Court : Kolkata
Reported in : AIR1932Cal584
Rankin, C.J.1. This is a Letters-Patent Appeal from a decision of my learned brother Jack, J., sitting in second appeal. The learned Judge gave a certificate that the case was a fit one to be taken on further appeal.2. The plaintiff is a person who has been found to be the transferee of a tenancy which is a nontransferable occupancy tenancy. The lands comprised in the tenancy were originally part of a larger holding which had been settled in raiyati right. The landlord brought a suit for rent, obtained a rent decree and purchased that previous holding himself. Thereupon, the holding having come to an end, he settled the southern portion of two plots and one-third undivided interest in a homestead plot with one Uma Charan Mitra. Uma Charan sold to the plaintiff the whole of this new tenancy; but at the time of the sale he stipulated that the transferee would grant him an under-lease of the undivided one-third share in the homestead plot. The finding of fact is that Uma Charan from the t...
Tag this Judgment!Court : Kolkata
Reported in : AIR1932Cal479
Rankin, C.J.1. These are two Letters Patent Appeals brought by leave from a decision of my learned brother Pearson., J., in two second appeals. The same question arises in each case. There was a jama of 5 bighas 2 cattas at a rental of Ha. 10 held under defendants 1 and 2 in the names of four brothers. It has been alleged in the present suits that this holding was raurasi mukarrari; but it has been established and has now been admitted that the holding was an ordinary nontransferable occupancy holding. The plaintiff in one suit bought the interest of two brothers, namely, eight annas interest in the holding at a Court sale to enforce a mortgage and in the other suit the plaintiff bought the interest of the third brother, that is to say, four annas at a Court sale in execution of a money decree; and the plaintiffs by their suits having alleged this make the following complaint: They say that while the holding is nontransferable, nevertheless the original raiyats had not abandoned the ho...
Tag this Judgment!Court : Kolkata
Reported in : AIR1932Cal507
1. These appeals arise out of suits for ejectment, the plaintiffs suing the defendants on the ground alleged that the lands in suit are accretions to their raiyati holding as provided by Bengal Regn. 11 of 1825. The plaintiffs and the defendants are raiyats under the same landlord. The defendants' case is, and it is not denied, that they have taken settlement of these areas from the landlord. The substantial question between the parties is whether that settlement can confer a title upon the defendants or whether the plaintiffs are correct in their contention that the title to these lands is with them by reason of the gradual accretion and the provisions of the regulation above mentioned.2. It has bean found by both Courts that the river whence the accretions have come is a shallow navigable river and the bed of it belongs to the proprietors as their private property. In those circumstances, both the lower Courts have found in favour of the defendants. The learned Subordinate Judge has ...
Tag this Judgment!Court : Kolkata
Reported in : AIR1932Cal642
Mukerji, J.1. These two appeals have arisen out of a decision of the District Judge of the 24-Pargannas decreeing the claims of a receiver in insolvency. Sitanath Biswas was adjudicated insolvent by an order, dated 5th December 1927, upon his own petition dated 23rd September 1927. On 19th April 1923 he had executed a deed, described as a deed of gift, in favour of certain family deities, in respect of 66 bighas 6 cattas of land together with structures, gardens, trees, tanks, etc. On 25th October 1924 he transferred byway of sale certain moveable and immovable properties. The recipient of both the deeds was one Atul Krishna Biswas, as shebait of the said deities in respect of the former, and in his personal capacity in respect of the latter. On 21st May 1929 the receiver made a report to the District Judge alleging that the transactions were sham and fraudulently entered into by the insolvent, and prayed that it might be declared that they were void and inoperative and mere benami tra...
Tag this Judgment!Court : Kolkata
Reported in : AIR1932Cal750,140Ind.Cas.66
Panckridge, J.1. This Hula must be made absolute. It appears that the petitioner was convicted of an offence punishable under Section 448, I. P. C. on 23rd February 1931. On 7th March the opposite party filed a petition before the learned Presidency Magistrate, asking him to pass an order under Section 522, Sub-section (1), Criminal P.C., directing that he (opposite party) should be restored to possession of the room in question. Apparently, when this case came on for hearing the petitioner pointed out that an appeal had been filed against the order of conviction and he succeeded in inducing the learned Magistrate to adjourn the case until after the disposal of the appeal. On 3rd July 1931 the appeal was dismissed. The opposite party again applied apparently on 14th September 1931 for the order for which he had already asked on 7th March and on 2nd November 1931 the Magistrate made the order asked for. It is clear to us that the Magistrate had no jurisdiction to make the order as the s...
Tag this Judgment!Court : Kolkata
Reported in : AIR1933Cal215
Mitter, J.1. This is an appeal by the defendant and arises out of a suit for declaration of the plaintiffs' right of way over a piece of land described in the plaint and for removal of the obstruction placed at one end of it by the defendant. There is also a prayer for perpetual injunction for restraining the defendant from obstructing the said pathway. The defence of the defendant to the suit was that there was no such pathway as alleged in the plaint, nor has the right been exercised for a sufficiently long time in order to entitle the plaintiffs to acquire right either by prescription or under the other heads of claim to which I shall presently refer. The Munsif decreed the plaintiffs' suit declaring the plaintiffs' right of easement as claimed in the plaint and directing that the obstruction be removed in execution of the decree. The Munsif decreed in full the plaintiffs' claim. On appeal the Additional District Judge has modified the decree by restricting the right to use the path...
Tag this Judgment!Court : Kolkata
Reported in : AIR1932Cal620
Jack, J.1. This is a reference under Order 46, Civil P. C., made by the Munsif, Second Court, Manikgunj in connexion with Small Cause Court Suit No. 1762 of 1931. A sum of money was borrowed by two brothers Jamini and Jatindra on a simple money bond. The last payment of interest was made by Jamini alone and the question is whether the debt is time-barred against Jatindra. Admittedly it is so barred apart from the payment made by Jamini which saves limitation as against the heirs of Jamini.2. This reference has been made by the-learned Munsif inasmuch as he is of opinion that the law on the point is uncertain because of a conflict between the decisions in the cases of Arjun Bam Pal v. Rahima Banu [1912] 14 I. C. 128 and Achola Sundari Debi v. Doman Sundari Debi. As stated by the learned Munsif the question is really settled by Section 21, Clause (2), Lim. Act, which lays down:Nothing in Sections 19 and 20 renders one of several joint contractors, partners, executors or mortgagees charge...
Tag this Judgment!Court : Kolkata
Reported in : AIR1932Cal685
Costello, J.1. This Rule was obtained on behalf of one Salina Sheehan who is the defendant in a suit brought against her by Hafez Mohommed Fateh Nashib, the opposite party in these proceedings. The Rule was directed against an order made by the Subordinate Judge, 1st Court, 24-Pargannas, on 2nd December 1931.2. It appears that the suit out of which this matter arises, was brought by Hafez Mohammad Fateh Nashib on the allegation that he was entitled to be the muttawali of certain properties of which a house No. 1, Store Road, Ballygunge, in the possession of the defendant Selina Sheehan is said to have formed part. We are told that, in fact, Mrs. Sheehan has been in possession of this particular property for a space of something like 12 years. She purchased it from certain persons and subsequently there was a suit in the Alipur Court the judgment in which in effect decided that the property in question had been lawfully alienated and acquired by Mrs. Sheehan. In the present suit we are ...
Tag this Judgment!Court : Kolkata
Reported in : AIR1932Cal571
Rankin, C.J.1. This is a Letters Patent appeal from the decision of my learned brother Jack, J., sitting in second appeal. He has given a certificate that the case is a fit one for an appeal under the Letters Patent. The case is an interesting and important one. The form in which the learned Judge has dealt with the matter is quite shortly this: Whether in the case of an under-raiyat who by custom has acquired a right of occupancy the interest is a protected interest by virtue of Clause (d), Section 160, Ben. Ten. Act, as it stood before the amendment of 1928. The suit was brought in the Court of the Munsif and it was a suit to recover khas possession of certain land. The footing of the suit was that the plaintiffs had taken title from the superior landlord of a certain raiyati, that the appellant, defendant 12 in the suit claimed an under-raiyati interest but that, as the superior landlord had bought the raiyati at a judicial sale for arrears of rent and had resettled the land with th...
Tag this Judgment!Court : Kolkata
Reported in : AIR1932Cal295
Panckridge, J.1. The appellants before us with four other persons were charged with having committed the offence of dacoity in the house of one Guiram Hazra on the night of 20th August 1930. The jury have unanimously found the other four persons not guilty and by a majority of 8 to 2 have found the two appellants guilty of an offence punishable under Section 395, I. P.C. The learned Judge agreed with and accepted the unanimous verdict of acquittal and states that he accepts the majority verdicts of guilty against the two appellants whom he sentenced to be rigorously imprisoned for a term of four years. Various points have been argued before us with which it is not necessary for me to deal at length.2. It is suggested on the authority of the case In re Hainan Koraban : AIR1931Mad427 that where the jury, brings in a verdict of guilty on a charge under Section 395 in respect of less than five persons there is a duty upon the Court to satisfy itself that in coming to such a verdict there h...
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