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Shah Ahmed Sujad and anr. Vs. Taree Rai and ors.
Court : Kolkata
Reported in : (1881)ILR7Cal343
Mitter, J.1. On the secondappeal it is urged before us that the lower Appellate Court was in error in reversing the Munsif's decree for cofirmation of possession. The suit was brought on the 3rd May 1878, after the Specific Relief Act came in force. Section 42 of that Act says:---' Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may, in its discretion,' &c.; Now, in this case, no doubt, the plaint does not disclose any facts from which it could be said that the defendants either denied their title or were interested to deny it; but from the proceedings in the lower Court it was established, that, before the suit was brought, there was a dispute between the parties as regards the title of the plaintiffs. That being so, although, under Section 53 of the Procedure Code, the Munsif might have rejected the plaint on the ground that it di...
Tag this Judgment!Attermoney Dossee Vs. Hurry Doss Dutt
Court : Kolkata
Reported in : (1881)ILR7Cal74
Wilson, J.1. This case raises a question which, so far as I know, has not been before decided. I do not think the question is one of any great difficulty; but as the suit is undefended, and I therefore had not the advantage of hearing the matter argued from the defendant's point of view, I thought it right to take time to consider.2. I think the suit is well brought. It may be regarded in either of two ways It may be looked at as a suit upon the former decree. As a general rule a suit lies upon the decree of a Court of competent jurisdiction, unless the right to sue be taken away expressly or by implication. I see nothing to prevent a suit being brought upon a decree of this Court. And the Limitation Act prescribes the period of limitation for such a suit in Schedule ii, Division i, Article 122.3. This suit may again be regarded as a suit supplemental to the former suit, and to revive the decree. And so regarded, I think, the suit is properly brought. Under the older procedure in the S...
Tag this Judgment!Mahomed HosseIn Vs. Kokil Singh and ors.
Court : Kolkata
Reported in : (1881)ILR7Cal91
Richard Garth, C.J.1. This is a rule obtained by Mahomed Hossein, who is the purchaser of certain land at an execution-sale, to discharge an order made by the Subordinate Judge of Patna on the 13th of September 1880, which order set aside the sale made to the plaintiff, directed the purchase-money to be refunded and also directed the judgment-debtor to be restored to possession.2. The rule was obtained on the ground that the Subordinate Judge had no jurisdiction, after the sale had become absolute and had been confirmed by the Court, to make any such order.3. The facts were these. In a suit which was brought by Gridari Mahton against Bissessi Dutt Singh, the defendant obtained a decree dismissing the plaintiff's suit with costs.4. On the 18th November 1878, an auction-sale was held in execution of that decree, at which the present applicant purchased the right, title, and interest of one of the judgment-debtors in certain property, and by a certificate duly granted and dated the 23rd o...
Tag this Judgment!The Empress Vs. Kassim Khan
Court : Kolkata
Reported in : (1881)ILR7Cal121
Garth, C.J.1. We think it plain that, neither the words 'shall answer all questions' in Section 118 of the Criminal Procedure Code, not the words 'shall be bound to answer all questions' in Section 119, of the same Code, constitute' an express provision of law to state the truth' within the meaning of Section 191 of the Penal Code.2. Sections 118 and 119 are in our opinion, merely intended to oblige persons to give such information as they can to the Police in answer to questions which may be put to them, and they impose no legal obligation on those persons to speak the truth, unless we import the word 'truly' in each Section after the word 'questions' which we clearly have no right to do.3. Investigations in a Police Court are not, as a rule, conducted with the same care and accuracy as proceedings in a Court of Justice; and we think that it would be extremely dangerous to the liberty of the subject, if information thus loosely taken by a Police officer could be made the subject of a ...
Tag this Judgment!Koylash Chunder Ghose and ors. Vs. Sonatun Chung Barooie and ors.
Court : Kolkata
Reported in : (1881)ILR7Cal132
Richard Garth, C.J.1. The plaintiffs in this suit claim a prescriptive right of passage for boats over the defendants' land, when it becomes covered with water during the rainy season.2. The first Court found that the plaintiff's had enjoyed this right for upwards of twenty years; and accordingly made a decree for the removal of certain obstructions which were put up by the defendants in June 1876 for the purpose of preventing the plaintiffs from exercising their right.3. The lower Appellate Court does not expressly negative the finding of the lower Court upon the facts, although it throws some doubt upon its correctness. But it has decided against the plaintiffs upon the preliminary ground, that as no actual exercise of the right had taken place within two years before suit, the plaintiffs are barred by limitation.4. From this judgment the plaintiffs have appealed; and we have, therefore, to consider the true meaning of the last clause of Section 26 of the Limitation Act, more especia...
Tag this Judgment!Budree NaraIn Singh and anr. Vs. Khodabux
Court : Kolkata
Reported in : (1881)ILR7Cal137
Cunningham, J.1. In execution of a decree obtained against Pahulwan Singh, the eldest of four brothers, Zemindar the second brother, as guardian of the two youngest, minors, intervened under Section 269, Act VIII of 1859; but his opposition was disallowed on the 9th November 1877.2. On 22nd January 1879, Pryabuttee, the mother of these minors, who has since been appointed guardian in the place of Zemindar, instituted the present suit on their behalf to set [139] aside the order of the 9th November 1877, and to recover possession of the minors' property.3. The only point for our decision in special appeal is, whether this suit is barred by limitation, inasmuch as it has been brought more than one year from the date of the order passed under Section 269. The first Court dismissed the suit as barred, but on appeal the District Judge has set aside this order, and remanded the suit for trial, holding that as the plaintiffs are still minors, no limitation would apply to this suit.4. We are o...
Tag this Judgment!Chundernath Nundi Vs. Hur NaraIn Deb
Court : Kolkata
Reported in : (1881)ILR7Cal153
Tottenham, J.1. It appears to me that the reasons given by the lower Courts for entirely dismissing the plaintiff's suit are not sound in law. It may be that, as observed by the District Judge, the power to make partition of lands paying revenue to Government (that is, as between persons by whom the revenue is payable) is restricted to the Collector; but that restriction does not exclude the Civil Court from determining the right of one of such persons to have his share divided, and from making a decree accordingly, in a suit in which the plaintiff does not seek to have his joint liability for the whole of the Government revenue annulled. In the present case Mr. Bellf or the appellant has expressly deprecated any partition of the Government revenue, and points to the sixth paragraph of the plaint as showing that plaintiff never intended to demand it.2. There can be no doubt that a right to partition is inherent in owners of joint property; and Section 11 of the Code of Civil Procedure ...
Tag this Judgment!Doorga NaraIn Sen Vs. Baney Madhub Mozoomdar
Court : Kolkata
Reported in : (1881)ILR7Cal199
Pontifex, J.1. We are of opinion that the judgment of the lower Appellate Court must be reversed, as we think that the learned District Judge has unduly stretched the doctrine of constructive notice against the plaintiff, appellant. That doctrine, so far as we have to consider it in this case, may be stated as follows: When a person is proved to have had a knowledge of certain facts, or to have been in a position, the reasonable consequence of which knowledge or position would be that he would have been led to make further enquiry which would have disclosed a particular fact, the law fixes him with having himself had notice of that particular fact. For there may be such wilful negligence in abstaining from enquiring into facts which would convey actual notice as may properly be held to have the consequences of notice actually obtained. But if there is not actual notice, and no wilful or fraudulent turning away from an enquiry, into, and consequent knowledge of, facts which the circumst...
Tag this Judgment!The Empress Vs. Gopal Dhanuk.
Court : Kolkata
Reported in : (1881)ILR7Cal96
Morris, J.1. This conviction is bad in law, and must be set aside. The Sessions Judge states that the prisoner pleads guilty to the charge, and that the only question is as to what punishment should be allotted. We find in the proceedings no record of the prisoner's plea, as required by Section 237 of the Code of Criminal Procedure, when he pleads guilty. All that we find is a narrative by the Judge of what occurred and of the statements made by the prisoner. We do not find from this, that the charge was explained as well as read to the prisoner (vide Section 237), and we do find that he did not admit one very important element in an offence under Section 211 of the Penal Code, viz., the intention to injure another. The prisoner is said to have represented that he made the false complaint unthinkingly. This certainly does not amount to a plea of guilty.2. The Judge was further somewhat inconsistent, for, after stating that the prisoner pleaded guilty, he proceeds to show that he was no...
Tag this Judgment!Womesh Chunder Ghose Vs. Shama Sundari Bai
Court : Kolkata
Reported in : (1881)ILR7Cal98
Pontifex, J.1. Who, after stating the facts of the case, continued:---The plaintiff, when he purchased for Rs, 200, does not appear to have made any enquiry as to the existence of the bond. He took no steps to obtain possession of it or to satisfy himself that if it had really been executed by the defendant No. 1, it still existed uncancelled and untransferred by Ramjoy Sircar. His purchase was, in fact, a mere speculative purchase, and may have been a collusive one. In this suit, the plaintiff neither produces the alleged bond, nor does he adduce any evidence that it is still in existence uncancelled; or that, at the date of his purchase, Ramjoy Sircar continued to be interested under it. But he made Ramjoy Sircar a defendant to the suit, and served him with notice to produce the bond, which, however, was not produced; nor was it shown to be in Ramjoy Sircar's possession or power. Upon this he sought to use a copy from the Registry Office as secondary evidence. But making Ramjoy Sirca...
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