Court below states in his order under appeal that the petitioner has proved his Kobala. There is, however, no clear finding in the order whether the petitioner is or is not in possession of the property on his own account. On the strength of the terms on which the property was purchased as evidenced by the conveyance, the learned Subordinate Judge has made a conditional order. It appears from the conveyance that as part of the consideration the petitioner gave an undertaking to the vendor to pay the sum of Rs. 2,500 on account of the Execution Case No. 1392 of...
Rebati Mohan Das Vs. Nadiabashi De and anr.
Court: Kolkata
Decided on: Jan-24-1918
Reported in: 44Ind.Cas.521
Richardson, J.1. This second appeal is preferred by defendants Nos. 1 and 2 in a suit for recovery of possession of certain land. At the date of the suit the defendant No. 2 was a tenant of defendant No. 1. We are informed that there is reason to believe that defendant No. 2 has since purchased the rights of defendant No. 1. As to the facts found, it appears that on the 31st March 1895, one Jamaraddi mortgaged the property in suit with other properties to the plaintiffs. The property in suit is a raiyati holding.2. On the 6th May 1896 Hara Chandra Das, the father of defendant No. 1, in execution of a money-decree obtained by him against the mortgagor purchased the property and subsequently in the same year obtained actual possession from the Court.3. In 1907 the plaintiff brought a suit upon the mortgage of 1895 against the heirs of the mortgagor and others. To that suit he did not make the father of defendant No. 1 a party. Accordingly on the 29th May 1907 Hara Chandra Das applied by ...
ishan Chandra Samui Vs. Dulal Chandra De
Court: Kolkata
Decided on: Jan-22-1918
Reported in: AIR1919Cal50,44Ind.Cas.220
Richardson, J.1. The question in this appeal is whether an application for execution is barred by limitation under the provisions of Article 182 of the First Schedule of the Indian Limitation Act. The application was made on the 25th March 19l6. The previous application made on the 12th May 1914 was withdrawn by the decree-holders on the 22nd August 1914, the order then made by the Court being, 'the execution case is dismissed for non-prosecution and that the objection case of the judgment-debtor is also dismissed for the present.' Now with reference to the application of the 25th March 1916 the judgment debtor pleaded that the previous application of the 12th May 1914 was out of time. It is conceded for the decree-holder that amongst the objections taken to that application there was an objection on the ground of limitation. Regard being had to the way in which the case terminated, it cannot be said that that objection was adjudicated upon. That being so, no question of res judicata, ...
Raja Sashishekhareswar Rey Bahadur Vs. Rani Hemangini Debi and ors. an ...
Court: Kolkata
Decided on: Jan-22-1918
Reported in: 44Ind.Cas.689
1. The plaintiff and the principal defendant No. 1 are co-sharers in certain lands. The lands are described in two schedules attached to the plaint. The land entered in Schedule (ka) is described as' appertaining to the demarcated land of Touzi No. 1576 and the land in Schedule (kha) is described as appertaining to Touzi No. 218. In the former estate the share of the plaintiffs is 15 annas 8 gandas 1 kara 1 kranti and in the latter the share of the plaintiffs is one-sixth. In Estate No. 1576 the remaining share belongs to defendant No. 1 and in Estate No. 218 defendant No. 1 has a two-third share. The plaintiffs sued to recover joint possession with the defendant No. 1 of the lands of these two schedules on the footing that they had been ousted therefrom by defendant No. 1. There is abundant authority on the principle governing oases of this kind between co-sharers. The difficulty arises in the application of the principle to the facts of particular cases. In the present case it is cle...
Harapali Sarkar and ors. Vs. Syed Rajabali Mia and anr. and Annapurna ...
Court: Kolkata
Decided on: Jan-22-1918
Reported in: AIR1919Cal998,44Ind.Cas.721
Richardson, J.1. The holding to which this appeal relates originally belonged to two brothers 'Baikunto and Gopal. Gopal died, we are informed, about 20 years ago leaving a widow named Annapurna. Baikunto also died some years later leaving a widow. Before his death Baikunto had mortgaged the entire holding to the predecessor-in-interest of the principal defendants who are the appellants before us. The mortgage was a usufructuary mortgage and the mortgagee obtained possession. Annapurna, however, brought a suit against the mortgagee and succeeded in regaining possession of a moiety of the holding as Gopal's widow. The mortgagee or his representative seems to have remained in possession of the remaining moiety of the holding. Then it appears that by an arrangement with the landlord Annapurna's half share of the holding was made a separate tenancy so that she became the sole tenant for that half. The tenant of the remaining half of the original holding would be the heir of Baikuuto after ...
Alok Chand Pal and ors. Vs. Jaluram Namasut and ors.
Court: Kolkata
Decided on: Jan-21-1918
Reported in: 45Ind.Cas.762
1. This appeal arises out of an application for execution of a rent decree by attachment and sale of the holding. In the Courts below the case was treated practically as one falling under the provisions of the Bengal Tenancy Act, and the learned District Judge held that the holding not being transferable and the decree in his view being one not for rent but for money, neither the whole of the holding nor the 8-annas share therein, that is to say, the share corresponding with the share of the executing decree-holder could be sold. But the case comes from the District of Sylhet and is, therefore, governed by the provisions of Bengal Act VIII of 1869. Whether it is, as the District Judge supposed, a decree merely for the co-sharer landlord's share of the rent, or a decree for the whole rent due on the holding, it must be dealt with under the provisions of the Act which we have just cited. In the suit brought by the co-sharer landlord to which all hia co-sharers, it appears, were parties, ...
Srimati Saidunnessa Vs. Tejendra Chandra Dhar and ors.
Court: Kolkata
Decided on: Jan-21-1918
Reported in: 44Ind.Cas.398
Fletcher, J.1. A preliminary objection has been taken to the hearing of this appeal on the ground that the appellant has not paid the appropriate Court-fee. The Court-fee paid on the memo of appeal was a Court-fee of Rs. 10 only and it was paid with a distinct statement on the memo of appeal which the learned Vakil for the appellant tells us was added subsequently--although the memo does not how on what date that addition was made--that the fee payable was under Article 17 (iii) of Schedule II to the Court Fees Act. Now, Article 17 (iii) of Schedule II to the Court Fees Act states that on a plaint or memo of appeal to obtain a declaratory decree where no consequential relief is prayed the fee payable is Rs. 10. The plaint in this case as amended in the Court below shows that that was not the nature of the present suit. Not only three declarations were asked for, but the plaintiff prayed for a perpetual injunction. It is quite clear that that is not a suit for declaratory decree where n...
Satish Chandra Sarkar and ors. Vs. Brojo Gopal Dutta and ors.
Court: Kolkata
Decided on: Jan-18-1918
Reported in: 46Ind.Cas.104
Richardson, J.1. The suit out of which this appeal arises was a suit for a half share of a holding comprising twelve bighas odd, which stood originally in the name of one Jagannath Mitra. The last male holder of the entirety was Ramcharan Mitra. On his death the holding devolved as to half on his son Bepin Behary and as to the other half on his son Karunamoy. The sequence of the subsequent events and transactions is as follows:2. On the 30th Agrahan 1291 (November 1884) Bepin Behary having died, his widow Giribala, who succeeded him, sold his or her half share to the father of defendant No. 1 and his co-sharers, defendants Nos. 4 and 5. As to this half there is now no dispute that it is in the possession of those defendants.3. As to the other half share which plaintiffs seek to recover, on Karunamoy's death unmarried it went to his mother Bimola (Ramcharan's widow) and on her death was inherited by Asutosh Haldar, her grandson by a daughter named Niroda. Asutosh Haldar was then a minor...