Mr. R. Watson v. Joykishen Mookerjea and another.

Joykishen sued for costs of repairing an embankment which the defendant, Watson, had caused the magistrate to destroy as injurious to his lands. Held that, as the embankment was proved by Joykishen to be on his own property, and Watson had failed to prove the injury to his lands therefrom in the particular mode pleaded, Joykishen need not prove his right to maintain the embankment as one of long standing. Lower court's decision in favour of Joykishen confirmed by a majority of the Court,

Annan Santra alias Obhiechurn Santra v. Dasruttee Opadhia.
Dasruttee Opadhia v. Annan Santra alias Obhiechurn Santra.

Order of the lower court upheld, which decreed, according to the established family custom, the ancestral entailed property to the defendant, as eldest son of the elder branch; and the property acquired by the father, part to plaintiff, part to defendant, according to the rules of Hindoo succession; the acquisitions not being by means of the joint funds of an undivided family,

...

Sooroddhunnee Debea Chowdree v. Doorgapersaud Roy Chowdree and another,

...

Order of lower court upheld, treating the hibbanama filed by defendant as a forgery, and setting aside an adoption made by her under it. But no authority to the claimants to the property in defendant's possession to assume possession could thence be presumed, Mudhoosoodun Pal Chowdree v. Sumbhoochunder Singh and others. Two pleas taken by special respondent disallowed, and case remanded. The first plea was that transfer of the property in suit to plaintiff was nominal and in fraud of creditors. Held that this plea could not affect plaintiff, who came into court on no such statement of facts.

The second plea, that plaintiff was bound to prove payment of consi-
deration money, over-ruled, as the nature of the defence did not require
plaintiff to prove that fact,

Joykishen Mookerjea v. Sheikh Cazee Golam Sufder and others.

This suit was instituted to reassess defendants' land at an enhanced rate,
and to recover arrears due at that rate, under notice served in con-
formity with Regulation V. of 1812.

The service of notice was held not to be proved; but the first court
assessed the rent which the defendant should be liable to pay. And, on
appeal, the principal sudder ameen having held that the moonsiff should
have tried only the general right of plaintiff to enhance, irrespective
of the amount which, if that right existed, the tenant should pay, the
suit was referred in special appeal to the Court at large, to try: first,
whether the principal sudder ameen should not have pronounced an
opinion upon the suitableness of the assessment imposed by the
moonsiff; and secondly, whether, the assessment being imposed, the
decree of the principal sudder ameen should not declare the tenants
liable to pay that rent, from the date of this action, or from the
commencement of the year following the decision.

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989

995

999

Held by a majority of the Court that, even after the passing of a decree for enhanced rent, notice of the decree-holder's intention to levy the enhanced rent, should by law be served upon the tenant, under the provisions of Regulation V. of 1812; and that it was unnecessary to remund the present suit to the principal sudder ameen, for the purpose of determining the rate at which enhancement should be allowed,

...

Khajah Mahomed Gohur Alee Khan v. Khajah Burkutoollah Khan and others.

1001

Khajah Mahomed Gohur Alee Khan v. Khajah Ahmed Khan and others. The argument used for review of judgment that, when this Court considered, in dissent from the court below, that (plaintiff) appellant had not failed to establish his claim, the case should have been remanded to enable defendants to put in more proof, rejected; as both parties had had the opportunity of putting on the record all the evidence they wished. Seeing no reason to form a different opinion of that evidence, application for review disallowed, 1008-1011

Musst. Kripamoye Debea v. Ramanath Chowdree and others.

Application for review of judgment rejected: first, because petitioner shewed no cause for his failure to submit at the trial new evidence which he desires to submit now; and secondly, because the Court adheres to the view which it before took of the evidence on the record,1012 Mookdun Beebee.

The decision of the judge, that only auction-purchasers can apply Regulation V. of 1812 to claims for enhancement of rent, over-ruled, and case remanded in consequence,

1013

Beebee Catherine Arrathoon v. Musst. Shamasoondree and others. Brijkishore Sein Baboo v. Beebee Catherine Arrathoon and others. Defendant, after admission of application for review of judgment by plaintiff, was ordered to pay the amount of arrears of rent in balance, payment of which as alleged by him he had failed to prove, 1014-1016

Joychunder Mookerjea v. Boodhee Shah.

Held that, when the owner of a house had let it at a fixed rent to the defendants, the purchaser of the house from the lessor was not competent to interfere with the terms of the lease; and that the opinion of the principal sudder ameen, that the purchaser was at liberty either to respect the lease or to set it aside, was erroneous, 1017 Azezunissa Beebee and others v. Rampersaud Surma Chuckerbuttee and others.

Held that, as these suits were instituted essentially for a declaration of plaintiffs' right to settlement with possession and mesne profits, and as plaintiffs nowhere ask the court to give them possession as under-tenants, if it is unable to uphold their claim to settlement, the decision of the principal sudder ameen, giving to plaintiff's that for which they did not sue, is erroneous. So much therefore of that decision as declares plaintiffs entitled to possession as under-tenants and liable to pay the pergunnah rates, was reversed and the special appeal was decreed, with costs,

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1018

Maharaja Mahtabchunder Bahadoor v. Sreemuttee Dassee.

On respondent's suit, abatement of jumma, with refund of excess collections for past years with interest at 12 per cent., was decreed in his favour.

The objections in appeal, which were against the award of interest only, were disallowed: for it was held that interest at 12 per cent. was properly payable, as appellant was seen to have made excess collections, and it was, besides being the legal rate, that which is chargeable upon arrears,

Ameer Khan and others v. Gourchunder Biswas and others.

...

Plaintiff sued defendants summarily and obtained a decree.
ants' bringing a suit in a civil court for the reversal of the same,
On defend-
the moonsiff modified the decision of the revenue authorities, reduc-
ing the sum due to rupees 21, and also cancelled the sale. Against
this decision plaintiff did not appeal. The sale purchaser, who had been
made a defendant, did appeal from that portion of the order reversing
the sale; and the principal sudder ameen found that the sale was made
in legal form, and, as there was a balance due by the petitioner, against
which finding he had not appealed, the sale must stand good: he con-
sequently reversed the order of the lower court.

Held, on special appeal by the plaintiff below, that, as he had acquiesced
in the decision of the moonsiff, declaring rupees 21 to be due, and as
the sale was made in due legal form, no ground exists for interfering
with the decree of the principal sudder ameen.
The special appeal dismissed, with costs,

Bhowanychurn Dass and another v. Gungapersaud Dass.

...

Objections, in bar of hearing a suit, not pleaded in the lower court, not
allowed to be brought forward in special appeal,

Rameshur Sein Moonshee v. Prennath Chowdree and others.

...

Special appeal dismissed; the first two points, as on the record, being
matters respecting the weight to be attached to specific evidence, and
the special appellants not having shewn that Section XXVI. Act
I. of 1845 protected his tenure,

Purankoomar Brahumnee v. Huromohun Chowdree and others.

A plea of undervaluation, dismissed by the lower court, is no ground of appeal under the provisions of Act IX. of 1854, as it is not productive of injury to either party, when it does not affect the jurisdiction, Khaja Surwar Hossein and others v. Khaja Syed Hossein Khan and others. A special appeal was admitted to try whether, in a case of an endowment. where the proceeds are appropriated to the discharge of a religious trust, the ordinary principle of the law of limitation is applicable. Held that in this case the property was not wukf, that is, property devoted to the deity on relinquishment of proprietary right, but that it was property claimed by inheritance and subject to certain trusts, and thus, in regard to the parties interested in the inheritance, the ordinary law of limitation would apply.

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1024

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1027

Case however remanded for trial of an issue, raised by the pleadings, not udjudicated; viz. up to what date plaintiff received an allowance, which would affect the date of the cause of action, and thus the application of the law of limitation,

Maharajah Mahtabchunder Bahadoor v. Bishumbhur Singh.

Suit for arrears against a party alleged to have been the real purchaser of a putnee, as distinguished from the nominal purchaser, dismissed in appeal, in affirmation of the judgment below,

Nurnath Surma v. Musst. Kumulessuree Debea and others.

The question of legal title, as well as possession, to the property being raised in issue in the lower courts, it should have been decided. Case remanded,

Kollybur Dutt and others v. Modhoosoodun Pattuck and others.

...

Order of remand on application of special appeal, that the judge, who had dismissed the appeal on failure to put in certain proof, might dispose of the case on the evidence on the record,

Ramchunder Potedar v. Omeshchunder Roy.

Application for review of judgment rejected, being based upon what should have been submitted for decision at the first hearing,

Roy Jesmunt Lal v. Musst. Radha Koowur.

1028

1030

1032

1033

1034

A plea not urged at the first hearing regarded as abandoned, and inadmissible as ground of review,

Shibkaminee Dassee v. Juggurnathpersaud Mullick and others.

The Court declares that its order in the appeal case before it, only affected the interest of appellant before it, and left the decision of the lower court, as to all other parties, untouched, Shamachurn Chuckerbuttee v. Ramnarain Chuckerbuttee and others. Held that as the plaint alluded to two roads, for the closing of one of which plaintiffs sue, and for the closing of the other of which they state that they would suc in a separate suit, the decision of the lower court, awarding to plaintiffs the right to close one road, is quite correct and in accordance with the prayer of the plaint, and no ground for special appeal on this head exists. Special appeal dismissed, with costs,

Budree Singh v. Maharaj Singh and others.

Plea advanced in support of application for review of judgment rejected, because it had not been put in issue below or urged at the first hearing,

Surbeshur Dass v. Bhubany Soondree Dassee.

The plea, that when this Court felt disposed to take a different view of the claim from the lower court, an order of remand should have been passed, rejected, as contrary to practice and to Section XVI. Regulation VI. of 1793.

b

1035

ib.

1036

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1038

Syed Abdool Hossein ". Baboo Modenarain Singh.

Plaintiff sued defendant on certain receipts for money paid to him, and for certain sums which he had paid to him in liquidation of a debt due, under an instalment bond, but which in an action brought by the defendant under the instalment bond, the Court refused to look at in consequence of the receipts not being then stamped.

Defendant pleaded that the suit could not be barred and that the matter was a res adjudicata.

Held by the Court that, as the Court in the previous case refused to look at the receipts filed by plaintiff in this case, but gave defendant a decree in full, the amounts, paid and covered by these receipts, if genuine, have been paid without any consideration, and consequently that an action for money paid and received would lie, and the present matter is not a res adjudicata.

Case remanded for investigation on the merits,

Kaleekant Chatterjea v. C. S. Hogg.

Held, that a receiver appointed by an order of the Supreme Court,
as its recognised officer can sue for rents of property in his charge
without an express order of the Supreme Court in each case.
Held, also, that where the receiver acts for the party really the lessor,
the consent of a benamee lessor is not necessary to enable_the
receiver to sue, especially where due deligence is shown to have been
executed in order to make such benamee lessor or his heirs parties
to the suit.

Held, also, that Section VI. Regulation VIII. of 1831 does not bar
a suit where the order of the revenue authorities is only to strike a
case off the file, such order not being a judicial award.

Held further, that the receiver was entitled to sue and to obtain rents
for 1257 and 1259 for which no "judgment" or
made, and for the interest, as it was conditioned in the kubooleut,
'award" had been
and as defendant had vexatiously and improperly withheld the rents
due by him,

Bhogheeruthee Debea Chowdrain and others v. Shamakant Lahoory.
Remand on application for special appeal, as the lawer appellate court
had improperly dismissed petitioners' suit for want of correspondence
between the boundaries in the plaint and certain maps, without show-
ing how he could not in consequence adjudicate upon the plaint,

Nubodeepchunder Roy v. Mrs. Bonnevie.

Plaintiff, respondent, being debarred by Section XXI. Act I. of 1845 from suing for possession of moiety of an estate alleged to have been purchased by defendant's father and her husband jointly, but in the name of the former, brought on the plea of subsequent dispossession this suit for recovery of the share of the purchase money advanced by her husband.

Held that the suit would not lie, as one for money paid and received, for it was admitted that the money had been applied to plaintiff's husband's use and a suitable return in the shape of rents had been received by him,

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1046