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Sarat Soondary Dabea Vs. Anund Mohun Surma Ghuttack and ors.
Court : Kolkata
Reported in : (1880)ILR5Cal273
Richard Garth, C.J.1. This is a suit by the zamindar to enhance a ten-annas share of a dependant taluq.2. The only defence which it is necessary for us to consider, is, that the taluq in question has been held at a fixed rate of rent from before the time of the Permanent Settlement.3. The lower Court has found, that the ten-annas share, which it is sought to enhance, has been held at a fixed rent of Rs. 510-13-5 for the last twenty years, and consequently that the rent cannot be enhanced.4. An objection has been taken by the plaintiff (the appellant), that the evidence upon which the lower Court has found this fact is insufficient in point of law; but we think that there was some evidence to justify the finding, and that the sufficiency of it was a question for the Court below.5. There are, however other circumstances in the case, which raise an important point of law, and to which the Judge does not appear to have attributed their due weight.6. It appears that upwards of twenty years ...
Tag this Judgment!In Re: Cheni Bash Shaha Vs. Kadum Mundul
Court : Kolkata
Reported in : (1880)ILR5Cal97
Jackson, J.1. We think this a very clear case; it must be determined with reference to the 75th article of the Limitation Act of 1877. At the time when the contract was entered into, the Act of 1871 was in force, of which, so far as concerns this case, the provisions were identical with those of the Act now in force.2. By waiver in this case, we think, is meant a waiver of the condition by which in default in payment of any one instalment the whole amount unpaid became immediately payable. A waiver of that stipulation consists in the receipt of an instalment after due date, instead of insisting on payment in full. That is quite a different thing from an absolute sleeping on his rights. The creditor here has not waived the stipulation, but has simply allowed time to go on.3. The time, therefore, began to run from the first default....
Tag this Judgment!Parbuttinath Roy and ors. Vs. Tejomoy Banerji and ors.
Court : Kolkata
Reported in : (1880)ILR5Cal303
Jackson, J.1. It appears to us that this suit was really barred. It was a suit brought by the plaintiffs against their agent and his sureties, on the ground that the defendant No. 1 had been appointed Naib for the purpose of collecting the plaintiffs' share of the rent of Pargana Ballia and others, the duties of which office he continued to perform until Bhadro, 1281 (August or September, 1864); that he then gave up his post and went away; that being afterwards sent for he came to the plaintiffs in Joisto, 1283 (June, 1876), when a settlement of account was arrived at, which was signed by the defendant. There was also an allegation as to the defendant having collected and received monies on other accounts, but nothing of that sort appears to have been found in the Courts below.2. As to the liability of the sureties, the lower Appellate Court has found that the plaintiff's have no case because their undertaking was in respect of service under five persons, and the service was actually n...
Tag this Judgment!Obhoy Nund Roy and ors. Vs. Shoteenath Moorkerjee and ors.
Court : Kolkata
Reported in : (1880)ILR5Cal331
Jackson, J.1. We think it clear that the Subordinate Judge in this case is wrong, and that the suit was barred.2. The plaintiffs sued to obtain a partition by declaration of their purchased right, and for use and occupation at pleasure of a moiety of certain premises.3. It seems that, on the 31st January 1863 they had purchased a half-share in a certain house, which originally belonged to defendants Nos. 1 and 2. They took no steps at the time to obtain possession; but, in 1869, the Nazir was directed to put them into possession, and he gave them what is called symbolical possession; but the plaintiffs not being satisfied with that, applied further to the Court, and in August 1871 they succeeded, with the assistance of the Nazir, in obtaining ingress into one of the rooms in this house. The Subordinate Judge does not find that they retained such possession for more than a minute, and it is admitted that the defendants did at once, or almost at once, resume possession, and have since co...
Tag this Judgment!Auhindro Bhoosun Chatterjee Vs. Chunnoololl Johurry and anr.
Court : Kolkata
Reported in : (1880)ILR5Cal101
Pontifex, J.1. Decree for an account of principal and interest due on the mortgage to the plaintiff, in default of payment the property to be sold and plaintiff to be paid first, after satisfaction of the decree of Bolai Doss Mullick if there is then a surplus account to be taken of what is due to Protab Chund Mullick, and surplus to be applied for payment of his claim. If property has been sold under previous decree, claims to be satisfied out of surplus....
Tag this Judgment!Daimoddee Paik Vs. Kaim Taridar and anr.
Court : Kolkata
Reported in : (1880)ILR5Cal300
Jackson, J.1. The point raised in this special appeal is one which was considered on more than one occasion previously. We have no doubt that the Judge is in error in thinking that the parties are at liberty to rely upon the evidence furnished by the conduct of parties for the purpose of varying, adding to, or subtracting from the terms of a written contract. The evidence so given can only be evidence of an agreement which, as it was not written, must have been oral, and that is in distinct violation of the terms of Section 92 of the Evidence Act. The case decided by the Pull Bench was before the Evidence Act came into force, and moreover, I understand, in that case there was a written instrument relied upon, viz., a kabuliat, and the evidence of conduct was adduced by the learned Chief Justice as giving support to that written instrument so as to make it probable that the parties had really intended a mortgage and not a sale out-and-out. I am referred to the case of Madhub Chunder Roy...
Tag this Judgment!BepIn Behari Singh Vs. the Government
Court : Kolkata
Reported in : (1880)ILR5Cal325
Mitter, J.1. In this case the Munsif awarded a partial decree in favour of the plaintiff, but on appeal the District Judge has reversed the judgment of the Munsif, and has wholly dismissed the plaintiff's suit.2. The decision of the District Judge is based upon two grounds:In the first place, he is of opinion that, after the lease to the proprietor of the mehal had been cancelled, and the zemindari had been brought under khas management, the Collector had the right to recover the arrears which were due to the proprietor whose lease was cancelled. The second ground upon which the District Judge has dismissed the plaintiff's claim is, that as regards the claim for Rs. 635, the plaintiff has no cause of action, and that the balance was justly recovered by the Government from the plaintiff under a certificate.3. As regards the first ground of the decision of the lower Appellate Court, we do not think that it is necessary in this case to express any opinion. But we are of opinion that, havi...
Tag this Judgment!Dwarkanath Mytee Vs. Junmajoy Mullick
Court : Kolkata
Reported in : (1880)ILR5Cal287
Mitter, J.1. This is a suit to recover possession of 31 bigas and 5 cottas of land as appertaining to Mouza Hijultola. A dispute arose between the plaintiff and defendant as to the boundary of their respective villages during the survey of 1873. The defendant, who is the owner of Mouza Kasiabheri, claimed the disputed land as appertaining to his mouza. The survey authorities decided that question in favor of the defendant, and the lands in suit were included in the survey map of Kasiabheri. The plaintiff has, therefore, brought this suit for the rectification of the survey map, and also for recovery of possession of the lands in dispute. The Courts below have decreed the claim of the plaintiff.2. One of the documents produced by the plaintiff in support of his claim, is a map of Hijultola, prepared by a Government officer when it was in the possession of Government as a khas mehal. The lower Courts have admitted this document as evidence in the case under Section 83 of the Evidence Act...
Tag this Judgment!Goury Pershad Vs. Sunkur Pershad
Court : Kolkata
Reported in : (1880)ILR5Cal321
Broughton, J.1. The plaintiff (respondent) sued his brother the defendant (appellant) in this suit for Rs. 3,065 principal and interest, and being, as he describes it, the amount of debt due by the defendant and paid in excess by the plaintiff. The plaint is defective in so far that it omits to state that the money was paid for the defendant at his request, but if it appeared that the money was in fact paid for the defendant at his request, express or implied, that defect might be remedied.2. The case for the plaintiff is as follows:He says that when he and his brother were joint, that is to say, before September 1870, when they separated, he borrowed the money on bonds from a money-lender, and spent it for the joint benefit of himself and his brother; these bonds were signed by the plaintiff alone, and the money-lender sued him, and got a decree upon one of them. In order to avoid execution of this decree, and to retire another bond upon which no suit had been brought, the plaintiff c...
Tag this Judgment!Bukronath Singh Vs. the Government of India and
Court : Kolkata
Reported in : (1880)ILR5Cal389
Jackson, J.1. This is an appeal from the judgment of a Division Bench, in which the opinion of Mr. Justice Markby as the senior Judge prevailed over that of Mr. Justice R.C. Mitter.2. The suit originally commenced in the Court of a Munsif, in the district of West Burdwan; was afterwards transferred to that of the District Judge, as it appeared to have been greatly undervalued. Bukronath Singh, the plaintiff, asked for a confirmation of possession and declaration of title in respect of Mouzas Dekhia and others, which he alleged himself to be holding as his jagir mehal, subject to, and in consideration of, the performance of certain public duties. It appeared that his father had, in like manner, held these mouzas; that the defendant, who was the zamindar, having an unsatisfied decree against the father, had attached the mehal as the property of the judgment-debtor, and, notwithstanding the plaintiff's objection, caused it to be sold in satisfaction of such decree. The plaintiff alleged t...
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