Kolkata Court January 1922 Judgments
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Rajendra Kishore Choudhury Vs. Kumud Ban Mahata
Court: Kolkata
Decided on: Jan-16-1922
Reported in: AIR1923Cal297,67Ind.Cas.271
1. We think that the Courts below were wrong in holding that the decision in the previous suit operated as res judicata upon the question whether the defendant had a permanent tenancy or not.2. In the previous suit for ejectment the defendant pleaded that he was a permanent tenant and that the suit must fail as no notice to quit was served upon him.3. The Court in that suit held that the suit must fail for want of notice to quit. It also came to the finding that the defendant had failed to prove that he had a permanent tenancy. The decree was one of dismissal and was in favour of the defendant in spite of the adverse finding against him with regard to the question of his status. The defendant, therefore, could not appeal against that finding.4. In these circumstances, the decree could not operate as res judicata on the question whether the defendant had a permanent tenancy or not [see the cases of Run Bahadur Singh v. Lucho Koer 11 C. 301 (P.C.) : 12 I.A. 23 : 4 Sar. P.C.J. 602 : 9 Ind...
Ram Sagar Mondal Vs. Alek Naskar and Bhola Nath Mondal
Court: Kolkata
Decided on: Jan-16-1922
Reported in: AIR1922Cal59,67Ind.Cas.177
Lancelot Sanderson, C.J.1. This is a Reference to a Full Bench by my learned brothers Newbould and Suhrawardy, JJ. The questions which are submitted are: 1.When in proceedings under Section 133, Criminal Procedure Code, arising out of an alleged obstruction of a way used by the public, the defendant sets up a claim of right which is found by the Magistrate to be made in good faith, is the Magistrate's jurisdiction entirely ousted?2.Or can the Magistrate, if he does not think this claim well-founded though he considers it made in good faith, allow the defendant a reasonable time to assert this claim by a civil suit and if he does not go to the Civil Court within such time or fails there, can the Magistrate continue the proceedings under Section 133, Criminal Procedure Code?Was the case of Belat Ali v. Abdur Rahim 8 C.W.N. 143 : 1 Cr. L.J. 70 giving effect to the dictum in Luckhee Narain Banerjee v. Ram Kumar 15 C. 604 at p. 570. 7 Ind. Dec. (N.S.) 960 rightly decided?2. The following fa...
Ram Ratan Mandal and ors. Vs. Nilmoni Chowdhury Proprietor of the Form ...
Court: Kolkata
Decided on: Jan-13-1922
Reported in: AIR1923Cal286,66Ind.Cas.914
1. This appeal arises out of a suit for recovery of possession of the disputed land on declaration of the plaintiffs' title to the same.2. The Court of first instance decreed the suit, but that decree was set aside by the lower Appellate Court which dismissed the suit. The plaintiffs have appealed to this Court.3. The Court of Appeal below has decided both the questions of title and limitation against the plaintiffs, but we think that it has not dealt with the case properly. With regard to the question of title, the learned Subordinate Judge observes the Munsif has stated many things in his judgment regarding title and possession in respect of the lands, but most of his observations are based upon surmises '. He does not state, however, what they are The Munsif elaborately discussed the evidence as to title. The learned Subordinate Judge refers to certain documents but appears to have considered only some of the grounds upon which the Munsif based his decision. The judgment is one of r...
Rakhal Chandra Ghose and ors. Vs. Durga Das Samanta and anr.
Court: Kolkata
Decided on: Jan-13-1922
Reported in: AIR1922Cal557,67Ind.Cas.673
1. This appeal arises out of a suit for recovery of possession of the land in dispute on declaration of plaintiff's title thereto, The plaintiff and the defendant are patnidars under the owners of Touzi Nos. 92 and 14, respectively, both the Touzis being situate in the same village. The plaintiff claimed the land as appertaining to Touzi No. 92 while the defendant claimed it as part of Touzi No. 14.2. The Court of first instance held that the plaintiff had failed to prove both title and possession and dismissed the suit. The learned District Judge on appeal found that plaintiff's title was proved, but that he failed to prove possession within 12 years and accordingly dismissed the suit. The plaintiff has appealed to this Court.3. It is contended on behalf of the appellant, first, that the title having been found to be with the plaintiffs the onus was upon the defendant to prove that the claim was barred by limitation by reason of adverse possession on his part. Secondly, that in any ca...
Samaddi Sheikh Vs. Fulbash Bewa and anr.
Court: Kolkata
Decided on: Jan-12-1922
Reported in: AIR1923Cal269,65Ind.Cas.704
1. The suit out of which this appeal arises has been dismissed by the Courts below, on the ground that the leave granted to the plaintiff in a previous suit to institute a fresh suit was improper.2. The Courts below proceeded upon the view taken in the case of Kali Prasanna Sil v. Panchanan Nandi Chowdhury 33 Ind. Cas. 670 : 23 C.L.J. 489 : 20 C.W.N. 1000 : 44 C. 367, the same case in 20 Calcutta Weekly Notes, 1000. But that case has been overruled by the Full Bench in Hridyanath Roy v. Ram Chandra Barua Sarma 58 Ind. Cas. 806 : 24 C.W.N. 723 : 31 C.L.T. 482 : 48 C. 133 (F.B.) where it was laid down that the Court trying the subsequent suit it not competent to enter into the question whether the Court which granted the plaintiff permission to withdraw the first suit with liberty to bring a fresh suit had properly made such order.3. It is contended by the learned Pleader for the respondents that the plaintiff was allowed to withdraw the appeal and not the suit. But the order clearly sta...
Ratan Lal Biswas Vs. Nafar Chandra Pal Chowdhury and ors.
Court: Kolkata
Decided on: Jan-12-1922
Reported in: AIR1922Cal571,70Ind.Cas.451
1. In this case there were two rent decrees, both of which provided that the landlord should proceed to enforce his claim for rent by sale of the tenure. Under the first decree the property was sold and purchased by the decree-holder. The landlord respondent now asks for personal execution of the second decree. The answer of the appellant is, that he cannot have such 'personal execution, because there was a contract that the property should be proceeded against first, which contract was embodied in the decree. The reply of the respondent in effect is this, that he is not obliged to follow the directions given in the second decree as regards proceeding against the property first, because the property had already been sold under the first decree. The answer to this contention, I think, is that we cannot go behind the decree and we must give effect, if possible, to both, the decrees. The second decree was passed before the sale of the property. It must, we think, be taken, that the sale w...
Abhaipada Sircar, Minor by His Brother and Next Friend Ram Pada Sirkar ...
Court: Kolkata
Decided on: Jan-12-1922
Reported in: 67Ind.Cas.66
Newbould, J.1. This appeal is preferred against a decree of the District Judge of Murshidabad, reversing decree of the Munsif, First Court, Berhampur, for ejectment of the defendant. The facts of the case are as follows: The land in suit is an area 4 cottas and two chittaks and forms part of a jama of 10 cottahs which at one time belonged to one Patai Sheikh and was purchased at an execution sale by the father of the plaintiffs. After his purchase the plaintiff's father sub-let a portion of it to the defendant who occupied it as homestead. The plaintiffs brought this suit on the ground that the defendant's tenancy had been terminated by notice to quit under the Transfer of Property Act. The lower Appellate Court 1 as dismissed the suit on the ground that the Bengal Tenancy Act and not the Transfer of Property Act is applicable.2. On behalf of the appellant the following statement of law in the judgment of the lower Appellate Court is not disputed: 'If the defendant can establish that t...
NaimuddIn Sarkar and ors. Vs. Imanimondal and ors.
Court: Kolkata
Decided on: Jan-12-1922
Reported in: AIR1923Cal308,67Ind.Cas.93
Newbould, J.1. This is an appeal against the decision of the Subordinate Judge of Bogra remanding a case for assessment of mesne profits.2. The question that arises in this appeal is whether any appeal lay to the Subordinate Judge in this matter. The plaintiffs-respondents brought a suit for declaration of their raiyati right to an eight-annas odd share in a certain holding alleging that they were purchasers from some of the heirs of one Sona. In that suit heirs of Sona were made defendants and also one Baso and defendants Nos. 6 to 12, the present appellants, were joined as being in possession of the land. Their pleas were that they were burgadars of some plots under Baso and also mortgagers of Baso in respect of some plots. The suit was dismissed by the Court of first instance. On appeal that decision was reversed and the suit decreed, The plaintiffs' title to the share claimed was declared and they were granted a decree for possession after partition. It is also directed that defend...
Nagendra Nath Chowdhuri Vs. Eraligool Company Ltd.
Court: Kolkata
Decided on: Jan-11-1922
Reported in: AIR1922Cal443,70Ind.Cas.92
Lancelot Sanderson, C.J.1. This is an appeal from the judgment of my learned brother Mr. Justice Greaves whereby he appointed a Receiver in a suit upon an application of the plaintiff Company. The suit was brought by the plaintiff Company praying that the defendant might be ordered and decreed to carry out the agreement referred to in the plaint and to execute and register the conveyance and for a decree for the sum of Rs. 88,280, being the expenses incurred by the. plaintiff Company in carrying on the estate from the 1st January 1920 to the 14th January 1921 and for the sum of Rs. 1,500 per week from the 14th January 1921 until the defendant would take possession of the said estate less the sum which is referred to in the prayer and for the sum of Rs. 7,800, odd as interest or by way of damages, or, in the alternative, in the event of the Court deciding that the plaintiff Company was not entitled to specific performance for damages.2. It appears that the Company was-carrying on the bu...
Chandy Charan Law Vs. Sreemutty Azizernessa and ors.
Court: Kolkata
Decided on: Jan-11-1922
Reported in: 80Ind.Cas.315
1. The only question involved in the appeal relates to interest on rent payable by the tenant under a kabuliyat.2. The interest stipulated to be paid was 2 per cent. per annum.3. The Courts below held that the tenant had no permanent mocurrary right in the land and that, therefore, the landlord was not entitled to interest at the stipulated rate and accordingly interest at 12 per cent. only was allowed.4. It is contended on behalf of the plaintiff-landlord that the interest of the tenant was that of a mocurrari permanent tenure-holder and that, having regard to the provisions of Section 179 of the Bengal Tenancy Act, he is liable to pay interest at the rate stipulated in the kabuliyat.5. The kabuliyat describes the tenure as a darsikmi kayami taluka and states that the rent is payable in ten kists. It then goes on to say:I down to my sons, son's sons and so on in succession, being vested with the right to make a gilt and sale of the land covered by this kabuliyat, shall hold and enjoy ...
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