Court : Orissa
Reported in : AIR1951Ori233; 16(1950)CLT245
..... it merely emphasises the position that the purchasing co-proprietor shall hold the land subject to payment of proportionate rent to his co-sharers, & that he was not to be deprived of the benefit of his purchase nor would his purchase enure to the benefit of the other co-sharers who did ..... -section, as applicable to east bengal, declares in language identical with that used in schedule 6 (2), orissa tenancy act, that the purchasing co-proprietor shall have no right to hold the land as a ryot but shall hold it ..... the provision in the bengal act was expressly to the effect that he'shall be entitled to hold the land subject to the payment to the co-proprietors or joint tenure-holders or the shares of the rent which may be from time to ..... under schedule 2( 2), bengal act, as it stood before its amendment in 1907, a co-sharer-proprietor purchasing the occupancy right in a land would be entitled to hold the land subject to payment to his co-proprietors of the rent which may from time to ..... appears to be that the applt was by reason of his purchase of the occupancy holding a tenant under the general body of proprietors & was liable to pay rent to them under schedule 2 (2), bengal tenancy act, as amended in the year 1907 & that there was no merger of the two interests, provision for which was subsequently enacted in schedule 6 (2) of the orissa act. ..... payment of 'rent' instead of 'a fair & equitable sum for the use & occupation of the same' as laid dowa in schedule 6 (2) of the orissa act.4. .....
Tag this Judgment!Court : Orissa
Reported in : AIR1951Ori262
..... . is governed by the provisions of the orissa tenancy ant that they had a permanent tenancy right in the suit holding before the amendment act x [10] of 1946 came into force & that they have been given statutory protection subsequently, that the notice to quit purporting to have been ..... prove that there had been a variation in the rent paid; secondly that the holding was an agricultural holding, to start with, & though the lease of a portion of the holding was for residential purposes the lease itself should have -been deemed to be a lease of agricultural land only &, as such governed by the provisions of the orissa tenancy act; and thirdly that the recent amendment to schedule 36 of the act, by act x [10] of 1946 affords protection to all tenants ..... . it does not mattes whether the holding was, at its inception, agricultural or otherwise for the purpose of the act, all home stead tenancies are put on the same footing as agricultural tenancies & the relations between the landlord & tenant which had formerly been regulated by custom & usage have been declared to be ..... for the purposes of the tenancy act they have been treated as it they were agricultural holdings & the purpose of the lease is agricultural the fact that the suit land along with other situated in a temporarily settled area was surveyed & the rents settled would show that the relations between the parties are governed by the provisions of the orissa tenancy act; and as the local legislation regulates the relations between .....
Tag this Judgment!Court : Orissa
Reported in : AIR1951Ori186
..... -section (5) which is in the following terms :'when the holding of an occupancy raiyat or a portion or share thereof is sold in execution of a decree or of a certificate signed under the bihar and orisaa public demands recovery act, 1914, other than a decree or certificate for arrears of rent due in respect of the holding or dues recoverable as such, and neither the purchaser nor the decree-holder is the sole landlord, the court or the revenue officer, as the case may be, shall ..... as to the supposed hardship of the landlord or the scope for the commission of frauds by defaulting tenants, i am not satisfied that it is likely to be so serious as has been represented to us to be, especially since a sale in execution of a rent-decree must be preceded by attachment under sections 216 and 217 of the act, and fraudulent transfers prior thereto are not likely to be numerous or common; but if the hardship resulting from what appears to me to follow from a plain reading of the amending sections is really such ..... to the effect that the transfer was not brought to the knowledge of all the landlords either through the machinery provided in schedule 1 (5), orissa tenancy act or otherwise such transfer though valid as between the transferor and the transferee (defendant 2 and the plaintiff) could not have a binding effect on the landlords so as to render a rent-decree obtained by them in a suit properly constituted in other respects against the recorded tenants into a mere money decree. .....
Tag this Judgment!Court : Orissa
Reported in : AIR1951Ori153
..... regarded all persons in occupation of homesteads as 'tenants' within the meaning of the orissa tenancy act & settled their rents accordingly, the course of judicial decisions indicates that the incidents of chandna tenancy were indefinite & precarious. ..... the report says: 'it is both (sic) clear that in any area which has not been excluded from the act, all occupants of land who are 'tenants' under the act are liable to have their rents settled by the revenue officers. ..... the word 'tenant' has been defined in the orissa tenancy act as meaning'a person who holds land under another person & is or but for a special contract would be liable to pay rent for that land to that person. ..... section 119, tenancy act, requires that the rents of all tenants who should be re-settled at the time of re-settlement of revenue & the expression 'all tenants' must include chandnadars & bajiaftidars. ..... tenancy act recognised the holders of all these homestead tenancies as a class of tenants governed by the provisions of the act & defined) chandnadar as'any person holding land which had been recorded as chandna in the course of a settlement & for which a rent has been fixed for the term of that settlement.'22. ..... at the last settlement chandinadars were given leases securing to them fixity of rent for the term of the settlement, & the incidents of the tenure do not materially differ from those of thani raiyats except that they are governed by the contract act & not by act x (10) of 1859. .....
Tag this Judgment!Court : Orissa
Reported in : AIR1951Ori105; 16(1950)CLT249
..... for eviction merely on the ground of non-payment and whether the plaint in the case which was distinctly based on the order for exemption obtained from the rent controller, is to be treated as falling outside the scope of the house rent control act, merely because, non-payment is also alleged, are matters that must depend upon further investigation of facts, as to circumstances under which the non-payment may ..... lord macnaughten laid down the two following propositions in this connection; (l) if it was a matter which was more than one relating to procedure, that is if it touched a right in existence at the passing of the act, it could not be deemed to be retrospective in its effect according to a long line of decisions extending from coke; and (2) to deprive a suitor in a pending action of a right of appeal to a superior court which belonged to him, ..... nor would it render invalid what was valid under the repealed order as the saving clause expressly says that it 'shall continue in force and be deemed to be done under the act ' it is by a legal fiction that anything done under a prior statute is deemed to be done under a later statute; and it is by just another legal fiction that we have to hold that although a provision corresponding to section 13 was ..... of provisions dealing with matters of procedure which may properly be retrospective in effect, but even here an exemption is made in cages where such construction would be textually inadmissible: delhi cloth & general mills v. ..... delhi .....
Tag this Judgment!Court : Orissa
Reported in : AIR1951Ori168
..... voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority'.the terms in which schedule 4, evidence act, is couched seem to indicate that in the case of an ordinary confession, there is no initial burden on the prosecution to make out the negative, viz. ..... by the inducement may have been removed by mere lapse of time, or by an intervening act, such as, a caution given by some person of superior authority, to the person holding ..... i consider it a tragic ingenuity that it should at all be advanced seriously as a contention that in view of schedule 9, evidence act, a mag can deliberately infract the caution provision in schedule 64 & the questioning provision in the selfsame section & leave a bare & nude record for the purpose of being used against the accused as ..... this is not to say that the trial ct is relieved of its duty under schedule 4, evidence act to exclude the confession if it finds it irrelevant even after it is allowed to go in under ..... (23) 1936 pc 253: 37 cr lj 897), is that if a magisterial confession is sought to be admitted under the evidence act, it can be proved only if it is a valid record of the confession under schedule 64, cr. p. c. ..... where a confession made to the mag in the course of the investigation is sought to be brought in under schedule 6, evidence act, it cannot be admitted if it is one which is wholly outside the requirements of schedule 64, cr. p. c. .....
Tag this Judgment!Court : Orissa
Reported in : AIR1952Ori165; 17(1951)CLT209
..... appeal differed from the finding of thelearned munsif, and held that the defendants were not liable to eviction as, in his view, they had acquired a right of permanent tenancy in the lands by paying a uniform rate of rent for at least sixty years, for the disputed land, and as the landlord had never attempted to eject them or their predecessor at any time before. ..... the circumstances relied on by the defendants in support of their case are : (i) that the origin of the tenancy is unknown; (ii) that they have been paying a uniform rent for over half a century; (iii) that the tenancy has devolved from father to sou for generations; and (iv) that no attempt had been made by the landlord to eject the tenants ..... it is clear therefore that so far as the act is concerned it confersno right of permanent tenancy on a sub-tenant ..... tenancy act of 1898, there was no statutory prohibition against such permanent ..... tenancy act, either by way of appeal or by way of cross-objection in the appellate ct the finding of the ..... tenancy act, which deal with improvements & compensations therefor, clearly show that it is only the occupancy tenant or the ordinary tenant who is entitled to make improvements & that the sub-tenant has no ..... tenancy act classifies tenants in.section 3 as 'absolute occupancy tenant, 'occupancytenant', 'village service tenant', 'sub-tenant' and' ..... regulated by contract between him and hislandlord, and the period of his tenancy cannot extend beyond one year under section 60 of the act. ..... act .....
Tag this Judgment!Court : Orissa
Reported in : AIR1951Ori313
..... passed the decree' is to be taken to mean 'the judge who pronounced the judgment' irrespective of whether he prepared the judgment or not, the prohibition would apply to a person who performed the mere mechanical & official act of pronouncing the judgment prepared by another, but would exclude the very person who had prepared the judgment, but not pronounced it, if per chance he happens to have become later the presiding officer of the appellate ct. ..... , whether there is anything in the statute which makes it the duty of the person on whom the' power is conferred to exercise that power, cases have held that where a statutory provision confers an an authority to do a judicial act in a certain case, id is imperative on those who are authorised to exercise that authority, when the case arises, & the exercise depends not on the discretion of the cts. ..... this argument is founded on the language of section 38 (2) bengil, agra & assam civil courts act (act xii) [12] of 1887) which is in the following terms:the presiding officer of an appellate ..... it cannot be doubted that the phrase 'passing the decree' in these central civil courts act of that date, must be construed with reference to the procedure authorised by the then civil ..... the real test in such oases is the intention behind the act, does that act indicate that the acquirer intended to throw it into the common stock & not to claim separate title thereto it certainly cannot be said that the moment a member acquires property with his his own .....
Tag this Judgment!Court : Orissa
Reported in : AIR1952Ori42
..... , the concerned executive authorities, however, have either by their mistaken action or their inaction brought into existence a number of permits already specified in my learned brother's judgment, some before the impugned act came into operation & some after, which considered, in the terms of their grant, can hardly be discriminated from permits, in respect of either a stage carriage or a public carrier's services, issued, transferred or renewed by the provincial transport authority or ..... company to run stage carriage & public carrier's services in the province of orissa, to the exclusion of all other persons in the routes & areas over which it extends its activities & thereby provide for such modification of the said act:' section 2 of the act says that the act shall be construed as forming part of the motor vehicles act, 1939 but that where there is any repugnancy or inconsistency between any of the provisions of the two ..... urged the following three important points while challenging the validity of the subsidiary act:(i) that act abridged the fundamental light conferred on the petitioners by sub-clause (g), clause (1) of article 19 of the constitution to carry on their business of plying buses for hire & that the act is not saved by the exception contained in clause (6) of that article;(ii) the act offends article 14 by discriminating in favour of the company; &(iii) the act is invalid for contravening sub-clause (2) of section 299, govt. .....
Tag this Judgment!Court : Orissa
Reported in : AIR1952Ori168; 17(1951)CLT278
..... only the names of the first decree-holder and merely notes 'and others' as the remaining decree-holders; (2) the copy of the execution petition on which the learned counsel for the appellant acted when filing tile appeal was itself incorrect in so far as it omitted to show rajendra prasad bhagat as a decree-holder at all, and continued to show the deceased laxmi prasad bhagat as ..... these are all no doubt cases where the mistake which caused the delay resulted from the legal advice given by the lawyer on which the litigant acted, but there is no reason to make any distinction, between lawyer's mistake of one kind and another, in the course of the discharge of his duties, except that on the facts of a case ..... not the court should bear in mind the following definition of 'good faith' as given in section 2(7) of the indian limitation act,' 'good faith' -- nothing shall be deemed to be done in good faith which is not done with due care and attention ..... ' is identical with that given in the indian penal code (section 52) and is at variance with the following definition of the same expression given in section 3(20) of the general clauses act, 1897 :'a thing shall be deemed to be done in good faith where it is in fact done honestly whether it is done negligently or not. ..... had the petitioner's agent exercised due care and attention as required by section 2(7) of the limitation act he would have surely been aware of the substitution of kamala devi's name in the execution proceedings and would .....
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