Proceeding then to the consideration of the issue which this appeal brings before us, we remark that the view taken of the case by the judge is defective and untenable. His words are: "I look upon the Act IV. decision of the 8th September 1846, as the immediate cause of action, and am of opinion that this suit, brought within 12 years from that date, must be heard and tried on its facts and merits." But this suit is laid to recover possession of beegas 67-1, whereas the magistrate's proceedings under Act IV. of 1840, were confined to four and a half beegas, and necessarily, excepting this fraction, the land now disputed cannot confer on the plaintiff the privilege of pleading a special exemption from the law of limitation, by reason of an investigation in which it was not referred to. Besides, even as regards the four and half beegas, the cause of action does not necessarily date from the magistrate's order. By that order, the possession of the defendants (special appellants) was determined and affirmed; and therefore, to entitle plaintiff to assert the date of that order as his cause of action, he was bound to show that the proceedings taken in the criminal court interrupted the possession which he had previously enjoyed. The judge, it seems to us, was bound in this matter to follow the course taken by the first court, and to determine upon the evidence on the record, whether or no the plaintiff had established his effective possession of the land within 12 years of the commencement of the present action, not reckoning against him the time consumed in the case tried under Act IV of 1840, with respect to the beegas 410, if it should appear that plaintiff was previously in possession of that land. It has been asserted by plaintiff that the special appellants held the land as his ryots; but the principal sudder ameen ruled, for the reasons give in his judgment, that the plaintiff had not proved this averment; and it is for the judge to consider whether the principal sudder ameen's opinion upon this point is conclusive or otherwise. We accordingly reverse the decision of the judge, and remand the case for re-trial, with reference to these remarks. Case re manded for decision on its merits, as it was held by this Court that of 1848 were THE 6TH SEPTEMBER 1858. B. J. COLVIN, ESQ., Judges. A. SCONCE, Esq., G. LOCH, Esq., Officiating Judge. CASE NO. 224 OF 1858. Special Appeal from the decision of Mr. E. S. Pearson, Additional JOOGULKISHORE SHAHA AND OTHERS, (PLAINTIFFS,) versus DOORGAPERSHAD ROY AND OTHERS, (DEFENDANTS,) Vaheels of Appellants-Baboos Shumbhoonath Pundit and Vakeels of Respondents, Doorgapersad and Bhyrubbee Monee- THIS case was admitted to special appeal on the 1st April 1858, under the following certificate recorded by Messrs. B. J. Colvin and A. Sconce. "This suit was instituted by petitioners to acquire an 8 annas the provisions share of the resumed chur Torakandee, which had been settled by of Act XIII the collector in 1842. The petitioners' suit has been thrown out not applicable, by both the zillah courts, on the ground that it was inadmissible no judicial under Act XIII. of 1848, in consequence of not having been prebeen passed, ferred within three years of the settlement: and the judge also regarding the added that petitioners' assertion of possession subsequent to the settlement was not proved. award having property in dispute, by the revenue au thorities at the time of settle ment. "The ground of special appeal is, that in this case no award was pronounced at the time of settlement which should bring the case within the provisions of Act XIII. of 1848. "No proceedings are recited by the judge which can be taken to shew that the revenue authorities had, on any occasion, to determine any question, as to right of possession, that had arisen between plaintiffs and defendant; and the mere settlement of land without a contest does not appear to amount to a possessory award. The judge refers to a petition presented by one Bhowaneepersad to the collector, on the 31st May 1843, in which he applied to be permitted to share in a settlement which had been made in his absence: but this petition was subsequent to the settlement, and the collector in his orders remarked that, though the petitioner's name was not recorded in the settlement, the omission did not affect his rights. "We admit the special appeal to try whether this suit be legally barred by Act XIII. of 1848." JUDGMENT. In this case, the provisions of Act XIII. of 1848, as barring the hearing of the suit, have been erroneously applied; for no judicial award was made at the time of settlement, and, on an application being preferred, subsequent to settlement, by the representatives of the present plaintiffs, the collector distinctly stated that the settlement with one of the partners, Shumbhoochunder, would not affeot their rights and interests. The sudder ameen, at the close of his decision, in which he declares that the plaintiffs have failed to prove their case, makes an apparently uncalled for assertion, that the suit has been framed in its present form to evade the provisions of Act XIII. of 1848, and he dismisses the suit. The judge, in appeal considers the suit to have been dismissed by the lower court as out of time under Act XIII. of 1848, and confirms that order, as he thinks the provisions of the above Act applicable to the case. As however it is not shewn that any proceeding equivalent to a judicial award, excluding the plaintiffs from the settlement, was ever passed by the revenue or other competent authority, we do not think the present action barred by the provisions of Act XIII. of 1848, and therefore, reversing the decision of the lower courts, remand the case to the judge, who will send the record to the sudder ameen for trial on its merits. Remanded to lower court default of IN the matter of the petition of Goureepersad Singh, filed in this Court, on the 28th April 1858, praying for the admission of a to reconsider special appeal from the decision of Mr. E. Jenkins, additional judge the question of of Sarun, under date 30th January 1858, affirming that of Sheikh possession, in Alee Azeem Khan, sudder ameen of that district, under date 4th which nonsuit February 1857, in the case of Goureepersad Singh, plaintiff, versus Musst. Beebee Meena and collector of Shahabad and others, defendants. F had been directed. Remanded to lower court to consider whether the durputneedar, who saved the putnee from sale, had or had not realised from the whole putnee all the arrears he had advanced for the whole putnee, not merely his receipts from his old sub-tenure. Vakeel of Petitioner-Baboo Kishensukha Mookerjea. Vakeels of the Opposite Party-Baboo Kishenkishore Ghose and Moonshee Ameer Alee on behalf of Inderpertab, and Baboo Ramapersad Roy, on behalf of the Collector. It is hereby certified that the said application is granted on the following grounds. Petitioner has been nonsuited, because unable to prove that he is the mortgagee in possession after issue of notice and foreclosure; but he pleads that he, as proprietor in possession, was admitted to settlement with the Government before the sale, and, as such, had the right to dispute the validity of the sale, the subject of suit. This appears to be a point which both the lower courts have omitted to enquire into; and as the respondents are present, we remand the case to the first court that the plaintiff's right to sue on this ground may be decided. IN the matter of the petition of Bhuggobuttee Debea, filed in this Court on the 16th March 1858, praying for the admission of a special appeal from the decision of Mr. H. C. Halkett, officiating judge of Hooghly, dated 17th December 1857, affirming that of Baboo Kassisshur Mitter, principal sudder ameen of that district, dated 8th May 1856, in the case of Baharee Lall Roy, plaintiff, versus Bhuggobuttee Debea, defendant. Vakeels of Petitioner-Baboo Kaleeprosunno Dutt and Vakeel of the Opposite Party-Baboo Kishensukha Mookerjee. It is hereby certified that the said application is granted on the following grounds. Petitioner in this case, as dur-putneedar, paid the sum of rupees 1,021 to save the superior tenure from sale, and the plaintiff in this suit calling himself the putneedar of mouza Podiparah, a village allotted to him as his share in the putnee saved from sale, sued to get possession of the putnee tenure on this mouza from the dur putneedar, petitioner, alleging that his payment of arrears and sub sequent possession were merely nominal forms in collusion with the other proprietors of the putnee, who thus had managed to keep themselves in possession of the putnee. The courts below did not consider the collusive possession of the putneedars proved, but, on an account taken of the receipts of the dur-putneedars since 1837 for the village of Podiparah, held a certain surplus to be due to the plaintiff in this action, over and above the annual rents and the arrears due from Podiparah, and decreed against the petitioner accordingly. The point in special appeal raised by petitioner is, that plaintiff is not entitled to recover possession of Podiparah solely on an account of his receipts for that mouza; that the arrears paid up by him were on account of the whole putnee, including Podiparah, Gopeenathpore, and other mouzas ; and that in a similar action to the present, brought by the putnee shareholder of Gopeenathpore, petitioner was declared entitled to hold possession of the putnee, until it was shown that the whole of the arrears paid by him in 1837, together with interest, had been liquidated. That case was remanded to be tried upon that principle. Petitioner therefore claims that this case may also be remanded that the two suits may be tried together, and the question determined whether the whole of the arrears advanced by him in 1837, together with interest, had been liquidated from the collections: otherwise petitioner contends that he is entitled to retain possession of the entire putnee until the whole of the debt has been discharged. Conceding this point, we remand this case, to be tried by the judge simultaneously with the one regarding Gopeenathpore. |