Page

557

...

RETURN, CONTRADICTION OF

See HABEAS CORPUS.

OF PLAINT

See STAMPS.

REVENUE, BOARD OF

-

See PARTITION.

App. 15

...

COURT, CONVICTION BY MAGISTRATE FOR
PRACTISING AS MOOKTAR IN, WITHOUT CERTI-
FICATE...

See ACT XX or 1865, s. 34.

...

...

135

App.

89

JURISDICTION OF-Benami Lease-Land-
lord and Tenant-Act X of 1859.] A. brought a suit in the Col-
lector's Court against B., C., D., and E., for arrears of rent in respect
of land demised under a potta to F. He joined G. and H. as defend-
ants. According to the terms of the potta, they were sureties for
F. It was admitted that F.'s name was used benami in the potta,
and that he took no interest. A. sued B., C., D., and E., as the
parties interested and in possession. C. objected that a new settle-
ment had been made, and a new potta granted; that he held a
moiety only of the lands, and was not liable for more; and that D.
was his ryot, and ought not, therefore, to have been made a defend-
ant. D. and E. contended that they were liable in respect of the
lot comprised under the potts, and had already paid rent for it to
A. under a decree, but objected that they ought to have been sued
separately from B., and C. B. did not appear. The lower Court
held that C. had failed to make out his case, and that D. and E. were
liable in this suit, and passed a decree, ordering them to pay the
amount admitted by them to be due from them; and the other
defendants to pay the remainder of the claim. C. appealed. On the
appeal, PEACOCK, C. J. (MITTER, J., contra), held, that the plaintiff's
suit must be dismissed, the lease being to F., and not to the defend-
ants; that the Court below had founded its decision on matters
extraneous to the lease, which it had no jurisdiction to enquire
into. C. appealed under section 15 of the Letters Patent.

Held, by KEMP and JACKSON, JJ., that the Collector had full juris-
diction to entertain the suit, which was properly brought against
those who were in the actual possession of the land, and that these
persons were really the tenants; that the form of the decree passed
by the Collector was correct, the plaintiff having consented to the
decree being given in that form; that the sureties had really made
themselves responsible for those who were really interested under
the lease, and not for F.

Held by NORMAN, J. (dissenting), that the terms of the lease
under which F. was alone interested could not be contradicted by
oral evidence; that F. alone was bound to the lessor under the lease;
that the defendants could not be sued as tenants, unless, subse-
quent to the potta and kabuliat, something had occurred creating
the relation of landlord and tenant between them and the lessor;
that no such relation or any contract creating such relation between
the parties could be implied from the circumstances of the case,
and the suit should be dismissed. The Revenue Court had, there-
fore, no jurisdiction. But whether in the Revenue or Civil Court,
D. and E. could not be sued jointly with B. and C., nor could G.
and H.

BEPINBEHARI CHOWDHRY V. RAMCHANDRA ROY

SALE, PURCHASER AT
See ACT I OF 1845, s. 21.

...

...

234

RIGHT TO BE HEARD IN APPEAL. See Co-RESPONDENT'S
RIGHT TO BE HEARD IN APPEAL.

OF PRESCRIPTION. See PRESCRIPTION.

WAY-Easement-Limitation-Act XIV of 1859.] A

right of way over the land of another must be kept up by constant
After a discontinuance of such use for a period of six years,

use.

no suit can be brought to re-establish it.

HARIDAS NANDI v. JADUNATH DUTT

Questions of Fact.]

MAHOMED ALI v. JUGAL RAM CHUNDER

App. 37

521

RIGHTS OF HOLDER OF FRACTIONAL SHARE, PUR-
CHASER OF

...

See ACT VIII OF 1865 (B. C.), s. 16.

PROPRIETORS TO ACCRETION

See DILUVIATION OF LAND.

Bills of Exchange, Presumption of Payment
of-Production of, by Acceptor-Account Sales-Evidence-
Limitation-Acknowledgment-Act XIV of 1859, s. 4.] The
plaintiffs in London and the defendant in Calcutta had dealings,
which consisted in the defendant shipping jute cuttings and rejec-
tions to the plaintiffs in certain quantities and within certain limits
as to price, the defendant drawing bills on the plaintiffs in respect
of such goods, which the plaintiffs accepted. The plaintiffs alleged
that there was an agreement between them and the defendant, that
in case of shipments in excess of the limits given by the plaintiffs,
they should at their option receive the goods on their own account,
or treat them as consignments on account of the defendant, but the
defendant denied there was any such arrangement. The defendant
made several shipments in excess of the plaintiffs' limits, and the
plaintiffs treated them as consignments on the defendant's account,
selling them on defendant's account and forwarding him account
sales, and drawing bills on the defendant for any balance due to
them in the transactions, which bills the defendant refused to pay.
The plaintiffs forwarded accounts current to the defendant, in
which appeared an item of £188-5-6 as the balance of account cur-
rent down to December 1866. It appeared to have been due,
however, in respect of an account for 1863. The defendant sent a
letter, dated 22nd December 1865, to the plaintiffs, which con-
tained the following postscript:-"P. S.-Enclosed a remittance
of £40 to old account." In an action brought by the plaintiffs for
the balance due to them from the defendant in respect of the ship-
ments which had been treated by the plaintiffs as consignments on
the defendant's account, the plaintiffs included the sum of £188-5-6.
The suit was brought in November 1868. The defendant admitted
he had sold the bills and received the money for them; they were
produced by the plaintiffs, the acceptors.

Held, that the bills being produced by the acceptors after due
date, and the defendant having received no notice of dishonor, and
no demand for payment of the bills, the presumption was that they
had been paid by the plaintiffs.

In exercising their option of treating shipments in excess of their
limits as on their own account, or as consignments on account of
the defendant, the plaintiffs were entitled to treat each shipment
separately, and were not compelled to decide on an average of the
shipments taken all together.

The account sales furnished by the plaintiffs to the defendant
were primâ facie evidence of the amount realized by the sale of
the goods.

Held also (on appeal, reversing the decision of Norman, J.), the
words "remittance of £40 to old account" were ambiguous, and
did not necessarily import that a further sum was due, so as to con-
stitute an acknowledgment of a debt, which would give a new
period of limitation.

SALE OF TENURE FOR ARREARS

See ACT VIII or 1865 (B. C.), s. 16.

App.

SANAD, RENT-FREE-Jaghir and Service Tenures-Resumption—
Power of Zemindar to resume-Government Sale, Effect of, on
Jaghirs-Admission in other Suit when Evidence.] In 1775 a rent-
free sanad was granted to M. for having put down wild elephants,
the consideration in future being to cultivate and keep up a body
of men, and take care of the ryots. M. died, and a fresh sanad
was in 1786 granted to K. and R., they being thought to be his
heirs; but in 1807, M.'s true heirs having established their title,
the Government gave them a fresh sanad in lieu of the one to K.
and R., reciting the circumstances; both these sanads were to cul-
tivate, keep up a body of men, keep off elephants, and attend to
the safety of the ryots. Held that this was not a service tenure
that could be resumed, and the subject of service tenures was ex-
plained.

The zemindari in which these lands were situated was settled in
1802, and was in 1850 sold for arrears of Government revenue;
the appellant claimed to set aside the sanad of 1807, on the ground
that Government had no right to give such a sanad, but he con-
tended that, if it had, it could be set aside by a purchaser at a
Government sale. Held, that the sanad was not a new grant, but a
confirmation of the one made before the decennial settlement, and
that Government was competent to give such confirmation.

An admission by a jaghirdar in a suit brought by Government to
assess the lands that the lands were comprised in a zemindari, is
evidence of that fact in a suit by the zemindar to resume those
lands.

ALEXANDER JOHN FORBES v. MIR MAHOMED TAKI

Page

18

...

529

15, 442

223

195

See AGENT.

...

App. 37

...

See ACT VIII OF 1865 (B. C.), s. 16.

SHEBAIT OF HINDU IDOL-Right of a Shebait not Transferable.]
The right of a shebait of a Hindu idol to perform the services
and receive the customary remuneration is not transferable, and
cannot be sold in satisfaction of a decree against the shebait.
DUBO MISSER v. SRINIBAS Misser

App. 44, 91

See ACT X OF 1859, s. 13. See JURISDICTION.

-Objection not taken in the Courts below.] The

High Court allowed objections to be taken by a defendant which
had not been taken in either of the lower Courts.
BHUBAN CHNDRA SHOME v. RAMDYAL SHAMANTA

...

App.

62

167

SPECIALLY REGISTERED BOND, POWER OF COURT TO
ALTER TERMS OF

...

...

See Act XVI or 1864, s. 51.
STAMP—Promissory Note.] A. B., by an instrument in writing,
dated 6th August, promised to pay C. D., "on demand," rupees
4,310-13-3. In the margin of the instrument was written "due
30th August," and annexed to A. B.'s signature, was the following
memo. :-"The sum of rupees 4,310-12-6 only; forty-five days from
the 5th of August." Held, that the instrument was properly stamped
as a promissory note payable on demand, and ought to have been
admitted in evidence.

Per PEACOCK, C. J.-A promissory note payable on demand
ought to be stamped as such, notwithstanding there may be a col-
lateral agreement between the parties that the holder will not pre-
sent it for a given time, or if paid on demand that the (maker) shall
be entitled to discount.

CHANDRAKANT MOOKERJEE v. KARTICKCHARAN CHAILE

...

103

INSUFFICIENT-Plaint, Return of Act VIII of 1859,
8. 30-Jurisdiction.] Held in special appeal that the lower Appellate
Court was right in setting aside the proceedings of the Moonsiff,
on the ground that the property in suit was valued at an amount
beyond his jurisdiction; but the plaintiff was entitled to have the
plaint returned to him that he might present it with the proper
additional stamp before the proper Court.

MUSSAMAT IADU v. SHEIKH HIFAZAT HOSSEIN

App. 15

WANT OF-Act X of 1862, s. 14-Act VIII of 1859, s. 350
-Appeal.] An Appellate Court has no power to reverse the judg-
ment of a Court of first instance merely on the ground that the
document on which the suit was based did not bear a stamp at all.
SRINATH SABA v. SARODA GOBINDO CHOWDHRY

STATUTE 29 CAR. II, c. 3, s. 4

See GUARANTEE.

...

App.

10

639