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In Re: Dijahur Dutt and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal648
1. The order of the 8th November is illegal, because the Magistrate had no power to order the case to be retried; he ought to have referred the case to the High Court, under Section 296 of Act X of 1872, for final orders. The case, being one under Sections 143 and 352 of the Penal Code, was triable by a Magistrate only; and the District Magistrate had not the power to direct the order of discharge to be re-opened-Kistoram connected system of irrigation for what are now the plaintiff's and defendant's mouzahs, beneficial to both states, was by these means provided. The fact that this lower reservoir, which seems to have acquired the name of the Chahul Tal, was built mainly on the defendant's mouzah, leads irresistibly to the conclusion that it was constructed by, or with the consent of, the then owner of that mouzah; and it is evident from its situation, that its main, if not only, use was to store water for the convenient irrigation of the plaintiff's mouzahs. Then it is proved that th...
Tag this Judgment!Promothonath Roy Vs. Juggobundhoo Shaha
Court : Kolkata
Reported in : (1879)ILR4Cal767
Jackson, J.1. The point submitted to us in special appeal is very short. It is whether the defendant, by reason of having enjoyed for a number of yeas on payment of rent to successive ijaradars, the right of fishery over a certain jalkar of which the plaintiff is the ground landlord, is entitled to retain and enjoy that right of fishery on payment of rent to the plaintiff against his will That is not, as appears to me, precisely the case submitted by the defendant to the Court below, for he set up in fact an independent title. He says in para 7 of the written statement that the daha, over which the fishery right had been exercised, was not formed in the mode alleged by the plaintiff; and he says: 'Even if for argument's sake it be admitted that the channel of the katadara was excavated afterwards, still, as according to the map produced by the plaintiff the katadara appears to lie contiguous to my jalkar property, I am legally entitled to the right thereof, and the plaintiff is not ent...
Tag this Judgment!Ram Gobind Chowdhry and anr. Vs. Tarachand Biswas and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal778
Jackson, J.1. The point for decision in this case is no doubt one of some importance, and if we entertained any serious doubt upon it, we should certainly have reserved it for further consideration. But it really seems to us not to admit of any question.2. The learned Counsel for the appellants rested his contention upon several points:First, that the rule of English law as to guarantee for quiet enjoyment, which is involved in a demise of property has not been applied to cases in this country; next, that a darpatni is not a lease, but is rather an out-and-out sale; third, that if there were any general principles which otherwise enabled a purchaser to look for indemnity, he had deprived himself of that protection by making a particular stipulation; and last, that in fact the purchaser has had his consideration for that for which he paid the value, and therefore he has no right to be indemnified.3. Now, it seems to us that patnis, darpatnis, and sepatnis, although they may not be in st...
Tag this Judgment!Sreram Chandra Lerkan Vs. BipIn Dass and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal710
Mitter, J.1. We concur with the Judge that the order of the Deputy Magistrate of Ranaghat, dated the 7th September 1876, in the above-mentioned case is illegal, and must be quashed.2. One of the questions raised before the Judge was, that Beng. Act II of 1867 has not been extended to Ranaghat in accordance with the provision of Section 11 of that Act. Upon this point the Judge has expressed no opinion, and we have before us no materials from which we can say it has been extended to Ranaghat. But taking it for granted that it is applicable to Ranaghat, we still think the conviction in this case cannot stand.3. It is clear that proceedings were commenced by an act on the part of a police officer, who, under Section 5 of the Act, was not authorized to do it. The Notification referred to in the explanation of the Deputy Magistrate submitted to the Judge would make the deputation of a Sub-Inspector of Police for entering and searching an alleged gaming-house legal, but he must receive his a...
Tag this Judgment!Unnoda Churn Das Biswas Vs. Mothura Nath Dass Biswas and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal860
Richard Garth, C.J.1. Mr. Justice Markby's view appears to have been founded on the supposition that the sale of the patni did not of itself avoid the under-tenure, unless it was followed by an intimation by the purchaser or those claiming under him, that he or they intended to exercise their right to cancel it, or, in other words, that the under-tenures were only voidable at the option of the purchaser or his assigns, and that this option must be exercised within a reasonable time.2. Now the language of Beng., Act VIII of 1865 is, that 'purchasers of tenures sold under that Act acquire them free from all incumbrances which may have accrued thereon by any act of any holders of those tenures, their representatives, or assigns.'3. I think that must mean, that at the time when the purchaser acquires the tenure, all under-tenures created by the former holder of the tenure are ipso facto avoided by the sale; and that he and those claiming under him are by Article 120 of the Limitation Act e...
Tag this Judgment!Bussun Lall Shookul Vs. Chundee Dass and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal687
Richard Garth, C.J.1. The Judges of the Division Bench having differed in opinion, and the judgment of the senior Judge having prevailed, this case comes before us on appeal from his decision.2. The suit was brought by the plaintiffs to obtain a decree declaring that certain lands, which they hold as tenants to the defendant at a rent of Rs. 105, comprised an area of 8 drones, 7 kanis, and 2 gundas.3. The Division Bench were agreed that, upon the facts proved, the plaintiff's were entitled to the relief which they prayed. But the objection made by the defendant, upon which the learned Judges differed in opinion, was, that in a suit, No. 308 of 1874, which was brought by the present defendant against the present plaintiffs for arrears of rent, an issue was distinctly raised between the parties, whether the land held by the plaintiffs at the rent of Rs. 105 was 4 drones, 7 kanis, and 19 gundas, as the then plaintiff contended, or 8 drones, 7 kanis, and 2 gundas, as the then defendants co...
Tag this Judgment!Luckhy NaraIn Vs. Kally Puddo Banerjee
Court : Kolkata
Reported in : (1879)ILR4Cal882
Birch, J.1. In this case we think that the order of the Judge cannot be supported, as he has proceeded upon a wrong principle. It seems that some accounts were filed by the decree-holder showing the rents payable by the farmers of the estate under the arrangement subsisting before the dispossession; but they have not been sent up to this Court. Probably they have by mistake remained in the lower Court. The principle upon which wasilat should be estimated in this case is to ascertain from the decree-holder what sum he has realized in respect of the 7-anna share which remained in his possession during the years for which wasilat is claimed, and on a comparison of his account as to that 7-anna, it will be easy to fix the proportionate amount due upon the 9-anna share from which he was dispossessed under the decree of this Court. The Judge remarks that 'the point he has to consider is not what the decree-holder might by another course of management have realized during the period in questi...
Tag this Judgment!Bhugeeruth Berah Vs. Moneeram Banerjee and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal855
Birch, J.1. In this case the Munsif gave the plaintiff a decree, holding that he being the purchaser of a one-anna share in the tenure, and. having been recognized by the zamindar as tenant thereof, the sale in execution of the decree against Behari could not pass the rights of the plaintiff to the purchaser Moneeram. The Munsif says that he does not see any reason why the plaintiff should lose his share because the sale took place in execution of a decree for arrears of rent of which decree he had no notice. And he accordingly gave the plaintiff a decree.2. Upon appeal the Subordinate Judge has dismissed the plaintiff's suit upon the ground that there was no evidence of any fraud on the part of the purchaser Moneeram, and that Moneeram had acquired an unimpeachable right in the property by reason of his purchase. Upon the case coming up in special appeal, it was sent down to the Subordinate Judge to try an issue as to whether the plaintiff was, as alleged, the koorfa tenant under Beha...
Tag this Judgment!ChIn Hong and Co. Vs. Seng Moh and Co.
Court : Kolkata
Reported in : (1879)ILR4Cal736
Garth, C.J.1. We think there is no ground for this appeal. In order to make the defendants liable for the loss of the goods in question, it should have been shown that the defendants had no right to land them upon the godowns.2. Perhaps Mr. Bell may be justified in saying that, by the terms of the bill-of-lading the defendants were bound to give the plaintiffs the option of landing the goods 'from the ship's tackle,' and that they had no right to land them at the godowns without giving the plaintiffs that option.3. But then we think it clear from the evidence that the plaintiffs consented to the goods being landed at the godowns.4. It appears that when once the ship had been placed alongside the wharf, the goods could not have been landed from the 'ship's tackle,' according to the proper meaning of that expression, and that the only way to land them then was at the godowns; and the plaintiffs evidently consented to this course, because they paid without objection a sum for wharfage, &c...
Tag this Judgment!Dwarka Nath Misser Vs. Hurrish Chunder and ors.
Court : Kolkata
Reported in : (1879)ILR4Cal925
Jackson, J.1. Notwithstanding the remarkable ingenuity displayed by Baboo Rashbehary Ghose, we are unable to discover that his argument amounts to anything more than an attempt to establish in an exceptional case that rights of occupancy are transferable. The mode in which, and the circumstances under which, the power of transferring such rights is sought to be exercised will continually vary, and although it might be possible to lay down a comprehensive rule which should suffice to exclude other such conceivable cases, I am not, for my part, anxious to frame any such formula. As I said during the argument, I desire in every case coming before me to decide that case to the best of my ability. Of course when in any decided cases, whether by myself or other Judges of the Court, we come upon arguments and considerations which are applicable to the case before us, although the two cases may not be precisely alike, I am very willing and ready to use those arguments. Now the matter under con...
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