Kolkata Court February 1922 Judgments
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Jadu Mondal and ors. Vs. Jagendranath Banerjee
Court: Kolkata
Decided on: Feb-17-1922
Reported in: AIR1923Cal319(1),68Ind.Cas.303
1. The petitioners were the defendants in a suit for money brought on a bond. The suit was decreed. This Rule was granted on the ground that there was no evidence whatever before the Court with regard to the passing of the consideration in respect of which the bond is alleged to have been given.2. From the record of the substance of the evidence it is true that no witness is shown to have stated that the consideration of the bond was paid. But the issue having been tried under the Small Cause Court Procedure it does not follow that because no such statement was recorded no such statement was made. Further, the defendants denied execution of the bond at all. The lower Court has found that defence to be false and having found that the defendants executed the bond and as bond contains a recital that the money was paid, no error in law would be committed if from those facts the lower Court concluded, as it has done, that the consideration was paid.3. We see no sufficient ground for disturb...
Khosal Mahammad Vs. AmiruddIn Mahammad Pramanik
Court: Kolkata
Decided on: Feb-17-1922
Reported in: AIR1923Cal318,68Ind.Cas.331
1. This Rule is unopposed. The petitioner brought a suit against the defendant on a band for Rs. 35). The defendant denied payment of consideration and also pleaded that the bond which he admittedly executed was a bond for Rs. 25 only and had been altered so as to show the amount advanced to be Rs. 35. The lower Court has found that; the consideration money of Rs. 25 was paid and the bond was altered. On these findings he has applied the principle of the leading case of Master y. Miller (1791) 1 Sm. L. C. (11th Ed.) 767 at p. 803 : 2 Rule R. 899 : 4 T. Rule 320 : 100 E. Rule 1042, to be found at page 803 of Smith's Leading Cases, 12th Edition, Volume 1, aid dismissed the suit, That the plaintiff petitioner cannot recover his claim on the bond is not disputed but what is contended is that be san sue on the original debt of Rs. 25. This contention is supported by the authority of the case of Moti Lai Saha v. Monmohan Gossami (4), in which it was held that even if the promissory not sued ...
Joytun Bibi Vs. SolimuddIn Choukidar and ors.
Court: Kolkata
Decided on: Feb-16-1922
Reported in: AIR1924Cal356
Newbould, J.1. The plaintiff and the second defendant in this suit are the daughters of one Kalamaddi. The first defendant is the husband of the second defendant. The plaintiff brought the suit for declaration of her title to 1/3rd share in four plots of land and for recovery of, possession thereof claiming as one of the heirs of Kalamaddi. In the First Court the plaintiff got a decree declaring her title to 1/3rd share of plots Nos. 1 and 4 and her suit was dismissed as regards plots Nos. 2 and 3. On appeal by the defendants her suit has been dismissed entirely.2. The findings are that the plaintiff has been out of actual possession of the land in suit since a few years after the plaintiff's father's death which took place about 40 years ago and that the second defendant has been in possession of the land for over 12 years.3. The appeal turns on the question whether the principle that possession by a co-sharer is not ordinarily adverse applies to the facts of the present case. Though,...
Bahir Das Pal and anr. Vs. Girish Chandra Pal
Court: Kolkata
Decided on: Feb-16-1922
Reported in: AIR1923Cal287,67Ind.Cas.663
1. This is an appeal by the defendants against a decision of the Additional District Judge affirming a decision of the Subordinate Judge. The respondent in the present appeal sometime ago, instituted a suit for declaration of his title to, and for possession of, the land included in the present execution case. Now the suit was compromised and a decree was passed and the present appellants took out execution in respect of that decree and certain plots were seized. The present respondent made an objection but on the 11th December 1915 when the objection was brought on, apparently what happened was that the present respondent said that he would rot proceed with the case. We cannot find that there was any decision with regard to the objection or any actual determination on the point.2. Three questions are urged before us on behalf of the appellants, firstly, it is stated that these proceedings are barred as the matter is res judicata by reason of the dismissal of the respondent's objection...
Abdul Rahim Kazi and anr. Vs. Jonabali Sardar and ors.
Court: Kolkata
Decided on: Feb-16-1922
Reported in: 68Ind.Cas.329
Newbould, J.1. The plaintiffs respondents brought the suit out of which this appeal arises for recovery of possession of three plats of land on declaration of their title thereto. As regards two of the plot Nos. 1115 and 211, both Courts have held that the plaintiffs' case failed, and the ugh a cross-objection in respect of this finding was taken on behalf of the respondents it has not been pressed at the hearing of this appeal.2. We are now only concerned with plot No. 1116 in respect of whish the Munsif dismissed the plaintiffs' suit but the lower Appellate Court gave the plaintiffs a decree for a 14-annas share. As regards this plot the only question that really arises in this appeal is as to the admissibility of certain documents on which the lower Appellate Court has based this finding in favour of the plaintiffs. In proving their title to this plot the plaintiff relied on Exhibit 3 a document whish had been rejected by both Courts and further on five documents, Exhibits 1, 4,5, 6...
Ram Ratan Chowdhury Vs. Upendra Chandra Das and anr.
Court: Kolkata
Decided on: Feb-16-1922
Reported in: AIR1923Cal288,68Ind.Cas.727
1. This is an appeal by the judgment debtor against an order in an execution-case. It is argued before us on behalf of the appellant that the execution is barred. The original decree was obtained on the 1st June 1914 and the application for execution was made on the 17th December 19(sic)9. But it appears that against the original decree an application for review was filed on the 24th June 1914 and was not dismissed until 24th June 1915. Against the order of dismissal an appeal was preferred to this Court, which was dismissed on the 28th May 1917. The Court said that no appeal lay against such an order. Now, the learned Judge in the Court below has held that limitation did not begin to run until 28th May 1917, He is clearly in error with regard to this. Assuming that limitation did not commence to run until after the 24th June 1915, clearly limitation began to run after that date, as the appeal against the dismissal of the review application was incompetent.2. In the result, the appeal ...
Biman Chandra Dutta Vs. Promotho Nath Ghose and Ok His Death His Heire ...
Court: Kolkata
Decided on: Feb-16-1922
Reported in: AIR1922Cal157,68Ind.Cas.94
Asutosh Mookerjee, J.1. This is an appeal under Clause 15 of the Letters Patent from the judgment of tyro learned Judges of this Court who were equally divided in opinion in an appeal from an appellate decree preferred in a suit for recovery of money. The Court Of first instance decreed the suit. The District Judge reversed that decision and dismissed the suit. On second appeal to this court, Mr. Justine Tennon was of opinion that the decree of the Subordinate Judge should, be restored. Mr. Justice Newbould held, on the other hand, that the decree of the District Judge should be maintained. The result was that, under paragraph 1 of subsection (2) of Section 98 of the civil Procedure Code, the degree of the District Judge stood can-firmed.2. The facts material for the decision of the question of law raised before us lie in a narrow Compass. One Jatindra Mohan Dutta died, leaving as his heir a Childless widow, Pranab Kumari Dasi. The widow sold her ornaments through her maternal untie, P...
Radha Kanta Saha and ors. Vs. Debendra Narayan Saha and ors.
Court: Kolkata
Decided on: Feb-15-1922
Reported in: AIR1922Cal506,70Ind.Cas.101
1. The subject-matter of the litigation which has culminated in this appeal is immoveable property of considerable value, comprised: in a mortgage-security executed by the plaintiffs in favour of the first two defendants. A decree was made on the basis of the mortgage on the 31st August 1916 and an appeal to this Court was dismissed on the 22nd March 1918. The case for the plaintiffs is that, after the disposal of the appeal, there was an adjustment of the decree and that in contravention of such adjustment, the decree was fraudulently executed with the result that the mortgaged properties were brought to sale. It is asserted that they were purchased by the decree-holders in the name of the fourth defendant. Subsequently, on an application made on the 21st January 1920, a personal decree was made in due course on the 17th June 1920. The plaintiffs seek to have a two-fold declaration, namely, first, that their title to the mortgaged properties has not been affected by the execution proc...
Radha Krishna Saha and ors. Vs. Kamal Kamini Debya and ors.
Court: Kolkata
Decided on: Feb-15-1922
Reported in: AIR1922Cal456,70Ind.Cas.547
1. The plaintiffs are the appellants in this appeal and are also the petitioners in the Rule. The plaintiffs sued to establish their title to and for recovery of a certain fishery. The First Court decreed the suit. The Second Court held that the case had not been properly dealt with and modified one of the issues that had been settled by the learned Judge in the First Court and directed that the case should be tried de novo on the modified issue. The order of the lower Court is this: 'The appeal is allowed and the decree of the lower Court is reversed. The suit is remanded for a de novo trial of the suit on amendment of Issue No. 6 as mentioned above. The lower-Court is directed to, readmit the suit under its original number in the register of civil suits and to proceed to determine the suit, the evidence recorded during the original trial to be evidenced during the trial after remand. The parties to be at liberty to adduce new evidence in support of their respective cases.'2. A prelim...
Hem Chandra Roy Chowdhury Vs. Srimati Biraja Sundari Chowdhurani, Wido ...
Court: Kolkata
Decided on: Feb-15-1922
Reported in: AIR1923Cal283(1),67Ind.Cas.386
Newbould, J.1. The plaintiffs brought the suit out of which this appeal arises for a declaration that the land described in the schedule to the plaint did not appertain to Zemindari No. 162 but appertained to Mahal No. 1170 of the Dacca Collectorate. The first defendant who has appealed before me filed a written statement admitting that the 14 annas share of the disputed land appertain to Mahal No. 1170. He farther stated that he had no objection to the said 14 annas being partitioned as appertaining to Mahal No. 1170. In the First Court the only issue that was tried on these pleadings was whether the plaintiffs had any cause of action. That issue was determined in the plaintiffs' favour and the suit was decreed with costs. In the decree it was directed that 'it be declared that the alleged 14 annas share of the disputed land appertain to Mahal No. 1170 taluk Mahadeb Roy and not to Zamindari No. 162 and that the said 14 annas share of the disputed land should in partitioning the said M...
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