Mumbai Court July 1878 Judgments
The First Assistant Collector of Nasik and ors. Vs. Shamji Dasrath Pat ...
Court: Mumbai
Decided on: Jul-24-1878
Reported in: (1883)ILR7Bom209
M.R. Westropp, Kt., C.J.1. This was an action brought by the villagers of Dabhade in the Malegaon Taluka of the Nasik District against certain revenue authorities to remove an obstruction to a watercourse placed by the First Assistant Collector in charge of the taluka and confirmed by his superiors. It is sufficient for the purposes of this appeal to note that a dam had been in existence, for a great number of years across the river Girna by means of which the lands of the neighbouring villages of Dabhade and Patna were irrigated through separate channels. Constant disputes had taken place from time to time between these two villages as to the quantity of water to which each was entitled, and eventually the Assistant Collector took up the matter with the view to putting an end to the quarrels, and finding that there was more cultivated land in Patna than in Dabhade, he determined to reduce, and did reduce, the opening of the Dabhade sluice thereby diminishing the supply of water to tha...
Tag this Judgment!V.K. Gujar Vs. V.D. Barve
Court: Mumbai
Decided on: Jul-23-1878
Reported in: (1878)ILR2Bom673
West, J.1. The plaintiff Vithu, having been dispossessed of property held by him under a mortgage on the 14th December 1875, applied on the 14th January 1876 for restitution. The 13th having been a Court holiday, the question is,--whether the period of limitation expired on the 12th January 1876, so as to bar an application which but for the holiday might have been made on the 13th2. According to the rule in the Code of Civil Procedure, Act VIII of 1859, Section 230, a person dispossessed 'might apply to the Court within one month from the date of such dispossession.' These words, it was ruled in Dadu v. Balgouda 5 Bom. H.C. Rep., 39, give to the 'applicant a clear month... exclusive of the day on which he was dispossessed, in which to make his application.' In the Limitation Act, IX of 1871, it is said (section 4) that every 'application made after the period prescribed therefore... shall be dismissed.' And in Schedule II, Article 158, it is provided that in a case of dispossession an...
Tag this Judgment!Land Mortgage Bank of India Limited Vs. Vishnu Govind Patankar
Court: Mumbai
Decided on: Jul-17-1878
Reported in: (1878)ILR2Bom670
West, J.1. The contention of the applicant in this case is that, whether he had or had not acquired actual possession under his purchase of June 1877, the ownership of the land had, in fact, passed to him, and that being owner of the land he was owner of the landlord's moiety of the crops as it was cut, so that there was nothing of the mortgagor's (Datar's) which could be attached by Patankar in execution of his old money decree against Datar. For the opponent it is said that Datar, being allowed to remain in possession after the time limited for payment of the mortgage money and even after the sale, was justified in cultivating the land directly or by the mediation of his tenants; that he thus became entitled to the emblements, notwithstanding an intermediate sale followed even by his dispossession as to the land; and that the crops being thus his property, or so far as they were his property in the hands of the tenants, were subject to his creditor Patankar's attachment.2. No case ha...
Tag this Judgment!Sarubai Kom Jitmal Vs. Bapu Narhar Sohoni
Court: Mumbai
Decided on: Jul-16-1878
Reported in: (1878)ILR2Bom660
West, J.1. The District Judge says that 'the easement... in the matter of air and light existed before the portions of the wall were erected', i.e., the portions between which is the window which the defendant's new structure has closed up. The light and air were there, no doubt, before the wall was built, but there was no appropriation of them, nothing done in reliance on their continued access, in accordance with the provisions of the law, which in such cases allows a right to be created by user and enjoyment as conducive to the general convenience and improvement. The appropriation began no earlier than the wall was built, which was eight years ago at most; and, until the lapse of time should convert the plaintiff's actual enjoyment into a right to its continuance, the defendant had an actual right to build on a space that belonged to her. This she has done. The plaintiff in consequence sustains an inconvenience, but one of which he took the risk when he made his window without an a...
Tag this Judgment!Babaji Mahadaji Vs. Krishnaji Devji, a Minor, by His Guardian Sakubai
Court: Mumbai
Decided on: Jul-16-1878
Reported in: (1878)ILR2Bom666
West, J.1. The suit in this case was by a minor to set aside the sale of half a house made by his father. The Subordinate Judge found that the transaction was one of a kind by which, according to the Hindu law, the minor was bound--one falling under the general principle of a sale for satisfying a family necessity. The District Judge thinks that even a prima facie necessity, the belief in which held in good faith would protect the purchaser, did not exist. His reasons for this conclusion are that the mortgage, to pay off which some portion of the money was raised, still had some time to run, and that the bond to the purchaser, also, payment of which formed part of the consideration, probably had some time to run, too. These are not, in our opinion, reasons sufficient to disprove an otherwise apparent necessity. It might be highly desirable, in the interests of the family, that a mortgage and a bond at high interest should be paid off, even by a sale of ancestral property, rather than a...
Tag this Judgment!S.B. Shringarpure Vs. S.B. Pethe
Court: Mumbai
Decided on: Jul-15-1878
Reported in: (1878)ILR2Bom662
West, J.1. The plaintiff in this case is a purchaser, at an execution sale, of the interest of Dharma and others, sold to satisfy a mortgage effected and registered in 1864. The mortgage does not stipulate for possession, but does stipulate for a sale of the property in the event, which has happened, of nonpayment of the debt secured.2. Before the decree on the mortgage, but apparently during the pendency of the suit, the defendant purchased the property from Dharma and other owners by a registered conveyance, and obtained possession. This he maintained against the purchaser (the judgment-creditor) under the sale to satisfy the prior mortgage, and the present suit is brought to establish the title of the execution purchaser.3. By the mortgage in 1864 an interest in the property was conferred on the mortgagee by way of security for his advance of money, which interest became available against all subsequent purchasers or encumbrancers by the registration of the mortgage. This result was...
Tag this Judgment!In Re: Muse Ali Adam
Court: Mumbai
Decided on: Jul-11-1878
Reported in: (1878)ILR2Bom653
Kemball, J.1. The Court concurs with the opinion of the Magistrate of the District. The offence charged was one of 'contempt of the lawful authority of a public servant,' and no proceedings could have been instituted against the offender without the sanction of the Court whose authority had been resisted. In such a case the complainant spoken of in Section 210 of the Code of Criminal Procedure, must be deemed to be the Court resisted, and not the person injured through the resistance. Therefore, to make the withdrawal of such a complaint, as that under consideration, legal, it must be based on the application alone of the Court or authority sanctioning the proceedings.2. The Court annuls the order of the Subordinate Magistrate, permitting the withdrawal of the charge in this case, and directs the Magistrate to proceed with the trial, and dispose of the case according to law....
Tag this Judgment!Shivlal Khubchand Vs. Apaji Bhivrav and ors.
Court: Mumbai
Decided on: Jul-11-1878
Reported in: (1878)ILR2Bom654
Kemball, J.1. The dispute in this case arises out of the following facts: One Shivlal Khubchand obtained a decree for Rs. 650 and proportionate costs, against one Balvantrav Venaik, in the Court of the Subordinate Judge of Puna. Balvantrav appealed to the District Court, and, pending the disposal of such appeal, Shivlal applied for execution. Balvantrav thereupon prayed for its stay, and his prayer was granted, upon two persons Apaji and Venaik becoming sureties 'for the due performance of the decree or order of the Appellate Court.' In the said appeal the decree of the Subordinate Judge was reversed; but in the special appeal, which Shivlal took up to the High Court, the decree of the lower Appellate Court was reversed, and the cause remanded for further trial, which resulted in the District Court confirming the original decree of the Court of first Instance.2. Upon this, Shivlal (apparently under Section 204 of Act VIII of 1859) sought execution of his decree against the sureties Apa...
Tag this Judgment!R.S. Joshi Vs. L.B. Joshi
Court: Mumbai
Decided on: Jul-08-1878
Reported in: (1878)ILR2Bom650
West, J.1. The mortgage having been executed by three senior members of a joint family, the remaining member of which had disappeared, and setting forth a ground of necessity, was presumably a valid transaction, Nothing has been adduced, in the way of evidence, to overthrow that presumption.2. The sale of the one-sixth share belonging to Parashram, the absent member was subject to the lien thus created.3. The purchase of that share by the mortgagee's son, and his sale of it to the respondent's father, did not disturb this lien. The mortgage was registered, and the father, as that important transaction shows, was managing the family affairs. If he could be identified with his son, yet the sale-deed to the respondent's father sets forth distinctly the origin of the vendor's title. It was a purchase of a share, and this should have put the new purchaser upon inquiry.4. The mere fact that, under such circumstances, the mortgagee's son bought and sold a share in the property mortgaged witho...
Tag this Judgment!Luckmidas Vithaldas Vs. Ebrahim Oosman
Court: Mumbai
Decided on: Jul-05-1878
Reported in: (1878)ILR2Bom644
Michael Westropp, C.J.1. The Civil Procedure Code of 1859, Section 119, provided that no appeal should lie from a judgment passed ex parte against a defendant who did not appear, or from a judgment against a plaintiff by default for non-appearance; but it gave power to the parties to apply to the Court, by which the judgment was passed, to set aside the judgment. The concluding portion of the section is in these words: 'In all cases in which the Court shall pass an order, under this section for setting aside a judgment, the order shall be final; but in all appealable cases, in which the Court shall reject the application, an appeal shall lie from the order of rejection to the tribunal to which the final decision of the suit would be appealable.' It, therefore, appears that, although there was no appeal against the judgment, yet there was an appeal where the Court rejected an application to set aside a judgment. That was the rule as to ex parte decrees generally.2. Section 363 of the sa...
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