and four sons; of these, three died without issue, leaving her their heir, and that subsequently her fourth son, Juggutchunder, died, and she succeeded to his share of the property. The defendants plead that the land in dispute comprises 2 beegas 2 cottas, of which 10 cottas belong to their own estate, 18 cottas to the estate of Anundomohun and Muddunmohun from whom they have received a mookururee potta at a jumma of 14 as., and 14 cottas belong to Juggurnath, son of plaintiff, who gave them a mookururee potta at a jumma of 12 as. The moonsiff gave a decree for possession of the whole area claimed. The principal sudder ameen on appeal, dismissed the suit. On special appeal, this Court, on 31st March 1857, page 516, remanded the case for re-trial on fresh issues indicated in that decision. The principal sudder ameen has now given a decree for the whole of the land claimed and confirmed the decision of the lower court. It is urged in special appeal that the principal sudder ameen has not tried all the issues that arise in the case, but that, looking only to the documents which relates to the 14 cottas alleged to belong to Juggurnath, he has decreed the whole claim without entering into the adverse claims advanced by the defendants, special appellants, on their own account and as lessees from Anundomohun and Muddunmohun. The proper issues to be tried are: first, whether the 10 cottas claimed by the defendants as part of their own talook, belong to them or to the plaintiff; secondly, whether the 18 cottas, alleged to belong to Anundmohun and Muddunmohun, who have been made defendants in the suit, and claimed by the special appellant to be held by him under a mookururee potta, belong to them or to the plaintiff's estate; thirdly, whether the three sons of Gooroodass Roy, whose heir plaintiff claims to be, died before or after their father, for in the former case, plaintiff's grounds of objection to the potta given by Juggurnath, viz. that he had no authority to grant it, would be invalid, while, in the latter case, he could not legally grant it without her consent. The principal_sudder ameen has only tried the point whether the potta given by Juggurnath for 14 cottas is valid or not, and, having found it to be invalid, he has dismissed the appeal, and confirmed the order of the moonsiff and given a decree for the whole land in dispute. As the principal sudder ameen has found the potta invalid, it will not be necessary to enquire further into the third issue, but a distinct finding on the first and second issues indicated above must be come to before the plaintiff's right to the land in the possession of the defendants can be passed; and as the principal sudder ameen has omitted to determine these points, his enquiry is defective. We therefore remand the case to him, to be disposed of with reference to these remarks. Held by the Court that the first issue arising out of the pleadings in this case was, whether the plaintiff was CASE No. 39 OF 1858. Special Appeal from the decision of Mr. H. M. Reid, Officiating Judge of East Burdwan, dated 10th July 1857, affirming a decree of Moonshee Koodrutoollah, Moonsiff of Bamunara, dated 7th July 1856. JOYKISHEN MOOKERJEE, (ONE OF THE DEFENDANTS,) APPELLANT, versus CHEENEEBASH MUNDUL, (PLAINTIFF,) And Others, Vakeels of Appellant-Baboos Ramapersad Roy and Vakeels of (Plaintiff) Respondent-Baboos Shumbhoonath Pundit THIS case was admitted to special appeal on the 23rd January 1858, under the following certificate recorded by Messrs A. Sconce and J. S. Torrens. "This was a suit brought by a party under Section XXX. Regulation II. of 1819, to establish his lakhiraj tenure in certain lands in dispossessed by the zemindaree of defendant, special appellant. Special appellant the defendant pleaded that he had frequently called on the plaintiff to produce which he al- his proofs of the land being lakhiraj, and that, on his failing to do so, and as the land was not shown to have been held as lakhiraj of the land leges he has Held also that, irrespective of the validity of his lakhiraj tenure, plaintiff is entitled to be replaced in possession of the property from which he was dispossessed by the defendant, if he can satisfactorily show that his tenure does not fall within the class mentioned in Section X. Regulation XIX. of 1793, viz. that of tenures created since the 1st December 1790, and that it consequently is not one in which the summary powers of dispossession without a suit in court, given by that law, can be exercised by a zemindar. Case remanded for re-investigation with reference to the remarks made by the Court. on a tenure executed before 1790, he had annexed it to the malgoozaree lands of the zemindaree under the powers conferred by Section X. Regulation XIX. of 1793. The moonsiff decreed for plaintiff, having first referred the case to the collector for a report; but the collector having failed to give one on account of the nonattendance, when summoned, of the plaintiff, respondent, the judge has confirmed his decision, holding that it was for the defendant, special appellant, to have shown before the collector that the land was not lakhiraj existing before 1790, and that as it was shown to have been in possession of the plaintiff more than 35 years, defendant could not have interfered with the tenure as he had, or without bringing a suit for resumption. The objections in special appeal refer to the grounds of the decisions of the moonsiff and the judge, contending that the onus of proof was not on the defendant, special appellant, on the point; that the plaintiff having failed to attend before the collector, the consequence was that his claim was unproved, and that defendant had full powers, under the law, to eject the plaintiff on the plea that the land was claimed on a tenure only created or asserted since 1790. We admit the special appeal to try the objection." Additional Note by Mr. A. Sconce. "It appears to me that in this case an additional question, not noticed by the judge, may arise: defendant, petitioner, summarily dispossessed plaintiff, who professes to hold the land as lakhiraj. Now, before going into the validity of plaintiff's grant, a preliminary issue may be to determine whether or no the tenure existed before 1st December 1790. If it did exist before that date, plaintiff might be entitled to be restored; and against any claim of the zemindar to resume, he may be entitled to plead that the claim is barred by the law of limitation." JUDGMENT. On turning to the pleadings in this case we find that plaintiff sues for possession of certain lakhiraj land, alleging that on the 15th Jeyt 1225 B. E., he purchased from Kaffil Shah and others 8-5 of lakhiraj land for the sum of rupees 90-8, and that by virtue of his purchase he held possession receiving and collecting the rents from the tenants; that on the 6th Aughun 1261, the talookdar of the above village, in connivance with his gomashta, trumped up a kubooleut in the name of one Sheikh Kungalee, and misrepresenting the boundaries of the aforesaid 8-5, and also other lands comprised in 20 distinct parcels, aggregating 15-10, and falsely declaring that plaintiff's peerootter land and other rent-free holdings, the properties of other parties, were in the occupancy of the said Kungalee Sheikh at a jumma of rupees 78, brought a collusive suit before the sale commissioner of the chokee, F for the recovery of fictitious arrears of rent said to be due for nine months up to Kartick of 1261 B. S., amounting to rupees 47-8-1, and distrained the crops of plaintiff's land estimated at 39 maunds, with the aid and assistance of the police as usual under Regulation XX. of 1817; that plaintiff then laid before the talookdar full information regarding his purchase of the rent-free tenure; that the talookdar then desired petitioner to produce before him whatever title deeds he had in support of his claim; that on reference to the deed of sale held by petitioner, the talookdar signified that the petitioner need not take any steps in the prosecution of the distraint case, then pending before the sale commissioner, and that he, the talookdar, would write to the gomashta to have the crops released from distraint; then by evasion, instead of releasing the crops, he ejected from the lands the ryots in 1262 B. E., and let them out to one Ram Gope; thus under color of a distraint, the defendant has ousted him from the possession of his land: he therefore sues for possession of the same. The talookdar, defendant, after raising one or two technical objections to the action as brought, proceeds to deny each and every allegation made by plaintiff, and avers that Bhooroo Dewan and certain other co-defendants, in collusion with the agent of the former talookdars and ijardar, concealed beegas 8-5 of mal lands in the village of Chunar Dighee appertaining to his purchased zemindaree lot Sancheetarah, and held possession of the same without the payment of any rent; that on the said village coming into his possession, and after enquiry, he, becoming cognizant of the matter in the beginning of 1257, called upon plaintiff to produce his lakhiraj title; that on plaintiff's failing to do so, and as he, defendant, had ascertained that they were recently mal lands, he resumed them under Section X. Regulation XIX. of 1793, and let them to Kungalee Sheikh at a jumma of rupees 5; that that ryot now holds possession of the said resumed 8-5, together with his former jote, in all he holds beegas 65-10 of land and pays a yearly rent of beegas 78-8, as may be proved from the village accounts and other evidence. Defendant then proceeds to urge the invalidity of the tenure set up by the plaintiff. Plaintiff in his replication repeats a portion of his plaint as to the mode in which he was dispossessed, and then proceeds to argue that, as rent-free tenures have frequently been recognised by courts of justice and by the Sudder Court on the strength of a 12 years' possession, how much more should his tenure be regarded, of which he has been in possession from the date of his purchase to that of his illegal dispossession by the defendant, a period of nearly 36 years? Now the first issue arising out of the above pleadings is clearly this was the plaintiff dispossessed by the defendant, of the land which he alleges to have held as lakhiraj, under color of the collusive distraint suit between the zemindar and a third party, or was he dispossessed by the zemindar acting under the provisions of Section X. Regulation XIX. of 1793? This issue has never been drawn up or enquired into. The judge, accepting the statement of the defendant, zemindar, as true, to the effect that he had dispossessed the plaintiff under the power vested in him by Section X. Regulation XIX. of 1793, simply enquires whether the (defendant) appellant was justified in so dispossessing the plaintiff or not. He has in short overlooked the first issue in the case, and decides it simply on the second. The investigation that has taken place below is consequently defective. We therefore remit the case to the judge, with instructions that he will remand it to the moonsiff, in order that he may re-try the case, making the issue above indicated the first issue in the case. Should that issue be decided in plaintiff's favour, nothing more will be necessary and plaintiff must obtain a decree; should that issue be decided in defendant's favour, the second issue will be whether plaintiff is entitled to be replaced by the court in the possession from which the zemindar has ousted him. Now there can be no doubt that, irrespective of the validity of the tenure itself in the eye of the law, plaintiff is entitled in this action to be replaced in possession of the property from which he was dispossessed by the defendant, if he can satisfactorily show that his tenure does not fall within the class mentioned in Section X. Regulation XIX. of 1793, viz., that of tenures created since the 1st December 1790; that it consequently is not one in which the summary powers of dispossession without a suit in court, given by that law, can be exercised by a zemindar. To obtain the required end, however, it is incumbent on the plaintiff to show either that the land was in existence and in his possession as lakhiraj from a date anterior to 1st December 1790, or that it was in existence and in the possession of others from a time prior to that date. No lengthened period of possession on the part of any parties subsequent to 1st December 1790, can avail any thing against a zemindar acting under the powers vested in him by Section X. Regulation XIX. of 1793. Keeping this rule in view, the lower courts will, on the second issue, determine, whether the pleadings in this case and the evidence produced to support the allegations made in them, are sufficient to sustam the claim made by plaintiff, for the recovery of possession of the lands of which he has been dispossessed, and will pass whatever decision may eventually, to them, seem just and proper. |