In the matter of the petition of Mudhoosoodun Singh, filed in this Court on the 19th May 1858, praying for the admission of a special appeal from the decision of Mr. P. Tayler, Judge of West Burdwan, dated the 22nd February 1858, reversing that of Pundit Gobindehunder Nyaruttun, principal sudder ameen of that district, dated 15th December 1857, in the case of Mr. James Erskine, plaintiff, versus Mudhoosoodun Singh, defendant. to the matter of limitation, Vakeels of Petitioner-Baboos Kishenkishore Ghose and Obhoy- which had not churn Bose. Vakeels of the Opposite Party-Moonshee Ameer Alee and Baboo Taruknath Sein. It is hereby certified that the said application is granted on the following grounds. Petitioner pleads, that the suit in which he is defendant was nonsuited by the principal sudder ameen for reasons stated, and that order of nonsuit was reversed by the judge; that he cannot appeal specially on the propriety of upholding the nonsuit, but he appeals against a part of the judge's decision in which he has declared that the suit is not barred by limitation. This the judge was not competent to declare, as the first court had not tried the issue of limitation; and petitioner prays that any opinion on that question may be expunged from the judge's order, and the first court left at liberty to decide any such issue the parties may raise before it. We are not shewn by the respondent that this was a question in any shape determined by the court of first instance, and consequently the point was not within the cognizance of the appellate court, which had only to decide upon the validity of the nonsuit order passed by the principal sudder ameen. We remand the case to the judge, that he may withdraw from his judgment any opinion as to the suit being barred by limitation, and allow the point, if raised by the parties, or if deemed worthy of consideration, to be decided by the lower court according to its own view on the subject. been raised in issue before the principal sudder ameen. Special ap in order to ensure unifor mity of decision, the THE 20TH SEPTEMBER 1858. PRESENT: H. T. RAIKES, Esq., Judge. H. V. BAYLEY, Esq., Officiating Judge. PETITION No. 343 or 1858. IN the matter of the petition of the collector of East Burdwan peal admitted, on behalf of Government, one of the defendants, filed in this Court on the 11th March 1858, praying for the admission of a special appeal from the decision of Mr. H. S. Thompson, principal sudder ameen of East Burdwan, dated 30th December 1857, affirming that of Baboo Ramtaruk Roy, Moonsiff of Culna, dated 29th December 1856, in the case of Gobindnarain Mookerjee, plaintiff, versus the 307 and 758 to collector of East Burdwan and others, defendants. case being the same as admit ted special appeals Nos. 765. Vakeel of Petitioner-Baboo Ramapersad Roy. It is hereby certified that the said application is granted on the following grounds. This application was submitted for hearing with some other cases involving the same point as the special appellant here raises: but while those other cases were remanded for re-trial, this application remained on the file that the respondent might be summoned to attend at the hearing. The respondent having been warned and omitted to attend, we, without giving any opinion on the point mooted, but simply to ensure uniformity in the decisions ultimately passed in these cases, deem it expedient that this case shall also be remanded for re-trial on the issues recorded in Nos. 307 and 758 to 765, of the 22nd June 1858. The case is remanded accordingly. THE 21ST SEPTEMBER 1858. PRESENT: H. T. RAIKES, Esq., Judge. H. V. BAYLEY, Esq.,} Officiating Judges. CASE NO. 126 OF 1858. Special Appeal from the decision of Moulvee Mahomed Nazim Khan, versus NYAMUTOOLLAH OSTAGUR AND OTHERS, (DEFEND- Vakeels of Appellants-Baboos Shumbhoonath Pundit and Vakeels of the Respondent, Nyamutoollah-Moonshee Plaintiff's were joint THIS case was admitted to special appeal on the 19th February 1858, under the following certificate recorded by Messrs. A. Sconce shareholders and J. S. Torrens. "This suit was instituted to recover possession of a half share of certain lakhiraj land distributed in five plots, and to cause the buildings erected on three of these plots to be thrown down. The principal sudder ameen has affirmed the order of the first court as to the land, but has refused to give an order for the demolition of the buildings, relying on the decision of this Court, printed at page 761 of the Decisions of 1856. "The present application by the plaintiffs refers only to demolition of the building. the "It appears that the dispossession of plaintiffs was effected, and the buildings constructed, on the following dates. A dwelling house on plot No. 1 in Bysakh 1253; a cow house on plot No. 2 on the 1st Assin 1256; and a doorhee' on plot No. 5 in Aughun 1260. "Once before plaintiffs had instituted, in 1256, a suit with respect to plot No. 1, but were nonsuited. The present action was instituted on the 25th July 1855 or 1262 B. S. "The ground of special appeal is that the plaintiffs, though co-sharers in the land, are not bound by the acts of Nyamutoollah who ousted them, and cannot be required to suffer the continuance of the buildings which he erected. On the other hand, it is con in certain land. It was found as a fact by the courts petition or motion had below that no been made in any local court with a view to prevent the erection of buildings on the land. suit for demoli tion of buildbrought when the infringement of right by their construction is ings should be first threatened or commenced; and if a party suffers the erection, his consent is to be implied, and he must fall back on an action for damages. Costs on the parties respectively. tended for Nyamutoollah, respondent, that in conformity with the principle involved in the decision above quoted, plaintiffs, petitioners, are not competent to throw down buildings, to the erection of which they took no objection, and must be held to have assented. "We admit the special appeal to try whether the order of the principal sudder ameen, prohibiting the demolition of the buildings, should be affirmed." JUDGMENT. In this case, it is necessary to premise that the certificate requires correction in some particulars. For instance, the certificate states that "the principal sudder ameen has affirmed the order of the first court as to the lands;" but on a reference to the record, we find that the order of the principal sudder ameen is that the decision of the moonsiff, ordering possession and the demolition of the buildings, be cancelled, and the claim of the plaintiffs be dismissed, with costs. It is true that both the lower courts find as a fact that the plaintiffs had a rightful title to a joint share of the lands upon which the buildings were erected. The principal sudder ameen, however, distinctly held that the plaintiffs' proper course would be to sue for damages, to the extent that he might have been injured by the erection of buildings on the lands in which, both courts had thus held, plaintiffs had a rightful title to a joint share. It has been argued that the principal sudder ameen has wrongly relied upon the Sudder Dewanny Adawlut's decision in Jankee Singh's case, page 761, 28th August 1856. There the receiver's agent had remonstrated against the buildings beingcarried on by the opposite party, and the other plaintiff was a minor. We observe, however, that the principal sudder ameen has found as a fact that no petition or motion was made in any local court, with a view to prevent the erection of the buildings, and no error in this finding has been shewn to us. We further observe that the plots now in suit are 1, 2, 5, and that plaintiffs instituted a suit in regard to No. 1 in 1256 B. S., which was nonsuited, but did not prosecute the matter further till they did so by this action in 1262 B. S. Thus we are of opinion that this case comes properly within the ruling in Jankee Singh's case above cited, viz. that a suit like this should be brought when the infringement of the right is first threatened or commenced, and that if a party stands by and suffers the erection to proceed to a considerable extent, his consent will be implied, and he will have to fall back on an action for damages. We therefore see no reason to interfere with the decision of the principal sudder ameen on the general merits. But we think the circumstances of the case are such, that it would be proper that the costs of the parties in each court should be borne by them respectively, because the plaintiffs should have at once sued to have the erection of the buildings prohibited before they were completed, and because the opposite party have been erecting buildings on land, in which plaintiffs have been declared to have a joint proprietary title. THE 21ST SEPTEMBER 1858. PRESENT: H. T. RAIKES, Esq., Judge. C. B. TREVOR, Esq., H. V. BAYLEY, Esq; } Officiating Judges. CASE NO. 83 OF 1858. Special Appeal from the decision of Mirza Mahomed Sadiq Khan, Principal Sudder Ameen of Sarun, dated 27th June 1857, reversing a decree of Sheikh Alee Azeem Khan, Sudder Ameen of that district, dated 27th December 1856. BRIJONUNDUN DASS, (PLAINTIFF,) APPELLANT, versus BABOO KISHENDEONARAIN SINGH AND OTHERS, Vakeels of Appellant- Moonshee Ameer Alee and Baboo Vakeel of Respondents, Sheosuhae and Ramdhunee-Moulvee THIS case was admitted to special appeal on the 2nd February 1858, under the following certificate recorded by Messrs. A. Sconce and J. S. Torrens. Held that the transaction devolved on the plaint, though, con tained in three "These petitioners were plaintiffs in this suit. It appears that, on the 1st Assin 1255, Baboos Kishendeonarain and Bishendeo- separate deeds narain, by bond, borrowed rupees 8,600 from Brijonundun Dass; that on the 13th Assin following they executed a lease of certain villages to Beharee Lal, gomashta of Brijonundun Dass for the is in reality transaction. Defendant on one continued one date borrowed from plaintiff a sum of money, 13 days afterwards he executed a lease of certain villages to plaintiff in the name of his gomashta for three years certain, but also to run until the debt is paid, and by a deed of assignment they assign certain villages leased at a yearly rent of rupees 608-11 and empowered the lessees to pay to plaintiff annually rupees 584, as interest on the sum due to him. Plaintiff being dispossessed by the purchaser of the debt bought in the property leased to them at a sale in execution now sues for possession under the terms of the transaction above set forth making the heir of his gomashta in whose name the lease was to be a defendant. Held that the claim is in every way a legitimate one and all the proper parties are before the court, the case is therefore remanded for re-investigation, the transaction is to be interpreted in the mode suggested. |