Page images
PDF
EPUB

sudder ameen decreed petitioners liable for wasilat on the 45 plots of nankar, and that the judge tried the question of their liability, and has confirmed that part of the judgment, on the ground that the evidence on the record supported such an order.

It is argued by petitioners that, as the principal sudder ameen gave no reasons for this part of his decision, the judge could not import reasons of his own for upholding the award. But we sider the judge was fully competent to reconsider any finding of the lower court, and uphold it on the grounds recorded or upon any other grounds which appeared to him more appropriate. We therefore see no reason to interfere with the lower court's judgment, and reject these two appeals, with costs.

[blocks in formation]

Application for Review of Judgment passed by Messrs. C. B. Trevor
D. I. Money, and G. Loch, in case No. 386 of 1854, decided on
the 30th November 1857.

KHAJAH ABOOL HOSSEIN KHAN alias KHAJAH
HOSSEIN KHAN, (RESPONDENT,) PETITIONER,

versus

MUSST. AMEERUNNISSA BEGUM, (APPELLANTS,)
OPPOSITE PARTY.

Vakeel of Petitioner-Moulvee Murhummut Hossein.
Vakeel of the Opposite Party-None.

page 1726.

that, in execu

property alone

A PETITION has this day been presented by Moulvee Murhum- Application for review re mut Hossein, on the part of Khaja Meeun Khan and Khaja Hossein jected, with Khan, two defendants, for an amendment of the order of the Court, the remark passed against them in case noted in the margin. tion' of the Decisions of 1857, It is represented by the pleader, that his clients, decree, that although they denied below the genuineness of which the pethe letter produced by the plaintiff and alleged to have been written titioners have by their father, viz. Khaja Hossein Alee Khan, and upon which received from the plaintiffs sued, also pleaded that they had received certain the original property from their father and were only liable to that extent: that debtor, can be brought to though his clients did not appear in the appeal before this Court, sale. still it was incumbent on the Court to have looked into the

their ancestor,

defendants' pleas upon the record and to have passed a judgment having regard to them.

On reverting to the record, we observe that none of the defendants below appeared when the case was before this Court on appeal. As therefore the plaintiff proved his case to our satisfaction, we gave a decree against all the sons of the deceased, Khaja Hossein Alee Khan. Such being the state of the case, we do not think that the applicants have any ground for asking the Court to review its judgment; but we have no hesitation in stating, what will answer the ends of the petition equally well with a review, that, in the execution of our decree, that property alone which the petitioners have received from their ancestor, the original debtor, can be brought to sale. With this observation we reject the application.

[blocks in formation]

Plaintiffs in

A. SCONCE, Esq.,

CASES NOS. 935 AND 936 OF 1857.

Special Appeal from the decision of Mr. H. C. Metcalfe, Judge of
Tipperah, dated 1st April 1857, affirming a decree of Baboo
Dwarkanath Roy, Principal Sudder Ameen of that district, dated
9th July 1856.

RAJAHS PERTAPCHUNDER SINGH AND ISHURCHUN-
DER SINGH, (DEFENDANTS,) APPELLANTS,

versus

KUMULKISHEN CHUCKERBUTTEE AND OTHERS,
(PLAINTIFFS,) RESPONDENTS.

Vakeels of Appellants-Baboos Ramapersad Roy, Kishenkishore
Ghose, and Govindchunder Mookerjee.

Vakeels of Respondents-Baboos Shumbhoonath Pundit and
Dwarkanath Mitter.

THESE cases were admitted to special appeal on the 12th Dethis suit claim cember 1857, under the following certificates recorded by Messrs. certain lakhi- A. Sconce and J. S. Torrens.

to recover

which they

had been eject

ed by the

raj land from MR. A. SCONCE." This suit was instituted against the present petitioners, defendants, to recover certain lakhiraj lands stated to have been granted by the zemindar in 1164, from which plaintiffs were dispossessed in 1249. Defendants asserted, on the other hand, both the lower that the lands in question were not held as lakhiraj and had yielded restored plain- rent to them as zemindars.

zemindars, defendants, and

courts have

posses.

sion. The

"Both the zillah courts have held the land to be lakhiraj, as tiffs' granted by a sunnud of 1164, which was registered on the 10th special appeal May 1796, and have restored plaintiffs to possession.

a

not

was admitted to try whether

the validity of the lakhiraj have been enquired into.

tenure should

Held that as the zillah

judge found that the lakhiplaintiffs,

raj tenure of created by a grant of 1164,

even if the

substantially existed, and as, tenure were adjudged subment, the land, by Section VI. XIX. of 1793, is to be condependant talook, the held below proceedings

ject to assess

Regulation

sidered as a

"For petitioners four different grounds for the admission of special appeal are asserted: first, it is said that as the suit was not instituted till 16th September 1854 (1261,) and the judge does find plaintiffs' possession later than 1246 to be proved, the suit could not be heard; secondly, it is shewn that on one occasion the land in question had been resumed by the collector, and that the demand of revenue on the part of Government was not enforced in consequence of the then zemindar, Ranee Katyanee, having undertaken to enter into a compromise with Government for all the resumed lakhiraj within her estate; hence petitioners argue that the present action is incompetent to plaintiffs; thirdly, it is said that the plaintiffs' sunnud, which was not registered till 1796, was inadmissible, and the judge has erroneously thrown on defendants the onus of proving, that the registration so made did not occur within one year of the issue of the proclamation, for the registration of sunnuds, prescribed by Section XXV. Regulation XIX. of 1793. But none of these points seems to me in this case available to the petitioners. As to the possession, the finding of the judge clearly is, that it extended not only to 1246, but to 1249, while he held that no value could be attached to the evidence adduced by defendants in proof of their own possession. Nor, again, can the plaintiffs be bound by any compromise entered into by the zemindar, so as to be restrained from suing the zemindar to recover possession from which they say was dismissed. they were forcibly ousted. Nor, thirdly, do I think the judge has erred, after the lapse of sixty years, in hesitating to assume as a matter of course that the proclamation, indicated in Section XXV. Regulation XIX. of 1793, was issued simultaneously with the enactment of that law, and in requiring proof from defendants, who raised the issue, that the registration effected in 1796 had not been conformable to the requisitions of the law. Upon the fourth ground taken by the petitioners, however, it appears to me that they have shewn cause for further hearing in special appeal. It is pleaded that it was not enough to restore plaintiffs to possession, upon the ground of former possession having been irregularly interrupted, but that the judge should have further tried and determined the validity of the plaintiffs' right to hold the land free of rent, and that, failing proof of the validity of the lakhiraj title set up by plaintiffs, they could not recover. In support of this plea, petitioners instance the decision reported at page 86 of the Sudder Decisions of 1855.

"The judge in this case 'appears to have tried the question as one affecting two distinct estates, and, holding the lahhiraj of plaintiffs to be distinct from the mal land of defendants, to have simply

were not defective, and the special appeal

restored plaintiffs to possession of land from which defendants had without cause ousted them. Upon the whole, however, with reference to the precedent quoted, I admit the special appeal to try whether, upon this fourth ground, the judge's decision should be upheld.

"The same order applies to No. 936."

MR. J. S. TORRENS." It has been found in this case, that the plaintiffs held complete legal possession of the land in suit until forcibly dispossessed by the petitioners, the defendants. This wrongful act of dispossession having been proved, I am not of opinion that, under any correct construction of the law as laid down in our regulations, defendants can be upheld in the possession thus acquired, which they might virtually be, if the courts were to go into the question of trying whether the grant, under which the plaintiffs had been allowed so long to continue in possession of the land as lakhiraj, was a good one or not. However bad the grant might be proved to be in a suit regularly brought under Section XXX. Regulation II. of 1819, the course which defendants are found, under the decision of the judge, to have taken in ousting the plaintiffs, cannot be legally justified; and to pass any order in favor of defendants in a case arising as this has done, which would give them power to resume or assess the lands by means of such order, would be opposed to every principle of our regulations on the subject as well as to the real question at issue in the case. If defendants questioned plaintiffs' right to hold the land free of assessment, the legal course was open to them under Regulation II. of 1819. They cannot now have any benefit of their own wrongful act on trial of this case.”

JUDGMENT.

The facts determined by the lower court in this matter are, that the plaintiffs, by a sunnud dated 1164, and registered on the 10th May 1796, had held as lakhiraj the land which formed the subject of the suit up to the year 1249, when they were summarily dispossessed, and accordingly the plaintiffs have been restored to possession without an enquiry into the validity of the tenure asserted by them. Under these circumstances, it appears to us that no ground exists for throwing the plaintiffs into proof of the validity of their title in the present action. The tenure is determined upon the evidence to have substantially existed; and whatever be the condition of the original grant, or the right of the present incumbents to hold the grant upon its original terms, the zemindars, special appellants, were not competent summarily to eject the incumbents from possession; and in the language of Section VI. Regulation XIX. of 1793, even if the tenure were adjudged subject to the payment of rent, the land is to be considered as a dependent talook. We therefore see no defect in the proceedings

of the lower courts in this case, and we dismiss the special appeal, with costs. We may at the same time refer to the judgments made in somewhat similar cases on the 30th June 1857 and 8th March 1858.

The same order applies to No. 936.

THE 5TH AUGUST 1858.

PRESENT:

C. B. TREVOR, Esq.,

D. L. MONEY, ESQ.," Officiating Judges.

PETITION No. 200 OF 1857.

Petition for Review of Judgment passed by Messrs. C. B. Trevor,
E. A. Samuells, and D. I. Money, in case No. 68 of 1857, decided
on 27th July 1857.

ISSURCHUNDER LAHOOREE AND OTHERS, (Appellants,)
PETITIONERS,

versus

NARAIN ACHARJ CHOWDREE, (RESPONDENT,) OPPOSITE
PARTY.

Vakeel of Petitioners-Mr. R. T. Allan.
Vakeel of the Opposite Party-None.

Issurchunder Lahooree and others versus Narain Achurj

Chowdree.

having affirm

the matter was first before it,

Court when

to the effect that, before

AN application for a review of the decision come to by the Court Application for review rein the case noted in the margin, has been jected, a Court made by Mr. Allan, on the part of Issur- of five judges chunder Lahooree, (defendant,) appellant. ed the view The order of the Court, of which a review taken by this "We are clearly of opinion is required, was to the following effect. that, under the circumstances stated in the certificate, upon the remand of the case by the judge, the principal sudder ameen was competent to summon the plaintiff to give evidence, under the provisions of Act XIX. of 1853, on the application of the defendants; but as it is not proved that the summons was personally delivered to the plaintiff, as required by Section XXIV. of the Act, the plaintiff is not liable to the penalty of dismissal of his plaint, which the same Section prescribes for non-appearance after service. We therefore affirm the judge's decision, and dismiss the special appeal, with costs."

A review of this judgment is solicited, on the ground that a personal service was not necessary under Section XXIV. Act XIX. of 1853, but that if the summons be issued, whether served personally or not, and the party do not attend, he is liable to the penalty prescribed by that Section."

E

imposing the penalties preSection XXIV. Act XIX. of survice of the semmons must effected.

scribed in

1853, personal

have been

« PreviousContinue »