ment of her husband, by the title which he set up to one portion of the property which on his death he left behind him? Now it seems to me, that the case made out for special appellants is so strong as to put defendant to the proof of the common application of the ordinary law of inheritance, instead of the existence of a custom contrary to that law. We have, on the part of special appellants, the judgment of 1848, which gave effect to the custom, said by Mohadeo and several relatives, his co-plaintiffs, to be in operation, and we have the decision of 1834, which affirmed generally that, by the custom of the Nagpore territory, widows did not succeed their husbands. In opposition to this evidence of the customary law of succession, we are, by the respondent, shewn nothing. To whichever of the judicial decisions, affirmatory of the custom asserted by special appellants, we refer, the legal operation of the custom is effectively expressed. The decree of 1834 declares the custom to be common to all Nagpore: and necessarily a custom of succession, common to the entire territory, is common to all the families living within that territory; and again the decree of 1848 holds the custom to habitually regulate the succession of this family. Such authoritative recognition of the existence of a custom of succession, in supersession of the ordinary law, seems to me to require us to ask defendant, what proof she has to offer that not the custom asserted by plaintiff but the law of the Mitakshara, should regulate the succession to her deceased husband's estate. If we were to suppose conclusively that she had no such proof, I think we should have no alternative but to give judgment for special appellant. But probably, the question is too important to be decided by the records as made up, under what seems to me to be the incorrect view of the case taken in the lower appellate court. The deputy commissioner was of opinion, that a division of the family property among the living members in 1833 precluded the existence of the custom at an earlier date: but though a custom may be rarely exercised, it may still have legal operation so long as it is not set aside by the enforcement of the ordinary law; and, necessarily, a judgment which rules that any given custom regulates the succession in an entire territory a fortiori governs the individual rights which that territory comprises. I think, therefore that it would be more just to give the parties, but particularly the defendant, respondent, another opportunity of adducing proof of the existence of a family or territorial custom; and for that purpose I would remand both cases to the deputy commissioner. Suit remanded for re-trial, as the proper issues had not been determined. PETITIONS Nos. 307 AND 758 to 765 or 1858. IN the matter of the petition of Government, defendant, special appellant, filed in this Court on the 6th March 1858, paying for the admission of a special appeal from the decision of Mr. H. S. Thompson, principal sudder ameen of East Burdwan, under date the 17th December 1857, affirming that of Baboo Judoonath Mullick, sudder moonsiff of that district, under date 30th April 1856, in the case of Joykishen Mookerjea, plaintiff, versus Government, defendant. Vakeel of Petitioner in No. 307-Baboo Shumbhoonath Pundit; Vakeels of the Opposite Party, only in No. 307, Mr. R. T. It is hereby certified that the said application is granted on the following grounds. These suits were instituted under the provisions of Section XLI. Regulation VIII. of 1793, to resume certain lands, held by the defendants as chakeran, on the plea that they were malgoozaree lands, assigned to the parties in possession for the performance of certain duties connected with the zemindaree; and that, as these duties had ceased to be performed, the zemindar was entitled to resume them. It is however admitted by the zemindar that the defendants performed both zemindaree and police duties, but for what period is not distinctly stated. The Government, one of the defendants in these cases, pleaded that the lands were thanadaree lands, assigned to the chowkeedars for the performance of police duties, which they still continue to execute. It is not denied by the defendant, special appellant, that Section XLI. Regulation VIII. of 1793, applies to these lands; but the lower courts, without determining the issue which arises out of the defendant's pleadings, viz. whether the lands were or were not assigned for police duties, have declared that the plaintiff had authority to resume the land under the Section quoted above. As this point has not been determined, the decisions are consequently imperfect, and as the zemindar, the real respondent in these suits, has appeared in this Court, we remand them for the trial of the following issues which arise out of the pleadings: first, what were the duties performed by the party in possession of these lands at or antecedent to the decennial settlement, or for a long series of years? secondly, if the duties were wholly zemindaree, has it been proved that these duties have ceased so as to entitle the zemindar to resume? thirdly, if the duties performed were partly zemindaree and partly police, whether, on proof of the cessation of the zemindaree duties, though the police duties continue to be performed, the zemindar can resume the lands. As the points raised in these cases are of considerable importance, and it is understood that several similar suits have been instituted, rendering an early decision of the present cases advisable, we think that they should be tried by the judge himself, who will take them up without reference to their order on the file. Special Appeal from the decision of Mr. G. L. Martin, Additional RAMLAL JHA AND OTHERS, (SOME OF THE DEFENDANTS,) versus MOHUNT BALMOKUND DASS, (PLAINTIFF,) AND LALJEE THIS case was admitted to special appeal on the 4th April 1857, under the following certificate recorded by Messrs. B. J. Colvin and J. S. Torrens. "This was a suit to recover wasilat from the defendants, on the plea that the plaintiff had acquired the rights of settlement of the lands in suit, under a hibbanama, given him by the former lakhirajdar, and orders of the Board of Revenue which had annulled a settlement made by the subordinate revenue authorities with defendants as maliks of the village. The defence made was that, as the subordinate revenue authorities had placed defendants in possession of the lands, according to settlement, they, defendants, could not Held that as the maliks had been granted the settlement by competent authority, the claim to wasilat was invalid. Suit accordingly dismissed. be held liable for wasilat during the period of such possession; and, further, that the hibbanama, under which plaintiff alleged his title to have been acquired from the former lakhirajdar, did not cover any right to the wasilat. The suit having been eventually decided in favour of plaintiff, by the additional judge of Tirhoot on the 8th July 1851, on a special appeal by defendant before this Court on 24th of April 1852, it was remanded, that the judge might pass a fresh decision as to the right of plaintiff to sue the defendant, then petitioner, for wasilat on the ground of the hibbanama. The decision of the judge, from which the present appeal is preferred, determines that, as the donor of the hibbanama acknowledged that the document was intended to give the right to the wasilat, and as the constructive terms of the document included such right, plaintiff was entitled to them. "Petitioner urges three grounds for special appeal against this order. "First.-That when the settlement had been made with defendant, by order of the revenue authority, and possession retained by him accordingly, he could not legally be responsible for wasilat, as ruled in a precedent of the 11th December 1851, page 748. "Secondly. That the hibba was dated in 1848, and the demand included four years anterior to that, for which period plaintiff could not under any circumstances have a right to sue. "Thirdly. That the hibbanama does not in its terms convey any right to the wasilat or to interest as decreed. "The special respondent argues, that the orders of remand of this Court, of the 24th of April 1852, barred any enquiry on the first ground of objection as above set forth, inasmuch as the orders had limited the point to be enquired into merely to the title under the hibbanama. "It does not appear quite clear to us, on reference to the orders of remand referred to, whether the enquiry under the nature of the pleadings in the suit is limited to the right merely under the terms of the hibbanama, or whether the whole question, as to the right and recovery of wasilat, with reference to the orders of settlement, remained open. We admit the special appeal, to try the correctness of the judgment of the lower appellate court on all the points involved.' JUDGMENT. MESSRS. B. J. COLVIN AND J. H. PATTON.-The tenure, of which wasilat is sought in this case, was on resumption settled permanently with the petitioners, as maliks, who retained the settlement for five years, when the settlement with them was, on appeal to the Board of Revenue, cancelled, and it was directed to be made with the lakhirajdar, whom plaintiff, special respondent, now represents. His claim is for wasilat from petitioners for the five years in question, or from 1244 to 1248 Fuslee inclusive. Petitioners object that they are not liable to pay wasilat, and pray for reversal of the orders of the lower courts in favour of special respondents. We are of opinion that these orders must be reversed. We find from the settlement officer's roobukaree of settlement, dated 15th April 1836, that he ascertained from the lakhirajdars themselves that they did not own the milkeeyut of the tenure, but that Bukht Roy and others were the maliks and in enjoyment of the malikana land. He therefore on account of the invalidity of the alienation by the grantor, who was not the malik, but a local officer, held that, by Section IV. Regulation XIX. of 1793, the maliks were entitled to the settlement, which was therefore concluded with them, and remained in force until it was upset by the Board of Revenue, on the ground that the grant being a hookamee one, the minhyedars could not legally be ousted. It has been argued before us, for petitioners, that the settlement first made by the settlement officer with the maliks was reversed in favor of the lakhirajdar according to Regulation XIII. of 1825. This, however, from the foregoing recital of the circumstances, was not the case: nevertheless the question in issue now, i. e. special respondent's claim to wasilat from petitioners, does not appear to us to be at all affected thereby. The settlement was made with them by the settlement officer, who had full jurisdiction to try and decide with whom it should be made, and although he, in the opinion of the Board of Revenue, erroneously gave petitioner the settlement, it cannot be said that they had wrongful possession of the village, but they held it under a bond fide title, conveyed to them by the officer in question, who decreed that the right belonged to them by law. It is also to be borne in mind that the parties did not stand to each other in the same relation; they were not maliks versus maliks, or minhyedars versus minhyedars, so that on the one being ousted in favor of the other, the successful claimant obtained that of which the other had been deprived, and with it the right retrospectively to whatever the losing party had enjoyed. It was not in fact a case of adverse possession between parties asserting equal rights, but it was a question between parties advancing totally distinct rights, which could not co-exist, and of which the recognition of one, as to exclusive title to settlement, could not take place without annulling the right of the other; but until such annulment the right was a valid and substantial one, called into being by an authority legally competent to create it. The petitioners are not shewn to have put forward any false claims to be considered maliks, and even in the settlement, ultimately made with special respondents, provision is made for payment of malikana, so that, as regards the settlement in the first instance with K |