Mumbai Court April 1885 Judgments
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Sakharam Govind Kale Vs. Damodar Akharam Gujar and Keso Govind Nandgir ...
Court: Mumbai
Decided on: Apr-29-1885
Reported in: (1885)ILR9Bom468
Birdwood, J.1. The Subordinate Judge wrongly applied article 166 of Schedule II of Act XV of 1887 to the application made to him by the judgment-debtor Sakharam Govind, as that application was not one seeking to set aside, under Section 311 or Section 294 of the Code of Civil Procedure, the sale of the judgment-debtor's immoveable property on the ground of a material irregularity is publishing or conducting the sale, or on the ground that the decree-holder had purchased without the permission of the Court. Moreover, the sale had already been confirmed before the application was made, whereas the application con-templated in Section 311 is evidently one that can be made only before a sale is confirmed. (See Section 312 and Clause (16) of Section 588.) Section 294 was clearly not relied, on by the judgment-debtor; and it is only to cases falling under Section 311 or Section 294 that article 166 of Schedule II of Act XV of 1877, as amended by Act XII of ] 879, applies.2. The Subordinate J...
Shapurji Jivanji Vs. the Collector of Bombay
Court: Mumbai
Decided on: Apr-28-1885
Reported in: (1885)ILR9Bom483
Scott, J.1. This suit was by consent transferred from the Court of the Revenue Judge to the Original Side of the High Court. The main question is, whether the Government has the right increase the assessment of a certain class of land in the island of Bombay, or whether the holders, of whom the plaintiff is one, are only bound, as a condition of their tenure, to the annual pay-meat of a customary rent invariable in amount.2. It must be borne in mind that this is not a mere question of landlord and tenant. The Government is the defendant, and the plaintiff sets up a right in derogation of the inherent right of the Sovereign to assess the land at his discretion Strict proof of the right set up must be given, whether the change be one of absolute ownership, revenue-free, or of fixity of tenure at a customary rent; and it must be borne in mind that no presumption is admissible against the Crown from mere lapse of time. Nullum tempus occurrit regi. It may- be, as suggested by Mr. Warden, an...
Ganesh Ravji Vs. Govind Gopal
Court: Mumbai
Decided on: Apr-23-1885
Reported in: (1885)ILR9Bom461
Charles Sargent, C.J.1. As the second defendant is merely a surety, the new period of limitation, substituted by Section 72 of the Dekkhan Agriculturists Belief Act, XVII of 1879, for that prescribed by the Limitation Act XV of 1877, does not apply. The Subordinate Judge is, therefore, right in holding that the period of limitation is three year,-the bond, as we presume, not having been registered....
Narayan Venku Kalgutkar Vs. Sakharam Nagu Koregaumkar
Court: Mumbai
Decided on: Apr-22-1885
Reported in: (1885)ILR9Bom462
Birdwood, J.1. I concur in thinking that the Subordinate Judge must be directed to proceed with the case not only on the ground that if the claim be held to be one in respect of land revenue, it falls within the exception contained in Clause (c) of Section 5 of Act X of 1876, but also because I am distinctly of opinion that the expression 'land revenue,' as used in that Act, does not include either the duties leviable, tinder Regulation XXI of 1827, on the manufacture of spirits, or the taxes on the tap-ping of toddy trees, the levy of which in certain districts was legalized by Section 24 of the Bombay Abkari Act, V, 1878.2. The word 'land' is defined in Act X of J876 as including 'juice in trees,' and the expression ' land revenue ' includes all sum received or claimable by or on behalf of Government from any person on account of any land held by him. If, therefore, the defendant was legally empowered, as a farmer of duties on the manufacture of spirits to levy a duty on any 'juice i...
Sundardas Jagjivandas Vs. Mohandas Ticumdas
Court: Mumbai
Decided on: Apr-09-1885
Reported in: (1885)ILR9Bom454
Charles Sargent, C.J.1. The fact that the plaintiff is not carrying on business or resident within the limits of the military cantonment does not prevent his suing in the Court of the Cantonment Magistrate. The only persons precluded from doing so are those mentioned in Section 6, who are carrying on or have carried on trade or business within the military cantonment, and who were not registered as military bazarmen at the time the debt was contracted. Again, unless the defendant is amenable to the articles of war as contemplated by Section 4 of Act III of 1859, in which case he can only be sued in the Court of the Cantonment Magistrate, he may also be sued in the Court of the Subordinate Judge, provided the cause of action arose within his jurisdiction as to which this reference is silent.2. The Small Cause Court Act, XI of 1865, Section 12*, saves the jurisdiction of this Cantonment Magistrate, but does not take away the jurisdiction conferred by Section 8 on the Small Cause Court.3....
Nimba Harishet Vs. Sitaram Paraji
Court: Mumbai
Decided on: Apr-09-1885
Reported in: (1885)ILR9Bom458
Charles Sargent, C.J.1. The decisions in Chowdhry Waked Ali v. Mussamut Jumaee 11 B.L.R. 149; Ameerunnhsa Khatoon v. Meer Mozuffer Hossein Chowdhry 12 B.L.R. 71; and Oseemoonnissa Khatoon v. Ameeroonnissa Khatoon 30 Cal. W.R. 162 show that the question raised in this suit was one which ought to have been raised in execution proceedings in the former suit, as provided by Section 244, Code of Civil Procedure. The decision in Abdul Rahman v. Muhammad Yar I.L.R. 4 All. 190 to which we have been referred conflicts with the above decisions; but the decision of the Privy Council in Chowdhry Wahed Ali v. Mussamut Jumaee 11 B.L.R. 149 would appear not to have been 'brought to the notice of the Court. Now, as a fact, the question was raised by the plaintiff in the execution proceedings in the former suit and decided against him, and if he omitted to appeal, he cannot-rectify that omission by a separate suit-Arundadhi Ammyar v. Natesha Ayyar I.L.R. 5 Mad. 391. We must, therefore, reverse the decr...
Hurmusji Cursetji Ashburner Vs. Bomonji Coursetji Ashburner and ors.
Court: Mumbai
Decided on: Apr-07-1885
Reported in: (1885)ILR9Bom250
Scott, J.1. I am of opinion, in the first place, that I have a discretion under this rule to give further time to the defendants, although they did not apply to discharge or vary the report within the twenty days. The circumstances must be, of course, strong to justify a departure from the rule, which is, that the report is binding on all the parties, unless an application is made to discharge or vary it within twenty days of its filing or within such further time as the Judge shall allow. In the present case three causes are offered of the irregularity: one by Mr. Inverarity, that the parties were ignorant of the law, which would be no excuse: two by Mr. Macpherson, that the defend ants were led beyond the time by negotiations for a setlement, and that they could not bring the matter on without copies of the notes of evidence which even yet have not been obtained-Now I have re-read the affidavits, and still think the chance of settlement was uppermost in the minds of the parties, and ...
Queen-empress Vs. Pestanji Barjorji
Court: Mumbai
Decided on: Apr-06-1885
Reported in: (1885)ILR9Bom456
Nanabhai Haridas, J.1. It appears that the accused Pestanji Barjori'i was a distiller of spirits in the Native State of Dhararapur. His license to follow that occupation having expired, he removed from Dharampur the copper utensils used in his trade, and was going to sell them at Bulsar. On his way he informed the police patel of Kosamkuva, a village in British territory, that he had such utensils, and was proceeding to sell them. He was corroborated in this statement by the police patel and witness No. 8 (Bhagvan Kala), and there is no evidence to show that this statement was false. If the statement is true he has satisfactorily accounted for his possession of those utensils, and the presumption which would otherwise arise under Section 53 of the Bombay Abkari Act V of 1878 does not arise. Both the lower Courts have omitted to notice this circumstance, and it does not seem to us that mere possession without a license of such utensils is an offence punishable under Section 43. It is on...
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