Mumbai Court September 1928 Judgments
Lalji Dayal Vs. Vishvanath Prabhuram Vaidya
Court: Mumbai
Decided on: Sep-28-1928
Reported in: (1929)31BOMLR126
Mirza, J.1. The finding of both Courts is that the defendant has encroached upon the plaintiffs' land by putting up the gallery on the second floor of his house. The trial Judge was of opinion that this was not a matter for compensation, but was not willing at the same time to grant a mandatory injunction unless the plaintiffs built on their land within twelve years. The trial Court gave a declaration that the plaintiffs would be entitled to have a certain portion of the defendant's gallery and roof removed if and when they erected a building over their plaint land, provided that they built within twelve years from the date of the decree, For this form of the decree, there is, so far as I am aware, no precedent. The appeal Court substituted for this conditional order an order granting the relief by way of mandatory injunction claimed by the plaintiffs.2. Mr. Coyajee, on behalf of the appellant, has urged that this is a case for compensation and not for a mandatory injunction. The matte...
Tag this Judgment!Ramchandra Trimbak Joshi Vs. Hari Martand Joshi
Court: Mumbai
Decided on: Sep-28-1928
Reported in: (1929)31BOMLR120
Mirza, J.1. The facts leading up to this second appeal are briefly as follows. The plaintiff-appellant had sued the defendant for a declaration that he had an ancient right of way for his cattle and men to pass through the defendant's land, for a mandatory injunction to have the obstruction caused to the way removed and for the issue of a permanent injunction restraining the defendant from obstructing the plaintiff's cattle and men in their use of the way from June to October during the year. The trial Court held that long or immemorial user, on which the suit was based, had not been established, but it came to the conclusion that the plaintiff had satisfactorily proved that he had enjoyed this right of way as claimed by him for a period of over twenty years, and had thereby acquired a right of easement by prescription. The learned trial Judge was of opinion that although it had been shown that there were other ways by which the plaintiff's cattle could reach their pasture, yet the evi...
Tag this Judgment!Annaji Ramchandra Vs. Thakubai Dattatraya Deshpande
Court: Mumbai
Decided on: Sep-28-1928
Reported in: (1929)31BOMLR208; 118Ind.Cas.790
Murphy, J.1. In this matter the learned District Judge of Sholapur when dealing with an appeal from the decree of the Joint Subordinate Judge's Court of that place has passed an order which, we think, cannot be sustained under the provisions of Order XLI of the Civil Procedure Code. His findings on issues Nos. 1 and 2 were, that plaintiff and defendant No. 4 were not estopped from showing that they had been minors at the date of execution of Exhibit 44. He then went on to say that an issue must next he raised on the question of fact whether they were actually minors or not and that evidence must be taken on this point because though the trial Court had recorded a finding that these ladies had then been majors, no issue had so far been raised on this point and the parties had not had a proper opportunity of adducing all their evidence. He next found on issue No. 4 that the consent of the husbands of plaintiff and defendant No. 4 was in law necessary to give validity to the sale which th...
Tag this Judgment!Gajanan Sitaram Mahajan Vs. Sitaram Raghunath Layal
Court: Mumbai
Decided on: Sep-27-1928
Reported in: (1928)30BOMLR1629; 114Ind.Cas.245
Mirza, J.1. The finding of the lower appellate Court is that the sum of Rs. 4,000 was paid by defendant No. 2 for the purchase of the property in which the appellant (original plaintiff No. 1), original plaintiff No. 2, and defendant No. 1 were interested. Out of the purchase money Rs. 2,600 were paid to the mortgagees for redeeming the property. To that extent, it is admitted that the sale would be for a legal necessity if the mortgage amount had then matured, The balance of Rs. 1,400 was paid by defendant No. 2 to defendant No. 1, the eldest male mem-bur of the joint family, Defendant No. 1 admitted that part of this sum of Rs. 1,400 was utilized by him for the payment of family debts.2. It is urged, on behalf of the appellant, that his interest in the property is not affected by the sale to defendant No. 2 as the sale was not for a legal necessity. Mr. Varde has argued that there would be no legal necessity to pay off the mortgage amount 1928 before it matured and could be demanded....
Tag this Judgment!The Gujerat Ginning and Manufacturing Company Limited Vs. the Motilal ...
Court: Mumbai
Decided on: Sep-26-1928
Reported in: (1929)31BOMLR1310
Amberson Marten, Kt., C.J.1. This litigation is mainly concerned with two pieces of land, the first containing an area of 1590 square yards at present occupied by a godown and a tank, and the second some 6771 square yards of open land. There is a subsidiary point about ten square yards at present occupied by a steam chest. Suit No. 208 of 1923 was brought by The Motilal Hirabhai Spinning and Weaving and Manufacturing Company, Limited, against The Gujerat Ginning and Manufacturing Company, Limited, for ejectment as regards the 1590 square yards, viz., the built on land, and asking for an injunction as regards the other 6771 square yards, viz., the open land, to prevent the defendants from trespassing thereon.2. The learned Judge in effect decided in favour of the defendants as regards the built on land, and in favour of the plaintiffs as regards the open land. As regards the built on land he, by a supplemental judgment, directed the plaintiffs to grant a lease of the land in question fo...
Tag this Judgment!The Gujrat Ginning and Manufacturing Company, Limited Vs. the Motilal ...
Court: Mumbai
Decided on: Sep-26-1928
Reported in: 123Ind.Cas.481
Amberson Marten, C.J.1. This litigation is mainly concerned with two pieces of land, the first containing an area of 1,590 square yards at present occupied by a godown and a tank, and the second some 6,771 square yards of open land. There is a subsidiary point about 10 square yards at present occupied by a steam chest. Suit No. 208 of 1923 was brought by the Motilal Hirabhai Spinning and Weaving and Manufacturing Company Limited against the Gujrat Ginning and Manufacturing Company, Limited, for ejectment as regards the 1,590 square yards, viz., the built on land, and asking for an injunction as regards the other 6,771 square yards, viz., the open land, to prevent the defendants from trespassing thereon.2. The learned Judge in effect decided in favour of the defendants as regards the built on land, and in favour of the plaintiffs as regards the open land. As regards the built on land he, by a supplemental judgment, directed the plaintiffs to grant a lease of the land in question for cer...
Tag this Judgment!Emperor Vs. Tribhovan Motiram
Court: Mumbai
Decided on: Sep-25-1928
Reported in: (1929)31BOMLR53; 117Ind.Cas.434
Mirja, J.1. The applicant along with three others was summarily tried before the Sub-Divisional Magistrate, First Class, Broach, for offences under Sections 4 and 5 of the Bombay Prevention of Gambling Act, 1887 (Bom. Act IV of 1887), was convicted and sentenced to pay a fine of Rs. 125 or in default to undergo one month's rigorous imprisonment. He applies for revision of the order of conviction and sentence.2. Mr. Patel, on behalf of the applicant, contends that the warrant under which the gaming house was entered and searched the portions arrested and the things seized was illegal. He also contends that the arrest and search of the applicant were like- wise illegal. The ground for the first contention is that the warrant was issued by the District Superintendent of Police not upon a complaint on oath as required by Article 6 of the Act, but only credible information received, For the second contention, Mr. Patel relies upon an additional circumstance, that the arrest of the applicant...
Tag this Judgment!Ardeshir Jivanji Mistri Vs. Aimai Kuvarji
Court: Mumbai
Decided on: Sep-21-1928
Reported in: (1929)31BOMLR97; 117Ind.Cas.513
Amberson Marten, Kt., C.J.1. This is an appeal from the judgment of the learned Subordinate Judge dismissing the plaintiffs' suit for the removal of an encroachment and obstruction to what is alleged to be a gowan or public passage. The learned Judge held that there was or had been a public passage at any rate up to the time of construction of another road about the year 1910, but that Government had in effect an inherent right to stop up or divert any public road and that consequently they were entitled to stop this gowan and to sell it to the original defendant No. 1 for a cash consideration.2. This finding raises a question of considerable public importance. But I should also mention that one of the defences raised was that no public right of way ever existed, and even if it did, the action was defective because the consent of the Advocate General or Collector had not been obtained under Section 91 of the Civil Procedure Code.3. The locus in quo is well shown on the plan Exhibit 67....
Tag this Judgment!Bai Devmani Vs. Ravishankar Oghadbhai
Court: Mumbai
Decided on: Sep-21-1928
Reported in: (1929)31BOMLR109
Mirza, J.1. This is a second appeal preferred by the original plaintiffs against the judgment of the District Judge at Ahmeda-bad, who reversed, so far as plaintiffs Nos. 2, 3 and 4 were concerned, the decree of the Second Joint Subordinate Judge at Ahmedabad and dismissed their claim to redeem the property in suit from respondent No. 2.2. The suit was brought by the plaintiffs against one Bai Ishwari and defendant No. 2 (respondent No. 1 herein) as the heir and legal representative of one Shuklal Oghad Dosabhai claiming to redeem from Bai Ishwari on payment to her of Rs. 599 the property in suit which was in her possession as mortgagee and for a declaration against respondent No. 1 that a certain sale deed obtained by his father Shuklal Oghad Dosabhai in respect of the property was nominal and null and void.3. Bai Ishwari having died during the pendency of the suit respondent No. 2 and his father Govindlal, were' substituted as her heirs and legal representatives, Govindlal having sin...
Tag this Judgment!Bheraji Samrathji and Co. Vs. Vasantrao Govindrao Prabhakar
Court: Mumbai
Decided on: Sep-20-1928
Reported in: (1929)31BOMLR981
Fawcett, J.1. In this suit the Official Assignee has appeared by counsel and has objected that the suit is barred by Section 17 of the Presidency-towns Insolvency Act, 1909. That section provides that :-On the making of an order of adjudication, the property of the insolvent wherever situate shall vest in the official assignee and Bhall become divisible among his creditors, and thereafter, except as directed by this Act, no creditor to whom the insolvent is indebted in respect of any debt provable in insolvency shall, during the pendency of the insolvency proceedings, have any remedy against the property of the insolvent in respect of the debt or shall commence any suit or other legal proceeding except with the leave of the Court and on such terms as the Court may impose...2. In the present case the suit was brought without any such leave and, in fact, the plaint does not mention that the defendant was insolvent. It was stated by Mr. Lalji that at the time of the filing of the suit the...
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