Court : Kolkata
Reported in : (1876)ILR1Cal127
Glover, J.1. In Rajmohini Chowdrain v. Denobundhoo Chowdree it is decided that 'Section 6, which is the only section which refers to the right of appeal, limits it to the question of the grant of the certificate. This Court would be able to decide on appeal whether the Judge had selected the proper person to give the certificate to, but there is no section which gives any appeal with reference to the amount of security which the Judge may think it right to demand from the applicant for a certificate, and there is no general section as there is in the cognate Act XL of 1858 with regard to appeals.' And in Bani Madhub Mooherjee v. Nilambur Banerjee 8 W.R. 376 it is said with reference to Section 6,--'the intention of the section was to enable a person aggrieved by the granting of a certificate to some other person to come before the Sudder Court and appeal against such grant.' And the gist of the decision is that, except with reference to the grant of a certificate, there is no appeal al...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal56
Richard Garth, C.J.1. The plaintiff, therefore, having had then ample warning, must now be considered as having made the allegations in his plaint as strong and precise as was consistent with truth, and we cannot make any presumption in his favour which the language of the plaint does not strictly warrant.2. (His Lordship then stated the allegations made in the plaint and continued): The learned Judge in the Court below considered in the first place that there is nothing on the face of the plaint to show that the proceedings of the Sheriff and also of the execution-oreditor, the present defendant, were not perfectly bond fide; and in this we entirely agree. Whatever illegality or irregularity took place appears to have been the result of mistake; and there is nothing to show that any of the parties had the least notion that they were doing anything but what the law warranted.3. It is stated, however, distinctly in the plaint, and we must assume it as established, that the Sheriff has n...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal101
Glover, J.1. Baboo Moheshchunder Chowdhry, who has appeared for the opposite party, contends that the law does not provide for a review in a case like this, and has quoted in support of his argument the case of Siva v. Chenamma 5 Mad. H.C. Rep. 417 in which it appears to be laid down that the provisions of the Code of Civil Procedure regarding reviews of judgment are not applicable to orders passed under Act XXVII of 1860, but there is another case which has been decided in this Court, namely--that of Hameeda Beebee v. Noor Beebee 9 W.R. 394 in which the contrary has been ruled, and which ruling we think we ought to follow. We see no reason why this Court should not exercise jurisdiction in the matter and consider the merits of the application for demanding security to be taken from Mussamut Khatun Kooer to whom the certificate has been granted....
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal185
Richard Garth, C.J.1. In this case the same question arises as in the last Beni Madhub Ghose v. Kali Churn Singh see post p. 201 note with this difference: 1st, that the Subordinate Judge of Sylhet reviewed his own decision instead of his predecessor's; and 2ndly, that he gives as a reason for the review that he was referred by the pleader to two authorities, decided by the High Court many years ago, one of which he considered to be opposed to his former judgment. He, accordingly, made an order for the review, and reversed his previous decision.2. But the case appears to us to depend upon precisely the same principle as the last, and must be decided in the same way. It is less objectionable, no doubt, in one sense, for a Judge to review his own decision than that of his predecessor's; but he has no more right to do so without sufficient reason in the one case than in the other; and we cannot consider that the production of an authority to which the attention of the Judge was not called...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom209
Marriott, J.1. As I hold that the piece of land in question was purchased by and was the land of the ancestors of the plaintiff, and the defendant admits that the plaintiff represents the original purchaser, it follows that the plaintiff is entitled to a verdict, unless the defendant can show that the plaintiff has ceased to be such owner, and the defendant acquired a title as owner either by purchase or by adverse possession.2. The defendant has filed his written statement, in the 1st and 2nd paras. of which he sets out his title to hiss dwelling-house and the land belonging thereto. In the 3rd para. he says: 'The said premises, when purchased as aforesaid by the defendant, consisted of a building with a compound at the rear thereof, and on the south side of the said compound was a vacant piece of land belonging to the plaintiff, who had also encroached, to the extent of 22 1/2 square yards on the land of the defendant at the south corner of the said compound of the defendant's premis...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal202
Richard Garth, C.J.1. The plaintiff brings this suit for the purpose, as she says, of obtaining an abatement of her rent for the future; and she claims in this suit the precise measure of abatement, Rs. 155, which she had claimed in the suit brought against her by the defendant. The defendant's answer is, 'this question which you now seek to raise, has already been decided between us in the former suit. You claimed the same abatement then as you do now. You attempted to establish it upon the same grounds. You went into the question, not as if the abatement were for one particular year, but for the whole remainder of your interest; and from the very nature of the question, you could not have gone into it upon any other basis.' Nature of the question, you could not have gone into it upon any other basis.' The plaintiff's reply to this is--'no. Your claim then was for the rent of one year only: my defence must necessarily have been confined to that one year; and the result could not bind ...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom523
Michael Westropp, C.J.1. This action was brought by the plaintiff as proprietor of a moiety of the village of Nanej, to recover from the Mamlatdar the plaintiff's half of the land rents for the year 1870-71 wrongfully, as the plaintiff alleges, intercepted and withheld by the Mamlatdar.2. The Assistant Judge, who tried the suit, awarded a part of the claim; but the District Judge, on appeal, reversed this decision on the ground that the suit related to a grant of land revenue and, as such, was, for want of the certificate required by Act XXIII of 1871, barred by Section 6 of that Act.3. The only question, therefore, before us is, whether Act XXIII of 1871 operates so as to deprive the Ordinary Civil Courts of jurisdiction in a suit brought under such circumstances as present themselves here.4. The sanad, whereby the village (or perhaps we should rather say so much of it as belonged to the Satara Government) was granted to Visaji Rav Mandlik, the ancestor of the plaintiff, (special appe...
Tag this Judgment!Court : Mumbai
Reported in : (1877)ILR1Bom97
Michael Westropp, C.J.1. The findings of fact of the Joint Judge are, in special appeal, binding on this Court. Teja Kurad, Gau, and all of the parties to this suit, are admitted to belong to the Sudra tribe, and it has not been denied that their caste is one in which the custom of remarriage prevails. The pleader for the special appellants at first contended that non-access of Bhagu to Gau was not found as a fact, but when offered by this Court an issue on the question of access or non-access, declined it, and abandoned that point. He contended, however, that as the Pat marriage was void, inasmuch as Gau had not been divorced from Bhagu, who was still living, the plaintiff must be regarded as the result of an adulterous intercourse, and, therefore, could not be deemed such an illegitimate child as might, by the Hindu Law applicable to Sudras, succeed to the estate of his putative father. Whether, under such circumstances, the plaintiff is entitled as illegitimate son of Teja Navsaji, ...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal79
Phear, J.1. The prisoner Omritolall Dey has been brought before this Court in obedience to a writ of habeas corpus ad subjiciendum. The return to the writ is that Omritolall Dey was received into the custody of the Superintendent of the Presidency Jail under and by virtue of a warrant of commitment to the following effect (reads warrant of commitment, ante, p. 79), and that he is detained under the authority of this commitment, and for no other cause.2. The affidavits which have been filed on behalf of Omritolall Dey disclose facts which, if they are true, show that when Omritolall was taken by the bailiff he was privileged from arrest, and that therefore the commitment was illegal. It follows that as the jailor shows no other cause for detaining his prisoner the detention is illegal and he ought to be discharged. The commitment, however, purports to be a commitment made by the Court of Small Causes by way of execution of its own judgment in a civil suit, and therefore a commitment suc...
Tag this Judgment!Court : Kolkata
Reported in : (1876)ILR1Cal104
Phear, J.1. The testator directs his eldest son to pay out of the profits of his business Rs. 200 a month for the family expenses of his sons, if they remain living in commensality, or Rs. 70 a month to himself, Gonesh Chunder and Rs. 43 and odd annas to each of the three other sons if they separate. This is to go on for twenty years, Gonesh Chunder managing the property meanwhile, if he dies, the next son in succession is to be manager and so on, and the rest of the profits over and above the Rs. 200 per month are directed to be invested and accumulated. Then the testator declares reads portion of 1st paragraph set out, q. v. supra I.L.R. 1 Cal. 105. Afterwards in the 5th paragraph of the will he says reads 5th paragraph, q. v. supra I.L.R. 1 Cal. 105.2. I entertained some doubts at first whether the passages which I have read amounted to any disposition of the property other than the Rs. 200 a month during the period of twenty years, The words 'neither he nor any of my other sons sha...
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