the period of the decennial settlement, it will appear from the proceedings of the revenue commissioner cited above, not only that the public assessment was rupees 31,176-7-7-2, but that plaintiff's share of the estate was sold for rupees 23,801-13-0-2, for interest, rupees 2,505, and for mazoolan moshahera, rupees 1,288-14-3, total rupees 27,595-11-13-2. We find therefore that when the estate was put up and sold, a clear and palpable distinction was made between the arrears of assessment due to Government and the arrears of moshahera due to mazoolan or former zemindars. Nor will the sale of estate for the arrears of the moshahera perpetuate a claim on the estate for the future. The circumstances under which the moshahera was imposed will elucidate this. Nor have we far to go for their developement. For the defendants in their answer state that "the zemindaree belonged to Ram Deb, and Debeeram, and Beereeshur; that Beereeshur, having dispossessed his brothers, their heirs sued him, and on the 24th February 1783 or 15th Phalgoon 1186, the Governor General in Council fixed the moshahera in question in lieu of their interest in the zemindaree." This proves beyond the possibility of doubt that the moshahera in question was nothing more than an assignment of the profits to which the dispossessed brothers were entitled from the estate. This is further corroborated by the following extract from the Fifth Report of the committee appointed by parliament, namely, that "from 1135 to 1164, pergunnah Jehangirpore was in the possession of Ram Deb and others; that after his death it was divided almost equally into three portions between his sons, Govindo Deb, Sheebpersaud, and Beereeshur; that in 1173, in prejudice to Govindo Deb and Sheebpersaud, the whole zemindaree was conferred on Beereeshur alone; that in 1176, it was divided into four equal portions among Cossinath, Bishonath, the two sons of Beereeshur, with Jugeeshuree and Lukheemonee, relicts. of Gourikanth and others, remaining offspring of the same family, subject however from the establishment of moshahera to a charge of about rupees 22,000; of which, as if it were to bring to yearly remembrance the injustice of the original act of ejectment, the ousted landholders or their representatives have ever since been in the receipt of a part as their share of subsistence until the more recent discontinuance of the whole allowance." We conclude therefore that as the share purchased by the plaintiff was sold for arrears of Government revenue, and that the actual or vested interests of the proprietors in such portion of the estate have lapsed, the extinction of that portion will necessarily involve a proportionate extinction of the interests of all those who held the estate. It will otherwise follow that the late defaulters, who were in actual possession of the estate, may equally claim with the defendants to be remunerated from the future assets of the estate; thereby absorbing the whole of the profits between them, and leaving nothing but the husk and shell for the auction-purchaser. This would be not only unreasonable but fasten an incubus on the estate which would prove seriously detrimental to the interest of Government. So long therefore as the estate was not sold for the claims of Government, so long had defendants a legal right to the moshahera in dispute. But as soon as the sale for the Government arrears took place, their interests in the estate ceased to exist. The only point that could arise in their behalf would be, whether defendants might have a claim against the late defaulters for any portion of the proceeds of the sale, or for damages for permitting the estate to fall into arrears, but certainly not for any claim to the future profits of the lapsed share of the estate. 'Defendants contend that the sale ishtehar contained a stipulation that the purchaser should pay the mazoolan moshahera. But defendants have not filed a copy of the ishtehar, though the onus probandi on the subject rested on them. They rely on the commissioner's proceedings of the 23rd September 1837, already cited. The commissioner there states that the ishtehar contained that stipulation. The court made several attempts, by addressing the revenue commissioners of Rajshabye and Bhaugulpore, for the ishtehar, but without success. The defendants contend that they cannot offer better evidence than the proceedings filed; and that they are in themselves sufficient evidence of the fact. This may be admitted, but the evidence is nevertheless not conclusive. For the proceedings are written in the vernacular, and not in the hand of the commissioner. Nor can it be denied that proceedings of this kind were always written by the omla; and that, depending on the fidelity of the omla, the European authority seldom, if ever, takes the trouble of examining the document. He was therefore strictly responsible for the order alone which he passed with respect to the case. When therefore a necessity was induced for a particular enquiry on the subject, defendants should have examined the omla who drew up the proceedings. We cannot therefore give implicit credence to the plea that the condition in question was in reality in the ishtehar. 'It is argued that the commissioner has declared that the purchaser of the estate is responsible for the moshahera in dispute, and defendants have filed an extract from the commissioner's letter, dated the 11th April 1837, No. 1581, by the moonsiff, in which it is stated that: "I have only now to express my hope, no really unnecessary delay will be allowed to take place in the collection of the arrears due on states under butwara in your district. Should Jehangirpore be the estate from which the dispossessed Chowdhrees, mentioned 66 n your letter No. 125, dated the 25th ultimo, are to be paid, I hope measures before sale will be taken to inform intending purchasers of the burthen on the property." But this order can scarcely be regarded as conclusive on the subject. The commissioner was not a competent authority to originate any new or extraneous conditions and attach them to a perpetually settled estate, and still less to attach conditions by which the property was likely to be depreciated in value, and which was not for the benefit of Government, but for others. Nor does it appear that the commissioner acted under orders from a higher authority. Such a condition is necessarily void with respect to the future. For the sale of the estate has annulled the right as well of the defaulting proprietors as of the present defendants. There is no possibility of retrieving the rights of either party. 'Defendants contend that the purchasers in their petition, dated 19th November 1837, or 14th Aughun 1244, agreed to pay the moshahera. But the petition is signed by a mookhtear, and it was filed two months after the commissioner had confirmed the sale. With reference to these two facts, I have insuperable donbts as to the validity of the petition. Be this as it may, that which is ab initio void can scarcely be rendered legally recoverable. 'Defendants have filed a letter of the collector of Moorshedabad to the collector of Dinagepore, dated 21st June 1793. The former writes: "I beg leave to send a petition from the mazool zemindars of Jehangirpore, and to inform you that the allowance of rupees 4,000 per annum therein alluded to, was paid from the allowance of the zemindars of Jehangirpore for akrajat amounting to that sum; but at the settlement in 1197, conformably to the 9th article of the General Regulations for the decennial settlement under date 10th February 1790, this allowance of akrajat was deducted from the jumma of Jehangirpore. The allowance ever since of the mazool zemindars has been paid from this treasury by stoppage from the receipt from the zemindar in possession." We gather from this also that the mazoolan moshahera was a separate and distinct item from the sudder jumma, or decennially settled assessment of the estate, and that the moshahera was separately taken from the zemindars. This fact, so far from supporting the defendants' claim, justifies plaintiff's prayer for deliverance from an illegal and unjust demand inconsiderately saddled upon the plaintiff. With reference to the sixth point, as to what rights the defendants in particular have to the moshahera in question, it appears that they base their personal claims to it on the pleas of succession by descent and by gift. But they have offered no conclusive evidence on the point. They refer to the collector's papers, and plead that the collector ascertained their rights, and that they have for a T long time received their moshahera. But the collector's summary inquiries are not sufficient evidence on the subject. Under all these circumstances, we arrive at the conclusion that defendants have no claim on the auction purchaser of the estate for their moshahera. For the estate having been sold for arrears of Government revenue, the entire rights of the former zemindars have been forfeited. 'But as the appellant alone appeals, his appeal is decreed; the moonsiff's decision reversed. Appellant will in future refrain from depositing his share, rupees 265-5-3, of the moshahera in question. Defendants, respondents, will pay the costs of both courts to the appellant.' "Plaintiff was purchaser of an estate for arrears of revenue, which he said was burdened not only with the Government jumma, but with a sum of money payable as moshahera to disseised zemindars. His suit to be relieved from the extra sum was dismissed by the sudder ameen, but decreed by the principal sudder ameen for the reasons assigned in his judgment. "The special pleas are that plaintiff paid the sum in question for 12 years previous to suit, and that the moshahera was made payable previous to and continued at the time of the decennial settlement, and the estate was sold, and bought by plaintiff, liable to the burden which was specially notified. "We admit the special appeals, to try whether, with reference to the above pleas, the judgment of the principal sudder ameen is correct." JUDGMENT. After attentively considering all the arguments advanced by the pleader, we see no grounds for disturbing the decision of the principal sudder ameen on the points recorded in the certificate. The first plea set up is, that plaintiff paid the sum in question for 12 years before suit; but this in itself constitutes no point of appeal, the plaintiff having sued only for a declaration from the court to release himself from the necessity of future payment. The second plea is that the moshahera was made payable previous to and continued at the time of the decennial settlement; but we find that the same parties, members of one family, who originally consented to pay and receive this allowance, were proprietors of the estate at the time thus referred to in the certificate, and it does not follow that their acts were necessarily binding upon one who purchased a defined portion of the estate at public auction, and is no representative of the old proprietor. The third point is, that the estate was sold, and bought by the plaintiff, liable to the burden which was specially notified. This refers only to a proceeding of the commissioner of revenne, in which mention is made that the allowance had been an incumbrance on the property, and that that circumstance had been notified to the purchaser. This, however, could not in itself create any liability, nor can it affect the question which the lower court had to try, viz. whether plaintiff was bound to pay this amount as part of the jumma originally assessed on the property; and as we have not been shown any engagement which could be legally enforced against the plaintiff, or render liable the property purchased by him, we see no ground for interfering with the principal sudder ameen's finding on this point. We reject the appeals, with costs Special Appeal from the decision of Mr. G. Loch, Judge of Pur- SHEIKH IZZUTOOLLAH AND OTHERS, (PLAINTIFFS,) versus SHEIKH KUREEMBUKSH AND OTHERS, (DEFENDANTS,) Vakeel of Appellants-Moulvee Murhamut Hossein. Vakeel of Respondents-Moulvee Lootfoor Ruhman. This case was admitted to special appeal on the 23rd July 1857, under the following certificate recorded by Messrs. J. H. Patton and J. S. Torrens. Suit being laid on a title created by an ikrarnama, to recover' pos session of certain land minal court had awarded to defendant, the zillah which the cri "This suit was instituted for recovery of possession, with wasilat, of certain lands, of which plaintiffs alleged they had been dispossessed by the defendants. One-third of the land plaintiffs alleged they had become possessed of on an ikrarnama, taken from the defendant Gyasoodeen, whom they had deputed to make a purchase of it for them, but who, purchasing it in his own name, had afterwards relinquished, under the ikrarnama. After acquiring possession, defend- to go into the ants, it is stated, had dispossessed plaintiffs, denying the ikrarnama right raised, from Gyasoodeen, and où plea of having received in farm from him. because the judge declined question of plaint did not |