Court : Kolkata
Reported in : (1877)ILR2Cal393
Markby, J.1. It seems to us that the decision of the lower Appellate Court is wrong. The suit is brought to recover a specific sum of money which the plaintiff says the defendant No. 1, in collusion with defendant No. 2, without his knowledge and consent, had obtained from the collectorate. The defendants pleaded limitation. The Court below thinks that the case is governed either by Article 90 of the 2nd Schedule of the Limitation Act or by Article 48. Article 90 provides for a suit by a principal against his agent for moveable property received by the agent and not accounted for. The plaintiff does not sue the defendant as his agent; he does not admit that the defendant was his agent. On the contrary, he denied that the defendant was his agent, and the Court below does not find that the defendant was so. Therefore it cannot possibly be brought under that head. Article 48 clearly provides for a case in which a suit is brought to recover moveable property acquired by means of a criminal...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal418
Markby, J.1. This is a suit brought under the provisions of Section 246 of the Code of Civil Procedure[1] for setting aside an order made in an execution-proceeding taken in respect of certain land, of which the plaintiff claims to be the owner. He put in a claim under Section 246, and failed; and thereupon he brought this suit, to use the words of that section, 'to establish his right.' He sets out his title saying that the land of which he claims to be the owner appertained to 23 bigas II cottas 7 chittaks of land which belonged to one Ram Dhoba; that out of the said land, Ram Dhoba sold 7 bigas, which are in dispute, to Lochunkali; that while Lochunkali was in possession of the said land, he sold it to the plaintiff under a kobala of the 14th Joist, 1269. 'Since then I have been in possession of the same through bhag tenants, by annually paying Rs. 7-14-15 as the rent thereof to the maliks. To this there was no objection offered by anybody.'2. Various issues were raised; and one of ...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal375
Markby, J.1. The question between the parties in this special appeal is, whether or no the decree passed under Section 52, Beng. Act VIII of 1869, by which the defendant was directed to pay a certain amount as arrears of rent within fifteen days, otherwise he was to be ejected, is good in law.2. It appears that the Court below has held that the land to which the suit relates consisted of two portions,--one of which is nagdi land, and the other bhaoli land. There was an objection taken in special appeal that the Court below was wrong in treating any of these lands as bhaoli. But we expressed our opinion in the course of the argument yesterday that there was nothing in that objection. No doubt there was evidence that, for some time, the land had been in possession of a person under the present plaintiff, between whom and the defendant the rent was treated as all payable in money: but that could not alter the terms of the tenancy as between the plaintiff' and the defendant, and when that ...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal357
Macpherson, J.1. There being no suit, has the Court power to make such and order? It is submitted it has. The power which the Court has under the Charter of 1865, Section 16, is the power which the Superme Court had. That Court had the power of the Court of Chancery in such matters; see Simpson on Ifants 223; Daniell's Chancery practice, 1189 and 1190. It appears from these authorities that the Court of Chancery has power to appoint a guardin on pertition without suit. The rules of the Supreme Court on the matter refer to petitions generally without any reference to any suit; see Smoult and Ryan's Equity Rules, 170, [Macpherson, J.-The question is what was the practice of the Supreme Court at the time the High Court was instituted.] see matter of Ann Butler (Morton's Dec., 262), and Ex parte Lokecaunt Mullick (Morley's Dig., Vol II, 42).2. The Court mentions that the order should be to refer if to the Judge in Chambers to enquire whether the petitioners, or any other person to be named...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal359
Macpherson, J.1. On these affidavits I find the facts to be, that, about 10 P.M., on the 20th of December, the firm of Ramlall Budree Doss, merchants in the Burra Bazar, promised at once to give Rs. 5,000 to the insolvent if lie would next morning deliver to them goods to that amount, and would in the meantime satisfy them that he had sufficient goods in his godown and would allow them (Ramlall Budree Doss) to put their lock on the door of the godown so as to secure the goods therein until they had received the value of their Rs. 5,000. Thereupon the insolvent took the gomasta of Ramlall Budree Doss to his godown, lot him see that it contained goods worth more than Rs. 5,000, and allowed him to put his master's lock on the door, while the insolvent, at the same time, replaced his own locks.2. The gomasta and the insolvent then returned to Ramlall Budree Doss' kothi, where Rs. 5,000 were at once paid to the insolvent, who promised to deliver in the morning Bs. 5,000 worth of goods out o...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal356
Markby, J.1. We think that we ought not to make the order asked for, because, even if the case were transferred to the Magistrate to Dacca, we do not think he would have power to release the lunatic upon taking security. The authority of the Magistrate appears to us to cease when the lunatic is handed over to the care of the local Government, and it does not revive until the prisoner is sent back to the Magistrate under Section 432 on a certificate that he is capable of making his defence. The Deputy Commissioner can, if he thinks proper, bring the matter to the Government....
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal355
Markby, J.1. We agree with the Sessions Judge in thinking that the prisoner was wrongly committed. It was proved that the prisoner fished in a public river at a place where the prosecutor had the exclusive right of fishery. The Deputy Magistrate held that this constituted criminal trespass; but we do not think so. The law provides that whosoever enters into or upon property in the possession of another with a certain intent, is guilty of criminal trespass. But though a fishery is property, we do not think that a man who fishes in a public river enters upon property in the possession of another, though he may have no right to fish there. The river upon which the prisoner entered being a public one was not in the exclusive possession of any one, and a right of fishery is not property of such a nature as that a man who unlawfully infringes that right can be said to enter upon property in the possession of another within the meaning of the section....
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal383
Markby, J.1. I think we must hold that this is not a case under Section 277 of the Indian Penal Code. The water which is said to have been fouled was certainly not the water of a reservoir, nor, in my opinion, was it the water of a 'public spring.' The judgment of the Magistrate shows that it was the water of the river Nobogunga. I do not think by the use of the words 'the water of any public spring' the Legislature intended to include the water of a river. On that ground we quash the order and direct the fine, it paid, to be refunded....
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal439
White, J.1. It is to be observed that the present suit is not one in which a son is seeking to set aside a sale of ancestral property made by his father or to recover from a purchaser ancestral property which has been sold in execution of a decree against the father; but a suit in which a creditor, in whose favour a father has created a charge upon the ancestral immoveable estate, is endeavouring to enforce that charge against the share or interest of the sons in that ancestral estate, where the latter were no parties to the charge, and were also minors at the time of its creation. Such being the nature of the present suit, the proposition of law laid down by the officiating Judge amounts to this, that when a creditor brings such a suit, he is entitled to a decree against the sons upon simply proving the loan and the instrument of charge, and that his right to a decree can only be defeated, in the event of the sons showing that the money was advanced for an immoral purpose. In other wo...
Tag this Judgment!Court : Kolkata
Reported in : (1877)ILR2Cal386
Macpherson, J.1. The Court was of opinion that the Sheriff' was entitled to poundage upon the sum actually compromised for, and granted the application subject to such payment of poundage to the Sheriff. The Sheriff' to have the costs of the application....
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