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of one assessor can be deemed sufficient to fix the rupees 11,000 as the right sum in lieu of 19,500 for which the embezzlement was charged; or that it necessarily must be the same sum as is now

in suit.

The opinion of the session judge does not lead to the conclusive identification of the sum in suit, as being the rupees 11,000 referred to in the case of embezzlement for which Sibdyal was tried.

The sum is there stated at 19,500, i. e. 8,500 from Beetul Dass and 11,000 from Gopee Shah, equal to 19,500; and it is added that the gomashta's evidence made the amount due to Gopee Shah rupees 13,620-13-3, not rupees 11,000.

Under all the circumstances, we do not think any thing has been shewn to justify our rejecting the evidence to the perwannah, on the basis of which we came to the decision, a review of which has been sought.

We therefore reject the application, with costs.

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Review ad

mitted to try

a point of law and whe

ther the Court's

finding on the point of posSession is based on legitimate evidence.

H. V. BAYLEY, Esq.,,

CASE NO. 87 OF 1858.

Application for Review of Judgment passed by Messrs. C. B. Trevor, George Loch, and H. V. Bayley, in case No. 12+ of 1855, decided on the 26th January 1858.

RUSSO MUNJOORY AND OTHERS, (RESPONDENTS,)

PETITIONERS,

versus

SOODAKANT KUBERAJ, (APPELLANT,) OPPOSITE PARTY.
Vakeel of Petitioners-Baboo Ramapersad Roy.

Vakeel of the Opposite Party-None.

AN application for review of the judgment of this Court of 26th January 1858, (see printed Decisions of that month, page 70,) has been made on a point of law and on a point of fact. Mr. Ritchie for the petitioners urges that the plaintiffs claim the property as the next male heirs of Juggudanund Tagore, relying on the family custom that, on the death of the widow, the property reverts to the heirs of the male line to the exclusion of the female line. Plaintiffs are the nearest male heirs, and would benefit by the usual law of inheritance, provided the property were not otherwise alienated.

Defendants claimed under a gift, though descendants through a daughter. The Court have held that limitation commenced to run from the date of the gift, and not from the date of the widow's death, when the right of the reversioners would in ordinary cases. arise. But according to the wording and spirit of the Regulations, plaintiffs' claim could not commence till their right of action accrued, and that would not accrue till the death of the widow Dasoomunee. During her life time plaintiff's could not interfere, whatever she chose to do with the property. She is a tenant for life, but a tenant for life may alienate, and such alienation will stand good during her life time, and a residuary cannot come into court and demand in such cases a declaration of his right. The decision of the Court would bar the right of the plaintiffs to sue at all, for the period for bringing the action would have expired before they could have acquired a right to sue. The defendants claim to hold the property under an alleged gift made by Dasoomunee, under authority from her husband; and it is held by the Court that their adverse possession, of which there was sufficient publicity in the proceedings of the collector's office, must be considered to commence from the date of gift, and that the reversioners must have been aware of it. They might have been aware of the gift, but not of the authority under which it was made. No objection could be taken to Dasoomunee's giving possession to ber grandson, such having effect only during her life time; but to make out an adverse title it must be shewn not only that the gift was made under authority but that plaintiffs were aware of it. It may be said that an action to establish plaintiffs' declaratory right could have been instituted during the life time of the widow by the residuaries, within twelve years from the date of gift; but even a decree declaratory of the rights of the then residuaries would not have availed the plaintiffs, who were not in existence at the time, and who do not claim to succeed as representatives of those residuaries, but as heirs of Juggadanund Tagore, and whose right to possession of the property could only commence from the death of his widow. Even supposing the reversioners of the time when the gift was made were aware of the authority, yet those of the present time, who were not then in existence, cannot be supposed to have that knowledge, and they can only claim from the time of the widow's death. Any other course would leave great power in the widow's hands, which she might take advantage of to the detriment of the reversioners. Adverse possession was only disclosed in the suit decided in 1840, and the plaintiffs would be in time within twelve years from that date. What has been found by the Court as regards the gift goes far to prove the merits of the case; but had the Court been trying the case on its merits, they surely would not have been satisfied with the proof that has been submitted, as to the authority under which the widow is alleged

to have acted. The insertion of the alleged grantee's name in the collector's books may have been done by collusion; and as long as the widow lived, if she were a consenting party, such entry could not be contested: but neither such entries nor the grantee's possession are proof of the widow's authority to grant; nor can they bar the right of the reversioners as heirs of Juggadanund Tagore to sue for the possession of the property. The counsel quoted the decision of this Court of 5th April 1849, page 102, Kutteanee Dassee versus Nundkishore Ghose.

Baboo Ramapersad Roy on the same side urges; first, that the decision of the Court of which a review is now sought is incomplete, as the Court have not considered two material documents acted upon by the principal sudder ameen and brought to the notice of the Court: secondly, that the Court's judgment finds the defendant or his ancestors to have been publicly recorded in the collectorate papers of 1171 and 1194, as in possession under a hibbanama by the wife of Juggadanund Tagore; and from the decision it appears that the Court was led to believe that the principal sudder ameen had sent for and examined the original documents, but the principal sudder ameen makes no allusion to such documents, and further, the defendants did not file any records from the 'collector's office, which they were bound to do, and any reference to those documents in the decision of 1840 can be no evidence against the plaintiffs, who were no parties to that suit and are not bound by it.

JUDGMENT.

We admit this review to try the point of law whether the plaintiffs, (who were not born when the alleged gift was made,) as heirs of Juggadanund Tagore and not as heirs of the original reversioners, are in time within twelve years after the death of the widow of Juggadanund, or whether their claim is barred by limitation, and secondly to try whether the Court's finding on the point of possession is or is not based on that which is not legitimate evidence.

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Application for Review of Judgment passed by Messrs. C. B. Trevor,
G. Loch, and H. V. Bayley, in case No. 295 of 1854, decided
on the 2nd February 1858.

MOONSHEE LATAFUT HOSSEIN AND OTHERS, (RESPOND-
ENTS,) PETITIONERS,

versus

MESSRS. FRITH AND SANDES, (APPELLANTS,) OPPOSITE
PARTY.

Vakeels of Petitioners-The Advocate General and Moonshee
Ameer Alee.

Vakeels of the Opposite Party-Baboos Ramapersad Roy and
Shumbhoonath Pundit and Mr. R. T. Allan.

A PETITION for review of our judgment of 2nd February 1858, (see printed Decisions of that month, page 160,) has been presented by the respondents; and it is contended:

Application for review of

judgment rejected, as the drawn from inference, the circumstances of the petitioners of and consenting to the acts of trespass more committed by their servants,

case, that the

First. That the respondents, zemindars, could not be held responsible as there was no proof of their consent; secondly, that in this case exemplary damages could not be given, for the plaintiffs' claim was only for pecuniary damages. On the first point it is urged, that there is no evidence either express or implied to shew that the zemindars were a consenting party and authorised the acts complained of. A master cannot be made liable in a civil than in a criminal case for the acts of his servants. To implicate the master, it must be shewn that the servant was acting within the scope of his duty.

Secondly. There was no knowledge on the part of the zemindars. Had they been living on the spot, their knowledge and consent might be inferred; but their residence is about one hundred miles distant, and it is not shewn that the plaintiffs ever wrote to them complaining of the acts of their servants. Had they done so and they continued to entertain those servants, it might be fairly inferred that they were a consenting party to their misconduct; but no proof of such knowledge has been adduced.

Thirdly. The respondents derived no benefit from the acts of their servants. Had it been shewn that they had taken any benefit,

were cognizant

was held to he just and legal,

they could not have raised any objection to the decision of the Court.

Fourthly. The servants were not acting in their own proper duty, but acted of their own authority; and the conviction and punishment of some of them for assault cannot be used as evidence against the zemindars.

On the second point, the plaintiffs, it must be observed, sought compensation for their loss and not damages, as a punishment to the zemindars: they did not seek to make them wrong doers, and punish them as such. Exemplary damages should only be awarded to restrain wilful trespass, but not where the trespass is ordinary; and in the present case particularly, where the zemindars were otherwise engaged in carrying on their claim to the lands legally, there were no sufficient grounds for awarding exemplary damages. With regard to the Court's orders awarding interest from date of suit, when the damages are penal, interest should be awarded only from date of decision; and such has been the previous practice of this Court. See Marquis's case of 27th September 1853, page 886 of Sudder Reports.

JUDGMENT.

It is admitted that there is no direct evidence to prove that the trespasses complained of, were committed with the consent or knowledge of the zemindars, respondents: there is however on the record sufficient evidence from which, in the opinion of the Court, their consent and knowledge may be fairly inferred. We find that in 1845 and 1846, disputes arose regarding certain lands attached to the Gholdar factory, the possession of which was awarded to the plaintiffs in two separate suits under Act IV. of 1840. In both of these cases the respondents were parties, and to reverse these decisions and to recover possession of the lands the respondents instituted suits in the civil court, which were ultimately decided against them by the Sudder Dewanny Adawlut, on 31st May 1852 and 15th February 1853. During the interval between the decision of the cases under Act IV. and of the civil suits, the acts of trespass complained of occurred, viz. in the years 1253, 1254, and 1257 B. S., corresponding with 1846, 1847, and 1850. As the respondents were parties to the suits under Act IV., they cannot plead ignorance of the existence of a dispute for these lands, which was only terminated by the decisions of the Sudder Court in 1852 and 1853. Under the decisions passed in the Act IV. suits, the plaintiffs were kept in possession by the order of a competent court; and till such order were reversed by regular suit, the respondents had no right to interfere with the plaintiffs' enjoyment of those lands.

We find however that, almost immediately after these decisions were pronounced, the respondents' servants commenced a series of

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