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Lekhraj Roy and ors. Vs. Kunhya Singh and ors.
Court : Kolkata
Reported in : (1878)ILR3Cal210
M.E. Smith, J.1. This suit was brought by the present appellants to obtain possession of an eight-anna share of Mouza Toee, and the plaint also prays for the annulment of the mokurari tenure which the respondents claimed to have in the mouza under a potta granted by one Choonee Lall. The appellants are the purchasers under a decree obtained against some persons who had become possessed of part of the interest of Choonee Lall in the eight-anna share of the mouza. The respondents are the heirs of Nirput Singh, who was the grantee under the potta. The single question in this appeal is, whether, upon the true construction of this potta, and upon the evidence in the case, the grant was one to endure for the life of Nirput Singh only, or whether it was to endure so long as the interest of Choonee Lall existed. That involves also an inquiry into what the interest of Choonee Lall was.2. The lease or potta in question is dated in April, 1808, and the material parts of it are in these terms: 'Th...
Tag this Judgment!Ram Soonder Surma Mozoomdar and ors. Vs. Bhoobun Chunder Sen
Court : Kolkata
Reported in : (1878)ILR3Cal301
Birch, J.1. (after stating the facts, continued as follows): I do not treat the suit as one brought to annul the sale on the ground of its having been made contrary to the provisions of Act XI of 1859. What the plaintiff seeks to establish in this suit is, that by the fraud of the defendant they have been deprived of their property, and they ask to be relieved from the effect of that fraud and to be placed in the position in which they were before the auction-sale took place. To such a suit the provisions of Act XI of 1859 in restriction of suits to annul sales cannot, in my opinion, be extended. We have to look to the general law of limitation, and treating this as a case for relief on the ground of fraud, the suit is clearly within time. [His Lordship then proceeded to deal with the facts of the case.]2. The Subordinate Judge has decreed the suit and ordered that the plaintiffs obtain possession of the share claimed with costs and interest thereon from defendants 2 and 3. He has also...
Tag this Judgment!imperatrix Vs. Pitamber Jina
Court : Mumbai
Reported in : (1878)ILR2Bom61
Michael Westropp, C.J.1. We are unanimously of opinion that the question which Mr. Inverarity proposed to put to the cart-driver Bala Ramji, in cross examination; was, under the circumstances, admissible. On hearing the arguments, we have come to the conclusion that Section 25 of the Indian Evidence Act (I of 1872) does not preclude the counsel for one accused person on behalf of his client, asking questions to prove a confession made by another accused person. But under such circumstances it would be the duty of the Judge to instruct the jury that such confession is not to be received or treated as evidence against the person making it, but simply as evidence to be considered on behalf of the other. We also think that, unless the law were so, the accused person who was on his trial with the confessing party, might be considerably prejudiced by the exclusion of that evidence. The 25th section only provides that 'no confession made to a police officer shall be proved as against a person...
Tag this Judgment!Jamnadas Shankarlal and Vrijbhukhan Shankarlal Vs. Atmaram Harjivan
Court : Mumbai
Reported in : (1878)ILR2Bom133
West, J.1. The defendants Jamnadas and his brother being minded to rebuild their house, which lay contiguous to that of the plaintiff, commenced the requisite works in January or February 1872. The plaintiff Atmaram being apprehensive of injury to his house, through an obstruction to his upper windows, delivered to the defendants the notices, Nos. 34 and 35, dated, respectively, the 14th February and 9th March 1872. The defendants proceeded notwithstanding these notices to re-erect their house at a distance of one foot from Atmaram's, and carrying it up beyond its former height, they have so obstructed the plaintiff's windows that 'the two central rooms on the east side of his house, on the second floor, have been made unfit for occupation in the day time without artificial light.' The Assistant Judge holding that the plaintiff's property had thus been rendered 'in a material degree unsuitable for the purposes to which it is now applied,' followed Lord Westbury in Jackson v. The Duke o...
Tag this Judgment!In Re: Janokey Nath Roy
Court : Kolkata
Reported in : (1877)ILR2Cal466
Richard Garth, C.J.1. We are clearly of opinion that no appeal lies in this case, and that we ought not to grant leave to admit the appeal. Leave granted by a Judge to institute proceedings is not a 'judgment' within the meaning of Clause 15 of the Charter. If authority were wanted, the case of The Justices of the Peace of Calcutta v. The Oriental Gas Co. 8 B.L.R. 433 would be ample authority for our judgment. But apart from that, this leave given by the Court is the creation of a late Statute. It is a power which did not exist when the Charter was passed. It is a power of a peculiar kind. The object is to check rash proceedings in criminal matters being taken. It gives power to take proceedings, which could not have been taken without leave. As the Legislature has not thought fit to give an appeal from such an order, we think that this appeal should not be admitted....
Tag this Judgment!Koegler Vs. Prosonno Coomar Chatterjee
Court : Kolkata
Reported in : (1877)ILR2Cal472
Kennedy, J.1. I have not been referred to any authority which shows me that the old practice with respect to the addition of parties to a suit has been retained. The Civil Procedure Code seems to have been introduced by the rules of this Court as laying down the entire practice. Section 73 of that Code is the only section which provides for adding parties, and by that section parties can only he added where they 'may be entitled to, or claim some share or interest in the subject-matter of the suit, and may be likely to be affected by the result.' Probably the framers of the Act had in their minds suits for land. I do not think, therefore, that a person who is not entitled to, and who does not claim, any interest in the subject-matter of a suit can be made a party to it. By the old practice any number of persons who were necessary parties were considered as being parties having an interest in the matter of the suit, except in matters of contract. Under the Contract Act the distinction b...
Tag this Judgment!Lungessur Kooer Vs. Sookha Ojha
Court : Kolkata
Reported in : (1878)ILR3Cal152
L.S. Jackson, J.1. In answering on my part the question referred to the Full Bench, I have little to add to the reasons which I gave in referring this case. Those reasons, to my thinking, have not been answered. It is suggested that the question raised here has been virtually decided by a long course of practice, and also by the ruling of the Full Bench in the case of Brojo Misser v. Ahladi Misrani 13 B.L.R. 376; S.C. 21 W.R. 320; and that we ought not, whatever our view might have been, if the question were now raised for the first time, to disturb such a course of practice. It seems to me that, although it is extremely desirable to maintain a long settled ruling in regard to matters in which the security of titles depends, or even where to arrive at a contrary decision would disturb the practice of inferior Courts, it is not necessary to do so in the present instance, where no man's title can be affected, nor can any possible inconvenience arise by the mere admission of the present a...
Tag this Judgment!Sheik Piru Vs. Mohesh Mahto and anr.
Court : Kolkata
Reported in : (1877)ILR2Cal471
Richard Garth, C.J.1. We are of opinion, that as this was a suit cognizable by the Court of Small Causes, no special appeal lies to this Court, although a question of title may have been incidentally raised in it. The appeal will, therefore, be dismissed....
Tag this Judgment!Sahebzada Roy Vs. Raj Koomar Singh and ors.
Court : Kolkata
Reported in : (1878)ILR3Cal20
Richard Garth, C.J.1. As this question has arisen from a conflict of opinion between individual Judges, Reporter's Note--The rule as at reference to a Full Bench, passed in July, 1867, provides for reference to a Full Bench only where on Division Court differs from another Division Court on a point of law : and a Division Court is, by Section 13 of 24 and 25 Vict. C. 104, the Act establishing the High Courts, to consist of two or more Judges. Here the cases in which there was a conflict of opinion were decisions by one Judge sitting alone, it ought, properly speaking, not to have been the subject of reference to a Full Bench. But as the reference has been made, and the question is one of general importance, we have thought it desirable to decide it.2. We are of opinion that as the obstruction in this case has caused special injury to the plaintiff, the Civil Court was perfectly justified in directing it to be removed.3. The Criminal Code, no doubt, contains provisions for the removal o...
Tag this Judgment!Kali Churn Dutt Vs. Jogesh Chunder Dutt
Court : Kolkata
Reported in : (1878)ILR3Cal30
Ainslie, J.1. It is obvious, that the defendant has received from the plaintiff, under successive decrees made during the long period that elapsed between the decree for enhancement and the reversal of that decree by the order of Her Majesty in Council, sums of money for enhanced rent, to which the final order in the enhancement suit shows that be is not entitled. The plaintiff as tenant persistently refused to acknowledge his liability, and compelled his landlord to recover the rent by suit, in order, as I understand it, to have a formal record that be only paid it under compulsion. The Courts were bound to follow the existing judgment by which the liability of the plaintiff to pay enhanced rent had been declared. They had no option in the matter at the time. Under such circumstances, I cannot conceive that it was their intention to declare finally that the defendant was entitled to the enhancement for the periods covered by the several suits, irrespective of the result of the appeal ...
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