A decree having been given in the Supreme Court in favour of a nephew against his two uncles for his 3rd share and for personalty and mesne profits, the property allotted to the lat ter by partition was made answerable for estate in suit having been sold in execution as within Regular Appeal from the decision of Roy Ramlochun Ghose Baha- MR. ROBERT MOLLOY, MR H. POE, EXECUTOR OF Mr. versus DAMOODURCHUNDER ROY CHOWDREE, GUARDIAN OF RESPONDENTS. Vakeels of Appellants-Baboo Ramapersad Roy Vakeels of Respondents-Baboo Shumbhoonath Pundit and CLAIM to obtain possession of the zemindaree, called Dehee The property in suit was sold at a sheriff's sale, on 20th April 1854, and bought by appellants, who, failing to get possession, now sue the defendants for it; these alleging purchase, by their ancestors, of the estate, so far back as 9th April 1809, from the ancestors of the judgment debtors in the Supreme Court. The allegation of the appellants is, that Buddeenath Pal Chowdree, son of Ramneedhee Pal Chowdree, the brother of Kishtochunder and Sumbhoochunder Pal Chowdree, was dispossesssatisfaction of ed by his two uncles of his one-third share of the paternal estate the debt. The derived from his grandfather, Sohosroram Panty, in or about 1804 and 1805. Afterwards he filed a bill in equity, on 7th July 1810, against his uncles and their heirs for his share, and got a decree on 12th December 1820, declaring his right to 3rd of the ancestral realty and personalty as it existed up to 4th December 1805, till which date the family were held to have been joint and undivided. The Master's report was called for on the subject of that property, who, on the 16th February 1847, gave a schedule of it as it was in 1212 or 1805, inclusive of Dehee Alpha. Onethat it was the third of the whole was decreed to Buddeenath Pal Chowdree or uncles' proper- his heirs on 5th August 1850, and the Master was again directed the uncles' share and bought by plaintiffs, possession of it was sued for by them, on the ground ty. But on alienation by to report what was the value of the personalty and the amount proof of its of mesne profits due to them. This report was submitted on 22nd them prior to February 1853, valuing the former at rupees 7,28,000, and the the institution latter at rupees 24,12,917-3-4, and a commission of partition, which of the suit in had been issued, having also submitted its report on the 27th Court, and of the defendants' January 1853, both reports were confirmed by the Supreme Court bonâ fide on 1st April 1853, when it was ordered that the above sum possession for should be a charge upon the joint real and personal estate of upwards of 12 the two uncles and their representatives. By the partition, Dehee the final award Alpha fell to their share, and it was sold as above stated for in that Court, the realisation of the debt; so that appellants, having bought it, ants had not argue that it was properly responsible, under the terms of the been parties to decree of the Supreme Court making the sums due a charge upon question, the the estate of the above parties, and that therefore they were entitled claim of plainto possession in virtue of their purchase. Defendants rely upon their bonâ fide purchase prior to the institution of the equity suit, and assert that the estate could not be sold in satisfaction of any claims under the decree against the representatives of their vendors. The principal sudder ameen dismissed this suit for several reasons. He held the alleged purchase and possession according to it before the suit was brought in the Supreme Court, to be proved. He held also that the respondents had had 12 years bond fide possession before the 1st April 1853, or date of final award in that Court, and that the present defendants were not defendants in the equity suit, the decree in which was only against the estate of those who had been sued in it. The pleas employed in appeal are that, the decree in the equity suit gave the plaintiffs one-third and a lien over two-thirds of the property in suit for the satisfaction of wasilat, &c., and that the sale of Dehee Alpha in 1809 was therefore invalid as selling their one-third share and the two-thirds thus liable. It is also objected that 12 years' possession by defendants was no bar to this suit, which could only be instituted after the final decree of 1st April 1853, and that the Master included the estate within the divisible property, notwithstanding his having been informed of its sale. The doctrine of lis pendens is also referred to as showing that no steps could be taken to set aside the sale till appellants' rights were declared. The appellants, it is explained, stand in the place of the plaintiff in the equity suit in the Supreme Court, who themselves bought the property in litigation at the sheriff's sale. After attentively considering the arguments of the pleaders on both sides, we are of opinion that the judgment of the principal sudder ameen, in this case, is quite correct. Appellants have assumed that they must be considered to have had retrospectively a one years before and as defend. the suit in tiffs was dismissed, in affirmation of the judgment of the lower court. Plaintiff sued defen dants for ar. rears of rent third share of Dehee Alpha, and that therefore the transfer of such share was invalid. But this argument cannot be admitted, because, by the partition, Dehee Alpha was allotted entirely to the opposite party, so appellants thereby lost the right to any portion of it; and as to its being liable under the decree of 1st April 1853, as portion of that party's estate from which appellants could claim payment of wasilat, &c., the decree cannot affect the present respondents, who were not parties in the suit, and who are seen to have been in bonâ fide possession antecedent to the institution of the equity suit. To controvert the principal sudder ameen's reasoning, founded upon possession of the respondents for 12 years before the 1st April 1853, it has been contended before us that, as the plaintiff in the equity suit was a minor between the date of sale, 9th April 1809, and its institution on 7th July 1810, and as the present claim was preferred without delay after the final decree of 1st April 1853, the suit is not barred by the law of limitation; but we observe that the principal sudder ameen has not dismissed this suit as barred by that law. He has not denied appellants' right to sue, but, in acknowledgment of such right, has tried the case on its merits, and amongst other reasons for his judgment, has assigned the one that the defendants have established a good title to Dehee Alpha, by their bonâ fide possession of it for 12 years before 1st April 1853. remaining argument, that till appellants' right was conclusively declared on that date they could not sue, may be similarly disposed of, for they have not been met with the objection that they should have sued sooner. For these reasons, we affirm the decision of the principal sudder ameen, and dismiss this appeal, with costs. THE 27TH JULY 1858. PRESENT: C. B. TREVOR, Esq., H. V. BAYLEY, Esq., Officiating Judges. PETITION No. 554 OF 1858. The IN the matter of the petition of Mahomed Wassil and others, filed in this Court on the 13th April 1858, praying for the admission of a due from 1206 to 1217. Defendants acknowledged possession during 1206, 1207, and 1208, but alleged that they had been dispossessed and the collections made khas by the plaintiff from 1208 to 1217. Moonsiff gave plaintiff a decree for rupees 24. On appeal the principal sudder ameen, without noticing defendant's plea of dispossession since 1208, decreed plaintiff's claim in full. Held that the decision of the principal sudder ameen in the present case is defective, and must be remanded in order that he should put in issue the dispossession of defendants by plaintiffs in 1209, as pleaded by him, and then pass whatever decision may seem adapted to the facts found by him. Case remanded accordingly. special appeal from the decision of Baboo Nobinkissen Paulit, principal sudder ameen of Chittagong, under date the 5th January 1858, reversing that of Moulvee Sookur Alee, moonsiff of Futtickcherry, under date 24th December 1857, in the case of Musst. Karunjanoo, plaintiff, versus Mahomed Wassil and others, defendants. Vaheel of Petitioners-Moulvee Aftabudeen Mahomed. Vakeel of the Opposite Party-Baboo Unokoolchunder Mookerjea. It is hereby certified that the said application is granted on the following grounds. Musst. Kuranjanoo sued Mahomed Wassil and others, for arrears of rent due from them from 1206 to 1217. The defendants acknowledged possession during 1206, 1207, and 1208, but alleged that the lands had been taken and managed khas by the plaintiff from 1208 to 1217. The moonsiff decreed in plaintiff's favor to the extent of rupees 24. The principal sudder ameen, without taking any notice regarding the khas collection made by the plaintiff, as alleged by the defendants, decreed plaintiff's claim in full. Defendants now appeal specially, urging that they should only have been made liable to the extent of plaintiff's claim, on the finding that they had been all along in possession; that there was no finding on the subject, though they had recorded the point in their pleading by stating that they had been dispossessed by the plaintiff. We think that the objection of the defendants, special appellants, is a valid one, and that the decision of the principal sudder ameen as it stands is defective. We therefore remand the case to the principal sudder ameen, with directions that he will put in issue the possession of defendants or their dispossession by, or the possession in any way of, the plaintiff from 1209 to 1217; and should he find defendants' possession clear, he will of course decree the claim; should he find however any other state of things, he will pass whatever decision may seem adapted to the facts found by him. Should he determine defendants to be out of possession, that party can, if so advised, bring an action against the plaintiff for possession of the land, with niesne profits, from the date of their dispossession. M Unless plaintiff's were defaulters of the revenue of the jageer in the sense of Section XVI. Regulation Section XXV. was no bar to their action in the civil court against the legality of the revenue sale of certain other land on ac THE 29TH JULY 1858. II. T. RAIKES, ESQ., Judges. D. I. MONEY, Esq., Officiating Judge. CASE No. 545 OF 1857. Special Appeal from the decision of Mr. R. J. Scott, Additional Judge of Dacca, dated 14th February 1856, affirming a decree of Moonshee Nyemooddeen Mahomed, Sudder Ameen of that district, dated 11th November 1854. BISHENCHUNDER MOOKERJEE AND OTHERS, (PLAINTIFFS,) APPELLANTS, versus THE COLLECTOR OF DACCA AND SHIBCHUNDER DASS Vakeels of Respondents—Baboo Ramapersad Roy, on behalf of the THIS case was admitted to special appeal on the 18th May 1857, under the following certificate recorded by Messrs. H. T. Raikes and A. Sconce. "The petitioners, as plaintiffs, instituted the suit to which the present application refers, for the purpose of setting aside the sale of their estate, which was made ostensibly in conformity with the provisions of Regulation XI. of 1822. "It appears that the sale in question did not occur by reason of any arrear being due from the estate itself, but on account of an arrear supposed to be due by plaintiffs from certain jageer land, which they were supposed to be in possession of. It was admitted in the answer of the collector, that the quantity of the land from which the arrear was assumed to be due had not been ascertained, and that no settlement had been entered into by the plaintiffs with Government; but it was asserted that possession of the land alone on appeal had determined the plaintiffs' liability. count of alleged balances from the ja geer, although been made at the time to the commissioner against the sale. Case remanded for trial of the case on its "These being the facts, the question arose before the sudder ameen whether, since plaintiffs had not objected to the sale by a petition to the revenue commissioner, in conformity with Section XXV. Regulation XI. of 1822, their suit could now be heard. Both the lower courts have held the suit to be inadmissible; and the merits. |