Remanded stated as to the issue. THE 6TH SEPTEMBER 1858. PRESENT: H. T. RAIKES, Esq., Judge. H. V. BAYLEY, Esq., Officiating Judge. PETITION No. 186 OF 1858. IN the matter of the petition of Ramdhun Mistry, filed in this for the reasons Court on the 19th February 1858, praying for the admission of a real point at special appeal from the decision of Mr. E. Lautour, dated 20th November 1857, reversing that of Baboo Obhoycoomar Dutt, sudder ameen of that district, dated 31st December 1856, in the case of Ramdhun Mistry, plaintiff, versus Ramasoondree Debea and others, defendants. Vakeel of Petitioner-Baboo Dwarkanath Mitter. Vaheels of the Opposite Party-Baboo Shumbhoonath Pundit. and Moulvee Murhumut Hossein It is hereby certified that the said application is granted on the following grounds. The petitioner was plaintiff, and sued for a declaration of his right to a settlement with Government for 4 cottas and 11 chuttacks of land, lakhiraj and dureepun, in preference to the defendants, with whom a settlement has been concluded. The judge has reversed the lower court's decree in favor of petitioner, because he has failed to account for the difference in quantity of the lands in suit, as measured and recorded in a measurement chitta of 1222 B. S. Petitioner states that the chitta of 1222 records the lands as 1 cotta more or less, but that when the same land was measured and settled with him in 1235, the measurement showed 4 cottas and 11 chuttacks to be the real quantity, and for these lands a settlement was then concluded with him. Subsequently, in 1244 B. S., another measurement and settlement were ordered, and the deputy collector then deputed made a settlement with the defendants for the lands, which were then measured as similar in extent to the measurement of 1235. Petitioner appealed against this rejection of his right to settlement, and the settlement proceedings were reversed, and ordered to be revised; and the deputy collector who performed this duty, finding the defendants in possession, under the settlement of 1244 B. S., refused to dispossess them, and referred petitioner to the civil court. The present action was then instituted; and petitioner now pleads in special appeal that the only point for determination is, whether or not petitioner was the party in possession under the first settle ment of 1235 B. S., as then he will have a preferential right over the defendants to the more recent settlement; and the determination of this fact cannot depend upon the exact quantity of land recorded in the chitta of 1222, but whether the lands now in suit were those he then held under the settlement, and whether the deputy collector did not find his name registered as the party in possession, and with whom settlement had been made, and in lieu thereof substitute the names of defendants, as the new party with whom settlement for these same lands had been more recently concluded. We admit that this appears to be the real point at issue, and that it may be determined in the way pointed out by the petitioner, irrespective of any apparent inconsistency regarding the quantity of lands recorded in 1222; and, as the substantial justice of the case will be better met by this mode of trying the issue, we remand the case to the judge to be so dealt with. Special Appeal from the decision of Mr. G. L. Martin, acting Judge of Sarun, dated 10th July 1857, affirming a decree of Mirza Mahomed Sadiq Khan, Principal Sudder Ameen of that district, dated 10th February 1857. RAMBILASH SINGH, (ONE OF THE DEFENDANTS,) APPELLANT, versus BEEBEE AZMUT JEHAN, (PLAINTIFF,) AND NOORJEHAN Where money was lent with pro mise of a further loan, when the "From this case, it appears that by a deed of zur-i-peshgee, dated 21st November 1830, or Aughun 1238, Durgahee Khan condi- transaction tionally purchased the mouza Musha from three parties, paying in was to be concash rupees 1,702, and agreeing to pay the additional sum of conditional rupees 7,103, in discharge of another encumbrance in 1245 Fuslee; mortgage, sidered one of which promise was never ful that the origi. nal loan being filled, held recoverable only as a debt, this case was barred by the law of limitation. that Durgahee Khan was to enter in possession from 1246; and that in 1255 the vendors (or borrowers) should redeem the sale by repaying the advance. "Excepting the first payment of rupees 1,702, Durgahee Khan made no advance on behalf of the vendors, nor did he get possession of the village. In August 1844, the rights of two out of the three vendors, in the mortgaged village, were sold to Rambilash Singh; and accordingly the present plaintiff, widow of Durgahee Khan, the conditional purchaser, sues Rambilash Singh for a two-third share of the advance of rupees 1,702. "Both the lower courts have decided for plaintiff, and two issues are raised in special appeal. "First, it is contended that the judge has erroneously applied the law of limitation. Taking at the latest the year 1246, from which, on completing the terms of his engagement, Durgahee Khan was to enter in possession, it is said that, as Durgahee failed to fulfil his engagement, and took no steps against his debtors, till the institution of this action, on the 9th July 1856, (1263,) the present claim to recover part of the loan made is barred by lapse of time. "Secondly, it is said that plaintiff has wrongly brought the present petitioner into court; that petitioner cannot be held to be personally answerable for the loan made by Durgahee Khan, as the personal liabilities of the borrowers were not involved in the sale of the village. "Whatever lien Durgahee Khan may have acquired over the mouza Musha, it seems doubtful whether this action is properly laid. We admit the special appeal to try both the above points." JUDGMENT. We are of opinion that the judgment of the lower courts cannot be sustained in this case, for we consider that the suit is barred by the law of limitation. The money now claimed, i. e., 3rds of the sum of rupees 1,702, was paid in November 1830 or between 25 and 26 years before the institution of the suit. The lender did nothing more than advance that sum, so that the transaction never assumed the form of a conditional mortgage, which it would have done had he acted up to the other conditions agreed upon. It was but a loan to the original borrowers, recoverable as any other debt, and therefore it could not have been recovered from them after the lapse of 12 years without demand. This being the case, it follows that the claim against petitioner cannot be upheld, for he purchased the 3rd rights in the villages in August 1844, or nearly 14 years after the advance was made. Again, had the balance been paid as proposed in 1245, the new cause of action which might then have arisen from 1246, would not have saved plaintiff, who sued only in 1263, or seventeen years after that date. The suit is accordingly barred by the law of limitation. Under this view, it is unnecessary to consider the second point recorded in the certificate. We reverse the judgments of both the lower courts, and decree for petitioner, with costs throughout. THE 6TH SEPTEMBER 1858. PRESENT: B. J. COLVIN, ESQ., Judges. A. SCONCE, Esq., G. LOCH, Esq., Officiating Judge. CASE NO. 826 OF 1857. Special Appeal from the decision of Mr. R. N. Farquharson, Judge KUNTOO SINGH AND OTHERS, (SOME OF THE DEFEND- versus UNOOP ROY, (PLAINTIFF,) AND SHEEB SARUN AND Vakeels of Appellants-Baboo Kishenkishore Ghose and Moonshee Vakeels of (Plaintiff) Respondent-Baboos Shumbhoonath Pundit, This suit, brought to re cover beegas 67, was dismissed by the principal "This suit was instituted to recover possession of beegas 67-1, being half of an altumgha tenure, amounting to beegas 134-2, and sudder ameen plaintiff, the respondent in this special appeal, asserted that he as barred by limitation; but was dispossessed of the same in 1846, under cover of an order, the judge, havpassed under Act IV. of 1840, in favor of defendants for beegas 4-10. as ing held the case to be filed within time, sent back the record to be tried on its "By the principal sudder ameen, plaintiff's suit was dismissed barred by the law of limitation; but on appeal, the judge has held the claim not to be barred, and hence the present application. merits. The "Petitioners urge that the grounds set forth by the judge was admitted special appeal present no legal reasons for holding the inapplicability of the law of limitation. In his judgment, the judge appears to have been influenced mainly by the proceedings held in 1846, under Act IV. to try the legality of the judge's ruling. Held, first, that though the principal sudder ameen's decree on the merits had been made, after remand, that decision did not preclude the disposal of this of 1840. It appears from his own showing, however, that on that occasion, two of the defendants in the case had complained of being dispossessed of beegas 4-10, and that on their complaint being proved they were ordered to be restored. The judge also remarks that, in the survey papers of 1844 and 1845, the names of the respondents were entered as ryots, not maliks. "We admit the special appeal to try whether the judge has appeal upo rightly applied the law upon the point referred to." the point taken. Held also that the judge erred in taking an order made under Act IV. of 1840 as the plaintiff's cause of ac tion; for only were on that beegas 4-10 occasion in dispute, and she plaintiff's possession within 12 years of suit should be tried. JUDGMENT. In the course of the hearing of this case, it was contended by Baboo Kishensukha Mookerjea, for the respondent, with reference to the case reported at page 410 of the Decisions of 1857, (Jeetnath Sookul, appellant,) that as, subsequent to the order of remand made by the zillah judge, the principal sudder ameen had disposed of the suit upon its merits, this appeal could not proceed. In Jeetnath Sookul's case, the lower appellate court had remanded the record for re-hearing, on the ground that the decision of the moonsiff was not drawn up in accordance with the original draft in his own handwriting; and as the moonsiff had re-disposed of the suit, it was considered unnecessary to go on with the special appeal. But these circumstances very materially differ from those now before us. Here the zillah judge having held the plea of limitation, urged by defendant, not to apply to the plaintiff's claim, the case went back to be disposed of on its merits. Essentially, therefore, the decision pronounced by the principal sudder ameen at the first hearing, was upon a distinct issue from that which has been under consideration in his second decision. The question of limitation alone is now before us, and this question precedes and is apart from the question of merits. It may be that this question would be again open to special appeal after the zillah court, on appeal, had disposed of the principal sudder ameen's second judgment; but as the present special appeal has been admitted to try the legality of the zillah judge's finding upon the point of limitation, a point not involved in the second decision of the first court, it appears to us that appellant is entitled to have that question now heard and determined. |