Kolkata Court August 1920 Judgments
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Sheikh Kalu Sharif and ors. Vs. Abhoy Charan Karmokar
Court: Kolkata
Decided on: Aug-11-1920
Reported in: 62Ind.Cas.445
Mookerjee, Acting C.J.1. This is an appeal under Clause 15 of the Letters Patent from the judgment of Mr. Justice Walmsley in a suit for recovery of possession of land upon declaration of title, The subject-matter of the litigation is an occupancy holding which belonged to one Salimuddi Sharip. the plaintiff purchased it in 1910 in execution of a decree, and the sale was made expressly subject to a mortgage in favour of one Mendu Khan. Mendu Khan subsequently sued to enforce his security; but in that suit the original mortgagor alone was joined as a party; the plaintiff, for some unexplained reason, was not joined as a defendant. A. decree was obtained in due course by the mortgagee and at the execution sale, which followed, the mortgagee became the purchaser. Subsequently he transferred the property to the third defendant, from whom the plaintiff now seeks to recover possession.2. The Court of first instance held that the plaintiff was entitled to a decree for possession without redee...
Har Chandra Roy and ors. Vs. Mohamad Hasim and ors.
Court: Kolkata
Decided on: Aug-10-1920
Reported in: AIR1921Cal554,66Ind.Cas.312
Asutosh Mookerjee, Acting. C.J.1. This is an appeal by the plaintiffs in a suit to enforce a mortgage security. The mortgage was granted on the 9th February 1904 by a man named Torapali Bhunya, and the mortgage money was repayable on the 17th October 1904. It is alleged that two, if not three, sums were paid in part satisfaction of the sum due on the mortgage. The plaintiff instituted the present suit on the 30th October 1916, against persons, who, they alleged, were represent-actives-in-interest of the original mortgagor. The defendants pleaded that all the heirs who were in enjoyment of the properly left by the mortgagor had not been made parties to the suit and, consequently, the suit should be dismissed for non-joinder of parties. They did not, however, state the names and addresses of the parties who, in their opinion, should have been joined. Thereupon, an issue was raised to the following effect: 'Is the suit bad for defeat of parties?' The Subordinate Judge held on the evidence...
Nilu Roy Vs. Asirbad Mandal and anr.
Court: Kolkata
Decided on: Aug-10-1920
Reported in: AIR1921Cal321,60Ind.Cas.809
Asutosh Mookerjee, Acting C.J.1. This is an appeal under Order XLIII, Rule 1, Clause (u), of the civil Procedure Code, from an order of remand made under Order XLI, Rule 23, in a suit to enforce a mortgage-security. The defendant executed an installment mortgage bond in favour of the father of the plaintiffs on the 25th June 1900, in respect of his share in the disputed property. The bond provided that, if default was made in the payment of two successive installments, the entire sum would become recoverable. On the 30th November 1917, the plaintiffs, upon the allegation that Bush default had been made-, instituted the present suit for realization of their dues by sale of the hypothecated property. It appears that on the is February 1899 the defendant and his brother, now deceased, had executed another simple mortgage in favour, of the father of the plaintiffs in respect of the entire property. In 1911 the mortgagee sued to enforce (hat mortgage and on the 27th November 1911 obtained a...
Kandarpa Nag Vs. Banwari Lal Nag and ors.
Court: Kolkata
Decided on: Aug-10-1920
Reported in: AIR1921Cal356(1),60Ind.Cas.864
Asutosh Mookerjee, Acting C.J.1. This is an appeal by the plaintiff in a suit for recovery of possession of land upon declaration of title. The disputed property belonged to one Dina Nath Nag who left four sons, Kandarpa Nag (the plaintiff), Banwari Lal Nag (the first defendant), pasupati Nag (the second defendant) and Sasi Bhusan Nag, since decayed. The third and fourth defendants hold a decree for money against the Nag brothers and in execution thereof purchased the property at an auction-sale hold in 1911. The case for the plaintiff is that, as the ancsstral homestead of the Nags was situated on the property sold, the execution-purchasers agreed, on their request, to reconvey the pro-party to them upon payment of Rs. 250 and costs incidental to the sale, but that the first two defendants, his brothers, fraudulently took a conveyance on the 9th September 1913, in their memes alone. The plaintiff accordingly prayed that his brothers might be directed to transfer to him his one-fourth ...
Surendra Nath Saha and ors. Vs. Nakoor Chandra Chakravarty and ors.
Court: Kolkata
Decided on: Aug-09-1920
Reported in: 64Ind.Cas.716
Asutosh Mookerjee, Acting C.J.1. This is an appeal by the defendants in a suit for an injunction to restrain the construction of a permanent building on the land of the tenancy held by them under the plaintiffs-respondents. The Courts below have decreed the suit.2. The defendants pleaded that they had a permanent right in the land, and, in the alternative, that under Section 76 of the Bengal Tenancy Act the building under construction was an improvement which did not entitle the plaintiffs to an injunction. The Subordinate Judge has held that the defendants had not established a permanent right in the land. We have consequently to deal with the other aspect of the case.3. The defendants are in occupation of two parcels, one an agricultural holding, and the other a homestead; and it has been found that the arable land was taken in lease after the homestead. The position consequently is that here is a raiyat who holds his homestead otherwise than as part of his holding as a raiyat. That ...
Mahendra Nath Mondal and anr. Vs. Sheikh ShamsuddIn and ors.
Court: Kolkata
Decided on: Aug-06-1920
Reported in: AIR1921Cal146,62Ind.Cas.344
Mookerjee, Acting C.J.1. This is an appeal by the plaintiffs in a suit for recovery of possession of land, upon declaration of title.2. The subject-matter of the litigation is an occupancy holding which was held by ore Narayan Chand Maiti under two sets of landlords, the Nandis and the Mitras. Maiti made a testamentary disposition of his properties on the 15th Jane 1885 and died shortly afterwards. He left a widow Keshabi Debi, an adopted son Radha Krishna and a subsequently born son Harey Krishna. By the Will the testator dedicated all his properties to the service of his family deity and appointed his adopted sen and his after-born son as shebaits. He further directed that Keshabi Debi would be the executrix during the minority of the two sons. Probate was granted to her on the 1st March 1886; but for some unexplained reasons, it was not limited during the minority of the two sons. Keshabi Debi took possession of the estate by virtue of her office as executrix While she was thus in o...
Protap Chandra Gope and ors. Vs. Sarat Chandra Gangopadhya
Court: Kolkata
Decided on: Aug-06-1920
Reported in: AIR1921Cal101,62Ind.Cas.348
Asutosh Mookerjee, Acting C.J.1. This is an appeal by the first, second and sixth defendants in a suit instituted under Order XXI, Rule 68 of the Code of Civil Procedure, The suit was dismissed by the Trial Court, but, on appeal, has been decreed by the Subordinate Judge. The facts material for the decision of the questions of law raised before us may be briefly outlined.2. The subject matter of the litigation is an one-fourth share of Taluk Krishnananda Rudra, which admittedly belonged at one time to Madhab Chandra Das and Mahim Chandra Das; on the 13th March 1910 they conveyed it to Fulmala Dasi, the fifth defendant in this suit. On the 7th January 1914, the first two defendants, Pratap Chandra Gope and Kalimohun Gope, took a conveyance from Fulmala Dasi. On the 8th January 1914, the plaintiff, who held a decree for money against the third and fourth defendants, Rup Chandra Dutt and Sanatan Dutt, effected an attachment on this property on the allegation that though it stood in the na...
Tara Prosanna Bhattacharjee Chowdhury and on His Death His Heirs and L ...
Court: Kolkata
Decided on: Aug-06-1920
Reported in: 61Ind.Cas.345
1. Though it appears that at one time there was some diversity of opinion the later rulings are in support of the appellants' contention that the plaintiff is entitled to a decree at the rate of interest, one anna per rupee per month, stipulated in the kabuliyat and that the finding that this rate of interest is hard and unconscionable and penal is not sufficient to justify a departure from the terms of the contract. We may refer to the unreported cases, S.A. 641 of 1919 decided on the 23rd July Act, S.A. 1672 of decided on the 3rd January Act and S.A. 287 of 1917 decided on the 7th May 1919 by one of us.2. On behalf of the respondents attention has been drawn to the case of Administrator-General of Bengal v. Asraf Ali 28 C. 227, We are unable to agree with that decision, if we must hold that a tenant holding over is not bound by the terms of the lease under which his predecessor-in-interest came into possession.3. We accordingly decree this appeal. The plaintiff's suit will be decreed...
Sheikh Bara Kalim Vs. Rajendranath Roy and ors.
Court: Kolkata
Decided on: Aug-05-1920
Reported in: 64Ind.Cas.751
1. This appeal arises out of a suit for mesne profits.2. In respect of the lands now in question, the plaintiffs brought a suit, No. 459, against the present defendant and obtained a decree on the 23rd December 1913. They took possession through the Court on 26th July 1914 (1321) and now claim mesne profits in respect of the years 1319 and 1320.3. The suit for declaration of title and recovery of possession was brought in the Court of the Munsif : while the claim being over Rs. 1,000, the present suit has been brought in the Court of the Subordinate Judge.4. The Courts below have held that the lands now in suit are identical with the lands in respect of which the plaintiffs obtained a decree in the earlier suit and are also identical with plot gha of the lease granted to the plaintiffs on the 19th of June 1906 (1313), and that this lease granted by the landlord and his chief manager must prevail over an earlier lease granted to the defendant by an unauthorised naib.5. The contentions o...
Raja Kristo Das Law and ors. Vs. Abdul Karim and ors.
Court: Kolkata
Decided on: Aug-05-1920
Reported in: AIR1921Cal220,62Ind.Cas.474
Mookerjee, Acting C.J.1. These thirty-one appeals have been preferred by the plaintiffs in as many suits for rent, which were divided into two groups in the Courts below, One group consisted of six suits, which have given rise to Appeals Nos. 513 and 566 to 570. The other group comprised twenty-five suits, which have led up to Appeals Nos 571 to 595. The questions which require decision in the two groups of appeals are different and may be briefly indicated, In the first group of suite, the plaintiffs claimed rent on the basis of written contracts, antecedent to the Bengal Tenancy Act. The defendants claimed abatement of rent on the ground that during the years for which rent was claimed, a considerable portion of the lands of the tenancy had diluviated. In the second group of suits, the plaintiffs claimed rent at increased rates, also on the basis of similar written contracts of tenancy, on the ground that the tenants were in possession of excess lands. It may be added that as there w...
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