Reported in : AIR1929All334; 117Ind.Cas.111
.....pointed out that mt. tamizan received no profits and, that her explanation that she held sir land was not true. there is thus a definite finding of fact that in 1912 the record was correctly prepared and by some arrangement by which mt. tamizan was bound she was recorded as cosharer of one siham only. the learned judge of this court has added another reason that if farid khan was cheating his sister tamizan out of seven sihams of her eight sihams, there is no explanation why he should have been cheating her when he did not cheat her sister, rahiman bibi who was recorded for her full eight sihams. it is obvious to me that mt. tamizan has taken steps against strangers when the property passed out of the family. a portion of the share in possession of the family had also to be included in the suit not to expose her real desire of depriving strangers of family property which they had rightly acquired. i hold that since 1319 fasli, that is, 1912, mt. tamizan has been entitled to only one siham property of her father, and not seven sihams. on this finding her entire suit was to be dismissed.2. it was argued that the lower appellate court was not entitled to give relief to the.....
Tag this Judgment! Ask ChatGPTReported in : AIR1929All379
.....right. thus there is no record of rights in respect of the area covered by this mahal which contains any such declaration. in our opinion the mere fact that there are wajib-ul-arzes for other mahals would not be sufficient to allow of a right of pre-emption in this mahal.3. no earlier wajib-ul-arz of the village before there was a partition has been produced in this case. the lower appellate court thought that because the wajib-ul-arzes of the other two mahals recorded similar customs, the wajib-ul-arz of the parent mahal or village must also have recorded a similar right. in our opinion such a presumption is by no means justified inasmuch as it is quite possible that the entry of such a right was made for the first time at the time of the partition when the three mahals were formed. in any case it was incumbent on the plaintiff to show that there was a wajib-ul-arz prepared prior to the commencement of this act in respect of this particular mahal or village out of which it was formed which recorded such a custom or right. as the plaintiff failed to show that, the suit ought to have been dismissed.4. we accordingly allow the appeal and setting aside the decree of the court.....
Tag this Judgment! Ask ChatGPTReported in : 116Ind.Cas.852
.....to prove his innocence, the only way he can prove want of reasonable and probable cause would be by pointing out that the defendant alleged that he actually saw the plaintiff committing the offence and yet this was not believed by the criminal court. it is true that the defendant may be able to prove miscarriage of justice by the criminal court and produce evidence so strong as to make it certain that the plaintiff was really guilty. in the present case no such evidence exists on behalf of the defendant. the witnesses are not of such a nature that they should be believed when they were not believed* by the criminal court. malice must have existed when mangat ram falsely implicated the plaintiff, mohammad daud khan, along with others who had cut the crops, it maybe repeated that mangat ram did not merely allege that mohammad daud khan must have instigated the tenants to cut the crops but he actually deposed that mohammad daud khan was present at the spot. under the circumstances i am of opinion that the plaintiff is entitled to recover damages from mangat ram. as against jia lal, there is no evidence that he instigated mangat ram to prosecute the plaintiff falsely.2. in the.....
Tag this Judgment! Ask ChatGPTReported in : AIR1929Cal319,121Ind.Cas.678
.....they might be called as witnesses for the prosecution. in queen v. payne [1872] 1 cr. c.r. 349 cock-burn, c.j., stated that this was a convenient rule and practice: see 354-55. in phipson on evidence the learned author states that to render co-defendant competent to be called by the prosecution, each co-defendants must have been acquitted, or have obtained a nolle prosequi or have pleaded guilty: see p. 453, 5th edition. it is the right of the crown at any stage of a trial but before judgment is pronounced, to enter a nolle prosequi. section 333 gives the power to the advocate general in cases tried before the high court. in other cases the public prosecutor performs a similar function (s.494.)10. in the case of withdrawal by the public prosecutor the consent of the court is necessary under the criminal procedure code. the result of the authorities is that where the court is considering whether the chief presidency magistrate has rightly made the order of discharge under section 494 or not, one test and a very important test is whether in coming to a decision it has taken into consideration extraneous circumstances which ought not properly to have been taken into account. the.....
Tag this Judgment! Ask ChatGPTReported in : (1929)31BOMLR728
.....evidence, both documentary and oral, was produced from both sides.4. the collector, in his reply to the appellant's written statement, referred to a fact, since more definitely ascertained, that the owners of the 258 acres, other than the appellant, had accepted the collector's award so far as they individually were concerned. it does not, however, appear that before the learned district judge there was attached to this circumstance, by either side, the decisive significance which by the court of the judicial commissioner was ultimately attributed to it. before the learned district judge the evidence was directed rather to the question whether the appellant's land, although hitherto used only for agricultural purposes, was or was not adapted for building. the value of building land in its neighbourhood, and the probable direction of the prospective development of nagpur, with the remoteness or otherwise of that event were canvassed, with much elaboration, by witnesses on each side. in the result, the learned district judge, greatly impressed by one of the appellant's witnesses, mr. kashinatb bhide, a municipal engineer, came to the conclusion that the appellant's lands should be.....
Tag this Judgment! Ask ChatGPTReported in : (1929)31BOMLR721
.....he was so dispossessed, many issues were raised by the defendant. some of these must be referred to, not because they remain active, but because the fact that the defendant raised them and failed, may have a bearing on the question which still remains for decision. that is the single question whether the forty-four bighas claimed by the plaintiff or any of them form part of his three jotes. it is a mere question of identity of parcels. the doubt upon it-one raised by the defendant very late in the days occasioned by some kind of change which thirty or more years ago took place in the course of the river kosi, flowing through or near the village, what then actually happened has been differently described by the defendant at different stages of the dispute, and to this specific matter their lordships must for a special reason return later. it suffices to say now that for a period of twelve or more years, between 1895 and 1907 and as a result of the visitation, whatever was its nature, much of the land of the village fell out of cultivation, and, when ultimately deliverance came and the lands were in process of restoration to husbandry, it was found that the plaintiff on the one.....
Tag this Judgment! Ask ChatGPTReported in : (1929)31BOMLR734
.....not given, falls far short of affirming the existence of a subsisting tenancy.18. the court then recorded its finding on the 'issues regarding the facts affecting the claim,' which were as follows :-whether the disputed land belongs to the plaintiffs in purchased zemindary right as appertaining to taluk no. 85, mahamad jalal, within mouza pafcharkandi, and whether upon proper enquiries the said land was found to appertain to the said taluk, and was thereupon released by government officers in favour of some of the plaintiffs, and whether the rent received from the joledar defendants was paid back to the plaintiffs, and whether the objection made by the defendants that the said lands are illam lands, though they were released by the sadar board on behalf of the government is admissible and whether the plaintiffs are entitled to the mesno profits they have claimed?19. on this issue the court held that it could not go behind the decisions of the revenue authorities that the suit land was not illam land, and that it formed part of estate no. 85. it accordingly proceeded to give the plaintiffs a decree for possession and mesne profits at specified rates.therefore for the above.....
Tag this Judgment! Ask ChatGPTReported in : AIR1929All232
.....court which is binding on this court that fraud was practised on the plaintiff and that the decree for ejectment was obtained through such fraud. such fraud, when proved, vitiates the proceedings in the revenue court. when the revenue court decree became void through fraud, the civil court had jurisdiction to determine the question over again as to whether the plaintiff was an agricultural tenant or a grove-holder, there is a finding of fact that he was a grove-holder. he was, therefore, entitled to the possession granted to him by the lower courts.4. lastly there is the argument that the revenue court held in an application for review of judgment that no fraud had been practised on the plaintiff. the civil court is the proper court to determine the question of fraud and the finding of the revenue court in review proceeding is not binding on the civil court. i dismiss this appeal with costs.
Tag this Judgment! Ask ChatGPTReported in : AIR1929All233
.....who claimed what was, so to say, a day before, the defendant's land, to prove the custom by which he claimed. the learned judge says,one significant fact emerges from this, and that is, that the appellants (defendants) have been unable to give any instance in which a block of land on one side of the stream has been in the possession of the zamindars of the village on the opposite side. had the rule of dhardhura been interpreted in the past as they would now have it, there must have been cases in which recognizable plots of land of greater or less size were cut off by the river and separated from the village to which they had originally belonged and such plots would have continued in the possession of their old owners.10. this, as we have said, is putting the burden of proof, on wrong shoulders. in the earlier judgment of mr. saksena, we find that he was pressed with the argument that the plaintiffs had not proved any instances by which the custom alleged applied to the present case. mr. saksena recognized that there was some force in the argument and thereby recognized the rule of law that the burden of proof lay on the plaintiff. in this, no doubt, he was right.11. with respect.....
Tag this Judgment! Ask ChatGPTReported in : AIR1929All320
.....must weigh with a court, and if there is no danger of the applicant fateh singh absconding if released on bail i think that he should be so released. it was necessary for the sessions judge to consider all these points under section 498, criminal p.c.2. the trying magistrate is directed to release fateh singh on bail if he is satisfied that there is no apprehension of his absconding on proper sureties being ordered and secured. the trying magistrate will please fix a bond and security accordingly if, in his opinion, such a bond and security will be sufficient to prevent fateh singh from absconding.3. a copy of this order shall be sent to the trying magistrate through the district magistrate for necessary orders.
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