Womeshchunder Roy, versus Mr. E. Robert,
Woolfuttunnissa Beebee, versus Dhun Beebee and others,
Woomanath Roy and others, versus Roghoonath Mitter,
Woopassee Beebee, versus Buxoo Nussoo and others,
Woottumchunder Hazrah, versus Ramchunder Roy Mohashoy and
others,
Wuzeer Ahud Hosseinee Chowdree, versus Musst. Meheroonissa
Khanum and others,
Zuneshur Dass, versus Baboo Sectulpersaud Roy and others,
THE CAUSES OF ACTION AND THE PRINCIPAL POINTS
Plaintiffs' evidence was not sufficient to shew that defendant, as gomashta of their zemindaree, owed them the balance alleged to be due. Lower court's order reversed,
See Compromise, No. 3.
ACCOUNT BOOKS.
Held by the Court, in accordance with the principle established in previous precedents of the Court, that the books of a firm alone are not sufficient evidence of a debt; that vouchers signed by the debtor or his agent are not absolutely necessary to enable a party to fix a debt, but that extrinsic evidence of some sort is necessary to support the account books of the firm, standing in the position of creditors to the party sued, to enable the firm to obtain a decree against their debtor.
Case remitted to the judge, with directions that he will look to all the evidence on the record, and, after scrutinizing it, and calling for further evidence, if necessary, that he will determine, with the aid of assessors, whether it lends such support to the books of the plaintiff, which are clearly trustworthy in themselves, as will enable him, upon the principle laid down, to pass a decree against one or all of the defendants for the whole or a portion of the claim preferred by the plaintiff in this suit,
ACT XXXII. OF 1839.
See Interest, Nos. 1, 6.
ACT X. 1839.
Held that the order of a judge, passed under Section I. Act X. of 1839, rejecting an application to sue in forma pauperis, is appealable to the Sudder Dewanny Adawlut, and that the rule laid down in Construction No. 1356 is correct,
1. A deputy collector engaged in settling a resumed mehal,
cannot take an Act IV. decree as decisive of possession,
2. Suit being laid on a title created by an ikrarnama, to recover
possession of certain land which the criminal court had award-
ed to defendant, the zillah judge declined to go into the question
of right raised, because the plaint did not specifically require
the order of the criminal court to be cancelled.
Held that the claim for possession brought the merits of the
magistrate's order into issue, and that a prayer in the plaint to
set aside that order was not necessary,
In an Act XIX. of 1841 case, the judge summarily ousted
third parties, alleged purchasers from the deceased (a widow.)
Held that he could not do so, and case remanded for inquiry
into the bona fide character or otherwise of the transfer, and
for the judge to pass orders accordingly.
Appeal heard with reference to precedent cited,
Plaintiff's case nonsuited, as he had not brought all the proper
parties before the court.
Held that a magistrate has no authority, under Act XXI. of 1841,
to interfere with a private path, the Act relating only to public
thoroughfares; and that he may, with those who carry out his
orders, be held personally liable for damages done to any pro-
perty by such interference,
Held, that the sale of a shikmee talook, made under the powers
given to collectors by Section XVI. Regulation III. of 1794,
in accordance with Act I. of 1845, is, under the particular words
of that law, which are to the effect that the property, whether
real or personal, shall be sold "under the rules by which the
lands of proprietors are directed to be disposed of for the dis-
charge of arrears of revenue," a legal and valid sale,
See Appeals, Special, No. 22.
Auction Sale, Nos. 2, 3, 6.
1. In a case in which the disputed land had been recorded in the
survey record about four years before the possessory claim was
decided by the revenue authorities, it was held, in reversal
of the order of the zillah judge, that the limitation of three
years fixed by Act XIII. of 1848, for the institution of a civil
suit, should be calculated from date of the final award,
2. The land referred to in a suit, having been in successive years
under settlement by the collector, held that the collector's last
order gives the date from which limitation under Act XIII. of
1848 should be reckoned,
3. In reckoning the period of three years prescribed by Act
XIII. of 1848, for contesting revenue awards, the calculation
should run from the day following the date of the award, ex-
cluding the day of the date of the award,
4. Held in two cases, that, looking to the date of the orders
of the revenue authorities to reverse both the suits brought,
and to the repeated decisions of the Court, which have ruled
that a party is not entitled to any deduction for the period
during which a suit eventually nonsuited was pending in court,
plaintiff is out of court under the stringent terms of Act XIII.
of 1848. The special appeals decreed, with costs,
5. Where there is no judicial award at the time of settlement,
the provisions of Act XIII. of 1848 do not apply.
The decision of the lower courts, as to the preferential claim to
settlement of the plaintiff, considered to be correct, and the
special appeal dismissed,
6. It was urged in special appeal that a plea of limitation under
Act XIII. of 1848, urged in the lower court, had not been con-
sidered by the judge. Held that the mere substitution of the
name of one person in lieu of another in the measurement
papers, was not a judicial award, as contemplated by the above
Act. Appeal dismissed,
7. The award of a superintendent of survey was of the 23rd
September 1852. A regular suit to set it aside was brought on
the 14th August 1856, i. e. after the three years allowed by Act
XIII. of 1848. It was however pleaded that one of the special
respondents had in 1850 sued for many villages, in one of which
was included the land in dispute in the survey case; and that,
as that suit was decided in the respondents' favour on 21st
March 1853, but nonsuited by the Sudder Dewanny Adawlut
on the 31st March 1856, the interval from 24th September 1852
to 31st March 1856 should be deducted. The Court observed
that plaintiff was able at once to have sued to reverse the sur-
vey award, and ought to have done so but did not; further,
that execution of the special respondents' decree was not taken
out till 13th September 1854.
Held that the superintendent's award was a new cause of action,
irrespective of the suit of the special respondents, and therefore
special appellant was not entitled to any deduction on account
of the pendency of that suit,
8. Case remanded for decision on its merits, as it was held by
this Court that the provisions of Act XIII. of 1848 were not
applicable, no judicial award having been passed, regarding the
property in dispute, by the revenue authorities at the time of
settlement,
9. An award was passed by the revenue authorities in favor of
A against B and C. B sued to reverse the award within three
years, and obtained a decree. When B had got possession, and
after the lapse of 12 years from the award of the revenue
authorities, C sued B for hia share of the estate. Held that,
both under the ordinary and special law of limitation, the appel-
lant was out of court, for he was equally bound with B to sue
for the reversal of the award of the revenue authorities within
the period prescribed by Act XIII. of 1848, and, having failed
to do so, he could not be allowed to take the benefit of B's
diligence and, after the lapse of 12 years from the date of his
being declared by the revenue authorities to be out of posses-
sion, sue B for a share of the estate,
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10. The ground of special appeal raised is that the suit of plain-
tiff is barred under the provisions of Act XIII. of 1848: but in
the zillah courts, special appellants relied on the general law
of limitation only; and the special law now for the first time
urged cannot be entertained,
11. Where the orders of the revenue authorities, which plaintiff
sues to set aside, were not awards between the parties; held
that the plea of special limitation under Act XIII. of 1848 is
untenable,
Act XV. of 1853 refers only to appeals in the Sudder Court,
See Appeals, Nos. 8, 18, 21.
» Resumption, No. 2.
1. Case remanded. Parties who fail to give evidence under Act
XIX. of 1853, can yet appeal,
2. Order of remand on application for special appeal, as the
principal sudder ameen had decreed ex parte against petitioner
under Section XXIV. Act XIX. of 1853, without deciding
whether personal service of notice to attend as a witness had
been made upon him or not, and without investigation of the
merits of the case on the record,
3. Before imposing the penalties of Section XXIV. Act XIX of
1853, personal service of the summons must have been effected,
4. The penalties prescribed by Section XXIV. Act XIX. of
1853, are equally applicable to parties required to give evidence
under Section XXXV. as to parties summoned under Section
V. and other Sections of that Act,
5. The record showed that the principal sudder ameen had sum-
moned the witnesses, and they had refused to attend; not that
the principal sudder ameen had refused to summon them. The
record also showed that the judge had not dispensed with their
attendance. Held that in such a case there was no legal error
as regards the construction by the judge of Act XIX. of 1853,
and no ground for interference with the judge's decision. The
Court observed that, if the plaintiffs had desired the attendance
of the witnesses referred to, they might have moved the lower
court under Section XXX. of the Act,
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