Kolkata Court August 1920 Judgments
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Tenaram Mondal Vs. Emperor
Court: Kolkata
Decided on: Aug-16-1920
Reported in: AIR1921Cal257,61Ind.Cas.1003
1. This appeal is by one Tenaram Mondal, who has been convicted tinder Section 304, Indian Penal Code, and sentenced to five years' rigorous imprisonment.2. He was tried with the aid of the Jury, and the Jury returned a unanimous verdict of guilty under the second portion of Section 304. The Judge, agreeing with the Jury, convicted the appellant and sentenced him as stated above.3. The appeal to this Court, therefore, is upon the ground of misdirection to the Jury.4. The two principal points on which the Judge is said to have misdirected the Jury are as follows: The first is that certain material witnesses named in the First Information and also in the evidence, who were examined by the Police Sub-Inspector on the day following the date of occurrence, were not examined at the trial and that the Judge did not tell the Jury that they might infer that the evidence of these witnessed, who could have been but were not called would have been, unfavourable to the prosecution.5. It was stated ...
Tarakeswar Pal Chowdhury Vs. Srish Chandra Ghosh Mandal and ors.
Court: Kolkata
Decided on: Aug-14-1920
Reported in: 80Ind.Cas.628
1. These two appeals are directed against an order of remand made by the Subordinate Judge in a suit for recovery of possession of immoveable property on establishment of title. The subject-matter of the litigation is a tank with its banks, situated within the property of the plaintiff. The defendants purchased the tank under two conveyances, dated the 4th and 11th November 1906 from persons who claimed to hold under two grants made in favour of their predecessors on the 6th October 1836 and 16th July 1849. The plaintiff alleged that as the vendors of the defendants had no transferable right, they were liable to be ejected as trespassers. The primary Court held that the defendants had acquired a valid title by their purchase and dismissed the claim for ejectment, subject to a declaration in favour of plaintiff in respect of his title as the superior landlord. The Subordinate Judge has remanded the case for further investigation. The plaintiff as also the defendants are dissatisfied wit...
Soudamini Dasya Choudhurany, Executrix to the Estate of Her Husband, L ...
Court: Kolkata
Decided on: Aug-13-1920
Reported in: 65Ind.Cas.76
Asutosh Mookerjee, Acting, C.J.1. This is an appeal by the plaintiff in a suit for declaration that the disputed lands are included in a permanently settled Taluk Mohammad Hayat held by her, and that the proceedings taken by the Secretary of State for India in Council for assessment of revenue thereon are ultra vires. The Court of first instance dismissed the said on the merits. Upon appeal that decree has been affirmed by the Subordinate Judge. On the present appeal, that decree has been assailed on three grounds: First, that the proceedings under Act IX of 1847 were ultra vires, because they were not based on a special and new survey carried out, as contemplated in Section 3; secondly, that the proceedings under Act IX of 1847 were ultra vires, because the notice which was at first served upon the appellant was subsequently modified, and the quantity of land which was ultimately held liable to assessment with revenue was much larger than the quantity mentioned in the initial notice, ...
Barendra Nath Mitter Vs. MartIn and Co. and ors.
Court: Kolkata
Decided on: Aug-13-1920
Reported in: AIR1921Cal801,62Ind.Cas.167
Mookerjee, Actg., C.J.1. This is an appeal from the judgment of Mr. Justice Buck-land on an application for the distribution of the surplus sale-proceeds in a mortgage suit. The facts material for the determination of the questions raised before us are not in dispute and may be briefly recited.2. On the 14th May 1909 Mallik executed in favour of the Mitters a mortgage of immoveable property situated partly within and partly beyond the local limits of the ordinary original civil jurisdiction of this Court On the 1st September 1910 the Mitters instituted a suit to enforce their security, The preliminary decree was made on the 28th April 1911 and was followed by the final decree on the 12th July 1912. The sale was held in due course, on the 23rd November 1918. When the amount due on the mortgage in suit had been ascertained on the 27th August 1919, it was found that a considerable surplus would be left after satisfaction of the claim of the mortgagees. Meanwhile, after the preliminary dec...
Kamini Kumar Taluqdar Vs. Shib Sundari Devi
Court: Kolkata
Decided on: Aug-13-1920
Reported in: 62Ind.Cas.770
1. This Rule was directed against an order appointing a guardian ad litem of the petitioner, who is defendant No. 2, in a suit in which his wife is the plaintiff. The guardian ad litem has been appointed on the allegation of the plaintiff that the defendant No. 2 is of unsound mind, but before such a guardian ad litem is appointed, it is necessary that the provisions of Rule 3, Order XXXl, (which are made applicable to the case of a person of unsound mind by Rule 15) should be complied with. No affidavit has been filed in support of the application, verifying the fact that the proposed guardian has no interest adverse to the defendant, nor has any notice been served on the defendant, But what is more important is that before the defendant can be treated as of unsound mind under Rule 15, the provisions of that rule must be complied with. We understand that this defendant has never been adjudged to be of unsound mind. It is, therefore, necessary that there should be a finding by the Cour...
Kali Nath Hakrabartty and ors. Vs. Naimudd and anr.
Court: Kolkata
Decided on: Aug-13-1920
Reported in: 60Ind.Cas.711
Asutosh Mookerjee, Acting C.J.1. This is an appeal, under Clause 15 of the Letters Patent from, the judgment of Mr. Justice Newbould in a suit for declaration of a right of way, and for an injuction to compel the defendants to remove an obstruction which they have erected across it.2. The Courts below have found in favour of the plaintiffs upon the existence of the way as alleged by them. But they have dismissed the suit on the technical ground that the plaintiffs had not described the way as a public pathway, a established by the evidence. That decree of dismissal has been affirmed by Mr. Justice Newbould on the ground that the plaintiffs have not suffered special damage as they would have to establish if the way was a public path, because the obstruction to the road had been placed at some distance from their house. In our opinion, the suit should not have been dismissed on a technical ground as has been done by all the Courts.3. The judgment makes it plain that there is a way as all...
Hari Mohan Modak Vs. Rameswar Das and ors.
Court: Kolkata
Decided on: Aug-12-1920
Reported in: 64Ind.Cas.737
1. This appeal arises out of a suit in ejectment. The First Court gave the plaintiff a modified decree. On appeal it was held that the plaintiff cannot eject but can only get extra rent on the land on which the defendant is found to have encroached. Against this decision the defendant No. 1 has appealed.2. The first point taken is that the plaintiff was not entitled to maintain the suit as he was not legally appointed a shebdit. It is found, however, that he is the de facto manager of the property and has been recognised as such by the parties concerned, and that is sufficient to enable him to bring a suit in ejectment to protest the idol's property against trespass.3. The next point taken is that is deciding the suit the lower Appellate Court was Wrong in looking to the area of the land leased instead of the boundaries, and our attention is drawn to the decision of their Lordships of the Judicial Committee in the case of Durga Prasad Singh v. Rajendra Narayan Bagchi 21 Ind. Cas. 750 :...
Nibaran Chandra Mukherjee Vs. Sital Chandra Bag
Court: Kolkata
Decided on: Aug-12-1920
Reported in: AIR1921Cal201,62Ind.Cas.416
1. The opposite party in this case charged the petitioner with an offence under Section 406, Indian Penal Code. The matter was inquired into by the Magistrate and he dismissed the case under Section 203, Criminal Procedure Code, on the ground that it was a case between partners and should be decided by the Civil Court.2. The complainant thereupon moved the Sessions Judge, who directed a further inquiry into the matter. Accordingly a further inquiry was held by the Magistrate and he again, after taking some evidence, dismissed the complaint under Section 203, Criminal Procedure Code. The complainant there, upon again moved the Sessions Judge and the latter held that the Magistrate could not dismiss the complaint under Section 203 and that he was bound to issue process against the accused.3. This Rule was obtained by the petitioner against that order.4. The complainant has appeared to show cause.5. The learned Counsel for the complainant has relied strongly upon the case of Brij Kishore ...
Upendra Nath Saha Vs. Adhar Chandra Saha and ors.
Court: Kolkata
Decided on: Aug-11-1920
Reported in: 63Ind.Cas.436
1. This appeal arises out of a suit brought by the plaintiff for declaration of his title to and recovery of possession of 7 cottas 1 chattak of land. One of the material issued decided in the Court below was the question whether the compromise arrived at in the previous suit between the present defendant No. 1, who was the plaintiff in that suit, and the present defendants Nos. 2 to 6, who were the defendants in that suit, was a collusive and fraudulent transaction. In a remand judgment extending over four printed pages, the learned Subordinate Judge in the Court of first instance held that the aforesaid compromise was in fast tainted by collusion and fraud. On appeal the learned District Judge reverses that finding in some four sentences, in which he in fast sets out no part of the evidence which leads him to the conclusion at which he has arrived. It is true that he says that he has followed the learned Subordinate Judge's argument and has examined the evidence on the point. But thi...
Haran Sheikh and ors. Vs. Ramesh Chandra Bhattacharjee and ors.
Court: Kolkata
Decided on: Aug-11-1920
Reported in: AIR1921Cal622,62Ind.Cas.425
Asutosh Mookerjee, Acting C.J.1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Beachcroft in a suit for declaration of a right of way as a village road over the lands mentioned in the plaint and for removal of an obstruction thereon. The plaintiffs sued in a representative capacity, and in the Court of first instance an objection was taken that one of the persons interested in the servient tenement, by name Fanindra Narayan Choudhury, had not been added as a party to the suit. The Trial Court overruled this objection on the ground that it had not been taken at the earliest possible stage of the suit, although there does not appear to have been any dispute that the person named was really one of the joint owners of the alleged servient tenement. The suit was then tried on the merits and a declaration was made in favour of the plaintiffs. On appeal, amongst other grounds, the objection as to defect of parties was raised, but it was overruled, an...
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