Court : Guwahati
j.n. datta, j.c.1. the petitioner abdul ali mia, aged about 85, of village lilong khunou, who was convicted under section 420 of the i. p. c. and sentenced to undergo r. i. for a period order 11/2 months,, has filed this revision petition against his conviction and sentence, his appeal to the court of sessions having failed.2. the facts necessary for the appreciation of the point involved briefly stated are, that in 1951, the complainant abdulla alias tomba mia, brought a suit against the petitioner, in which his son abdul hakim mia was also later joined as a defendant, for possession of some land on the ground that the petitioner had sold it to him by a registered sale deed d/-30-5-50 (ext. p-1) for a consideration of rs. 700/-.the defence was that the petitioner had already made a valid gift of the land to his son (the other defendant) in 1944 sometime before he left for macca, and the son was since then in possession, that is, on the date of the alleged sale to the plaintiff, the petitioner had no right in or title to the land. the sale was further denied, and it was asserted, that the plaintiff had by deceit obtained the thumb mark of the petitioner on a blank paper, and later forged a sale deed on it that is in any case the plaintiff had no title to the land.3. it appears that the trial court held both the gift and the sale in . favour of the plaintiff proved and dismissed the suit on the date of sale, the petitioner had no title in the land. on appeal my learned .....
Tag this Judgment!Court : Guwahati
g. mehrotra, j. 1. this is a miscellaneous appeal arising out of an execution proceeding. the respondent obtained a decree against the appellant and in execution of that decree he attached the tenancy right of the appellant, the appellant has a right under a lease to remain in possession of certain premises on payment of monthly rent. this right of the appellant is sought to be attached and sold in execution of the decree. an objection was raised by the judgment-debtor that this is not a property which is liable to be attached under section 60, civil procedure code. the objection was repelled by the subordinate judge and the present appeal has been filed against that order. 2. the main question is whether under section 60 of the civil procedure code the right of the appellant to remain in possession of the house as a tenant is liable to be attached or sold in execution of the decree or not. section 60 of the civil procedure code provides that any property which is saleable can be attached in execution of a decree. the question therefore to be considered is whether the appellant's right to remain in occupation of house as a tenant is a property and the next question that will have to be considered is whether it is saleable or not. section 105 of the transfer of property act provides that 'a lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or .....
Tag this Judgment!Court : Guwahati
g. mehrotra, j. 1. these two rules were issued on two separate applications under article 226 of the constitution. as common questions of law and facts have been raised in these two petitions, they are disposed of by a common judgment, 2. on 15-4-1958, a public auction was held for settlement of the silonipam p.w.d. ferry on the river jiabhorali for a term of one year commencing from 1-5-1958. previous to this auction sale, tenders were invited, but no settlement was mode, and in the auction sale which was held on 15-4-1958, the respondent no. 7, pulin chandra chaudhury, offered a bid of rs. 57,000/-, respondent no. 6, biswanath singh offered the highest bid of rs. 87,020/-, and the petitioner in rule no. 63 of 1958. kailash prosad singh, offered a bid of rs. 87,010/-. the deputy commissioner, darrang, at the close of the public auction, accepted the highest bid of rs. 37,020/- offered by the respondent no. 6 and sent all the papers to the chief engineer, assam, for approval. a sum of rs. 21,755/- was deposited by the respondent no. 6, biswanath singh, in pursuance of the rules framed under the northern india ferries act (act 17 of 1878). the matter was considered by the additional chief engineer who, by his order dated 26-4-58, did not accept the bid of respondent no. 6, biswanath singh, but directed the settlement of the right to collect toll with the respondent no. 7, pulin chandra chaudhury, for a sum of rs. 97,020/-. this order was communicated to the parties, and it is .....
Tag this Judgment!Court : Guwahati
sarjoo prosad, c.j. 1. this is an application under section 561-a of the code of criminal procedure for expunging certain remarks made by mr. b. c. hazarika, magistrate, first class, barpeta, in an order dated 7-11-57. the petitioner was neither a party nor a witness to the proceeding. 2. it appears that a complaint was lodged by one darbesh ali sarkar against the accused in the case, safaruddin sarkar and others, charging them of an offence of conspiracy for murdering the complainant, under section 120b of the indian penal code. the defence case was that the accused were entirely innocent and that the case had been falsely started at the instance of the petitioner who was the owner of a parallel 'hat' called-khorma hat, of which the complainant darbesh was a lessee. several prosecution witnesses appear to have been examined in the case, and the learned magistrate who held the enquiry was not prepared to accept the prosecution evidence. he held that there was nothing to show that there was any such conspiracy between the accused persons for the alleged murder of the complainant, and that it was not possible to rely upon the testimony of the prosecution witnesses. whether the estimate of the evidence by the magistrate is correct or incorrect, is not a matter for me to decide at this stage. he held that in the case before him there was no vestige of evidence as to which of the accused took what part in the alleged conspiracy. 3. this, in my opinion, should have been enough to .....
Tag this Judgment!Court : Guwahati
j.n. datta, j.c.1. this is a revision petition under section 439 of the cr. p. code, filed by smt, ban-chamani saha, an illiterate widow, aged 50 or more of village routkhola, within the jurisdiction of bishalgarh police station, who was convicted under section 420, i. p. c., and sentenced to undergo r. i. tor a term of two months, and to pay a fine of rs. 100/- or in default to suffer further r. i. for one month. her appeal to the sessions court also failed.2. the case was started on a complaint filed by kshir babu sinha of village kalkalai which is about 3 miles away from the village of the petitioner. in 1954, the complainant sold to the petitioner 2 kanis out of his four kanis of land in a jote, for rs. 500/-, by a sale deed and there was an agreement, which was also reduced to writing, on the same day, that if within 5 years, the complainant repaid the amount of price, then the petitioner would reconvey the land to the complainant.possession was given to the petitioner, and it appears, that during the first year, she got the land cultivated through others. thereafter in the subsequent two years, the complainant cultivated the land on borga from the petitioner, and as the prosecution evidence itself goes to show, there was some dispute between the parties over the payment of the share of crops for the borga, to the petitioner. her contention has been that the complainant did not pay her on that account, as alleged by him.3. it further appears that, the complainant agreed .....
Tag this Judgment!Court : Guwahati
g. mehrotra, j.1. this is a revision against the decision of the sessions judge, upper assam districts, who confirmed the conviction and sentences passed against the two applicants'balbir sing and inderjit sing by sri a. ahmed, magistrate, 1st class at jorhat. applicant no. 1 was convicted under section 61-a of the east bengal and assam excise act-hereinafter called the act and applicant no. 2 was convicted under section 53 (l) (a) of the act, each of these two applicants were sentenced to six months' rigorous imprisonment and to pay a fine of rs. 500/- in default to undergo another period of three months' rigorous imprisonment.2. the prosecution case is that on 21-11-54 the excise inspector under the authority of a search war- rant searched the broadway hotel and restaurant including its kitchen and recovered one bottle of heyward's brandy, one kettle containing liquor, one bottle containing about a dram of hey ward's brandy, one bottle containing traces of heyward's whisky, six empty bottles of heyward's whisky, rum, brandy, one tumbler with smell of liquor, from the kitchen and from the drawer of the manager's secretariat table, one bottle containing about 2 1/2 ounces of heyward's whisky was recovered.there were other documents recovered from the table of the manager which is not very material. on the recovery of these articles, inderjit sing, applicant no. 1, the manager of the hotel, john games, assistant manager and baldev raj, the cook were arrested. balbir sing bedi .....
Tag this Judgment!Court : Guwahati
g. mehrotra, j. 1. this is an appeal against the decision of the election tribunal, setting aside the election of the appellant. the appellant and the respondent stood as candidates for tarabari--l. a. 41 constituency in the kamrup district in the last general election to the assam legislative assembly held on 6-3-1957. the respondent was a nominee of the congress party and the appellant was the nominee of the proja socialist party. the results were admittedly declared on 9-3-1957 and the appellant was declared to have secured 12759 votes and the respondent got 12535 votes. the appellant therefore leads by a majority of 224 votes. the results were duly published in the assam gazette extra ordinary dated 29-3-1957.the respondent also claimed to be an elector of the barpeta constituency from barpeta town. the respondent thereafter brought the present petition challenging the election of the appellant inter alia on the ground that due to corrupt and irregular practice committed by the opposite party and his agents extensively throughout the constituency, the results of the election were materially affected and that there were some irregularities committed due to the non-compliance of the mandatory provisions of law which materially affected the results of the election. the election of the returned candidate was thus liable to be set aside. it was also claimed by the respondent that he should be duly declared elected. a number of irregularities and non-compliances with the .....
Tag this Judgment!Court : Guwahati
..... where the law casts a duty upon a man which through no fault of his, he is unable to perform, he is excused for non-performance; but where a man by his own contract binds himself absolutely to do a thing, he cannot escape liability for damages by proof that performance is impossible. .....
Tag this Judgment!Court : Guwahati
..... this is so, because at the time of entering the contract a man may honestly have the intention of carrying out the contract, but later may not be able to do so for more than one reason, or may change his mind. .....
Tag this Judgment!Court : Guwahati
deka, j.1. this rule was obtained by the gauhati bank limited against an order of the subordinate judge, upper assam districts at jorhat passed in miscellaneous claim case no. 42 of 1957 whereby the claim of the opposite party no. 2--assam co-operative apex bank limited, sibsagar town, was allowed in respect of a sum attached by the decree-holder bank in execution of a decree passed against rajendra nath majindar barua opposite party no. 1. the order itself is not very specific as to the amount under claim which has been allowed and accordingly there had been some confusion even as to the point to be decided.on a reference to the record and after hearing the learned advocates for the parties, we are satisfied that this amount in claim refers to the sum of rs. 2,742.53 naya paise in respect of which a claim was filed by the assam co-operative apex bank limited, sibsagar by an application dated 20-11-1957, for the purpose of precision, i quote below the order of the learned subordinate judge dated 20-11-1957 :'record put up today. a cheque no. 405028 for rs. 2,742.53 has been received from the ex-engineer, sibsagar dn. office to arrange to acknowledge the cheque by returning the hand receipt.keep the cheque in safe custody until necessary orders are passed.one claimant appears (assam co-operative apex bank ltd.) through lawyer and by a petition no. 1402 files claim against the attached amount of the j. d.put up in presence of the lawyers on the date already fixed (i.e. .....
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