Kolkata Court March 1929 Judgments
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Abinash Chandra Ghosh Vs. Narhari Mether and anr.
Court: Kolkata
Decided on: Mar-22-1929
Reported in: AIR1930Cal165
Mitter, J.1. The plaintiff, now respondent, having sued to recover possession of a plot of land now in dispute in this suit after declaration of his title to the same, had his suit dismissed by the Subordinate Judge of 24 Paraganas on the ground of limitation there being a finding in his favour on the question of title. This decision has been reversed by the Additional District Judge of 24 Parganas on appeal and plaintiff's suit has been decreed.2. Against this decision defendant 1 has preferred this appeal. Two points have been argued on this appeal : (1) that the decision of the lower appellate Court that the suit is not barred by limitation is wrong; (2) that the lower appellate Court was clearly in error in not allowing the appellant to support the judgment of the Subordinate Judge on the ground that the plaintiff had failed to establish title to the disputed land, a ground which had been decided against him by the Court of first instance and in so doing has misunderstood the plain...
Nazir Ahmmad and ors. Vs. Tamijaddi Ahamed and ors.
Court: Kolkata
Decided on: Mar-22-1929
Reported in: AIR1929Cal430,122Ind.Cas.303
Mitter, J.1. The question of law which arises for consideration in this appeal is. as to whether on the death of one of two mortgagees after they had obtained a preliminary decree for sale of the mortgage property the suit abates if the heirs of the deceased mortgagee are not brought on record of the suit within the time limited by law. The appellants who are the surviving mortgagee and the heirs of the deceased mortgagee contend that the suit does not abate whereas the mortgagors, now respondents, contend that the suit has abated. The lower appellate Court has accepted the contention of the respondents and has dismissed the plaintiffs' suit.2. The appellants contend that the view taken by the lower appellate Court is erroneous as Order 22, Rule 3, Civil P.C. does not apply where a plaintiff in a mortgage suit dies after the preliminary and before the final decree; on the other hand the respondents contend that Order 22, Rule 3 applies as under the Code of 1908 proceedings after the pr...
Osman Munshi and ors. Vs. Kader Pramanick and ors.
Court: Kolkata
Decided on: Mar-22-1929
Reported in: AIR1929Cal768,122Ind.Cas.640
Suhrawardy, J.1. This rule is directed against an order purported to have been passed by the Sub-Divisional Officer of Tangail under the Bengal Alluvion Lands Act (5 of 1920) directing that some huts which were erected by the second party on the disputed char were to be sold and the sale proceeds credited to the treasury. This rule should in my opinion be discharged on several grounds. The first is that the order passed by the Sub-Divisional Officer is an order passed in his capacity as Collector as defined in the Act. That being so, it is an order which is passed not in his judicial capacity but as an executive officer invested with certain powers under the Act. That an order passed under the Act is an executive order is indicated by certain provisions in the Act itself. It is laid down that in attaching a char the Collector has to determine what costs are to be paid by any party and any person who is aggrieved by such order must prefer an appeal to the Commissioner. Thus it is clear ...
Tarak Nath Mukherjee Vs. Sanat Kumar Mukherjee and ors.
Court: Kolkata
Decided on: Mar-21-1929
Reported in: AIR1929Cal494,122Ind.Cas.637
Cuming, J.1. The facts of the case out of which these appeals arise are these: One Himadri had a certain share in a certain taluk. He was involved in debt and there were a number of decrees out against him. On 14th June 1921 in execution of a money decree his share in the taluk was sold. He then applied on 14th July 1921 to have the sale set aside on depositing the decretal amount and this was allowed on 18th July 1921. It will appear that the money to do this was supplied by the plaintiff in the present suit, Babu Tarak Nath Mukherji. On 8th July Himadri had entered into an agreement to sell to Mukherji his interest in the taluk and Mukherji paid him in advance some Rs. 26,000 odd of the purchase money and it was this money which was used to satisfy the decretal amount of the decree I have already referred to.2. One Kali Nath Bose had meanwhile obtained another decree against Himadri and in execution of the decree attached the same property on 25th September 1921.3. On 16th September ...
Brindaban Misra Adhikary Vs. Dhruba Charan Roy and ors.
Court: Kolkata
Decided on: Mar-21-1929
Reported in: AIR1929Cal606,121Ind.Cas.404
1. This appeal arises out of a suit for a declaration of title and confirmation of possession and in the alert native for recovery of possession. The plaintiff's case briefly was that he had purchased this land from defendant 3 by a kobala dated 16th September 1923 and after his purchase he had been receiving rent from defendant 4 who was actually in possession of the house and was his tenant. But since then defendant 1 had induced defendant 4 to pay rent to him. Defendant 1 who contested the suit contended that he had purchased the property from defendant 2 and that defendant 2 derived his title under a deed of gift of the property executed in his favour by defendant 3. The trial Court held that there had been a valid deed of gift by defendant 3 to defendant 2 and therefore as defendant 3 had at the time of the plaintiff's purchase no title to the property the plaintiff had acquired no title to the property by his purchase from her; so he dismissed the plaintiff's suit. The plaintiff ...
Adwaita Das Bairagi Vs. Lalit Mohan Mohanti
Court: Kolkata
Decided on: Mar-20-1929
Reported in: AIR1930Cal57
Cuming, J.1. This appeal arises out, of a suit for partition after declaration of the plaintiff's title to an eight annas, share in the properties in suit. The properties in dispute belonged to one Raj Kumar Banerji. Defendant 1 is the son of Raj Kumar by his wife, defendant 2. The plaintiff claimed an eight annas share being a son of Raj Kumar by another wife. The defendants resisted the plaintiff's claim on the ground that he was not a legitimate son of Raj Kumar and hence he was not his heir. The first Court held that the plaintiff's mother was not a legally married wife of Raj Kumar and hence the plaintiff was not an heir of Raj Kumar and on these findings lie dismissed the suit. The plaintiff appealed to the District Court and the learned Subordinate Judge, held that the plaintiff was a legitimate son of Raj Kumar, that Raj Kumar and the plaintiff's mother had been legally married according to the rites of the, Bairagi sect and hence he was entitled to an eight annas share of the ...
Abdul Gani and anr. Vs. Nabendra Kishore Roy and ors.
Court: Kolkata
Decided on: Mar-20-1929
Reported in: AIR1930Cal47
1. This appeal has arisen out of a suit for setting aside an order passed in a claim case releasing certain property from attachment, for a declaration of defendant 1's title thereto and for a further declaration that the property is liable to be sold in execution of a decree against the said defendant 1. The Courts below have decreed the suit. Defendants 1 and 2 have appealed to this Court.2. The plaintiff's case was that defendants 1 and 2 inherited the property in equal shares from their father Kamar Ali Bepari. He attached a half share of defendant 1 in the said property in execution of a decree he held against the said defendant, but, defendant 1 having raised an objection that he was possessing it as mutwalli the property was released from attachment. Hence the present suit under Order 24, Rule 63, Civil P.C.3. The property in suit are some lands in a taluk named Sitaram. In 1894 Kamar Ali created a wakf in respect of five taluks of which Sitaram was one, the other four taluks be...
Jyoti Prosad Singha Deo Bahadur Vs. Gopal Acharya Goswami
Court: Kolkata
Decided on: Mar-20-1929
Reported in: AIR1930Cal145
1. This appeal has arisen out of a suit for recovery of arrears of cesses for the years 1328 to 1331 B.S. in respect of a revenue-free tenure. The plaintiff's case was that the defendant was liable to pay cesses at Rs. 36-6-0 per annum, and he was also liable to pay a penalty of a like amount for nonpayment of the same under Section 58 of the Cess Act. The defendant contended that he was' ready to pay the cesses for the revenue-free tenure year after year to the plaintiff's gomastha but the latter refused to accept it, that he remitted the casses for 1327 to 1329 by money order but the same was not accepted by the plaintiff and that he also offered to pay the cesses for 1330 and 1331 to the plaintiff's gomastha but that the latter would not accept it. He alleged further that no valuation roll was published or notices were served such as were necessary to fix him with liability for payment of penalty, interest or costs.2. The trial Court held that the plea of tender was not made out, th...
Nripendra Chandra Sarkar and ors. Vs. Ekherali Joardar and ors.
Court: Kolkata
Decided on: Mar-20-1929
Reported in: AIR1930Cal457
Mitter, J.1. This is an appeal by the defendants and arises in a suit for specific performance of a contract. The plaintiff, now respondent, alleges that the defendants got an ex parte mortgage degree against the plaintiff for a sum of Ks. 2,500 and the plaintiff intended to apply to have the ex parte decree set aside. At this stage the parties came to an arrangement and the arrangement was arrived at between plaintiff on the one hand and defendant 1 on the other purporting to act on behalf of the joint family of which defendants 2, 3 and 4 were also members. It was agreed that two plots covered by the mortgage, viz., plots which were mentioned in Schedule Ka and Kha to the plaint would be sold by defendant 3 as representing the family to the plaintiff and the defendants would refrain from executing their mortgage decree on payment by the plaintiff of the sum of Rs. 1,654 in certain instalments. Of the numerous defences which had been taken in this case it is necessary to notice only o...
Rajani Kanta Roy Vs. Ibrahim Sarkar
Court: Kolkata
Decided on: Mar-20-1929
Reported in: AIR1929Cal507
Suhrawardy, J.1. This rule was issued on two grounds. The first is that the procedure laid down in Section 139-A, Criminal P.C., was not followed in this case. What happened was that the petitioner was charged with obstructing a river called the Margara river by throwing earth into it and raising the land over which the water used to pass. The Magistrate issued a notice under Section 133,. Criminal P. C, on the petitioner to show cause why he should not remove this obstruction. He appeared on the data fixed for showing cause and asked for time. On the following day he filed a written statement in which he admitted that the river said to have been obstructed was a public river but that he had not obstructed it but had built his shop on the land which belonged to his zemindar. He claimed that the land over which be was charged with throwing earth and building was a part of his zemindar's khas land. The trying Magistrate thereafter proceeded under Section 137 Criminal P.C., and being of o...
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