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cluded in a resumed tenure, shall have continued in the possession and management of the lands after the creation of the tenure, paying the Government share of their produce to the lakhirajdar, the settlement shall be made with such proprietor or malik under the general rules contained in the Regulations, and it shall be lawful for the Governor of the presidency to grant to the lakhirajdar, if in destitute circumstances, such pension for life as may be deemed proper."

The judge found the facts to be as contemplated in the rule just cited, and he declared plaintiffs, the owners, under that rule and the regulation in force, to be entitled to settlement, a judgment considered by us to be, on this finding of the facts with which we cannot interfere, both right and proper.

A petition, however, dated 20th September 1852, is produced, which, it is urged by special appellants, is an acknowledgment by plaintiffs that they held subordinately to them as jagheerdars; that on this acknowledgment they are in no way entitled to a decree for settlement, in preference to the parties under which they admit that they have all along held.

It appears that, when the principal sudder ameen drew up the issues in the case, the sixth issue was to the following effect: whether or not the suit is barred because in petition of plaint possession is sought by right of a milkeut and mookururee istemraree, whereas in the replication no claim is urged for the confirmation of the mookururee title.

With a view, it would seem, of remedying an impression considered erroneous by the plaintiffs, they very irregularly presented to the principal sudder ameen, and he in an equally irregular manner accepted, a petition, dated 20th September 1852, in which they enter upon a discussion on every issue laid down and with a view of shewing that they stood simply on their proprietary rights, and had no intention as against Government of considering the mookururee portion of their title, they urge as follows:

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"In reference to the 6th issue, the petitioners beg to urge that their complaint was not at all for the confirmation of their mookururee title. The insertion of the words 'possession by right of mookururee istem raree,' was made by reason of the fact of their possession as mookururee holders from the ancestor of the defendants. Hence the claim for possession and for the substitution of their names as proprietors in the collector's books, as well as for the settlement of the villages in suit by right of their mookururee istemraree title, was urged in the plaint. The insertion was not made with the view to have the mookururee istemraree rights granted by the former authorities confirmed. Let the entire plaint be taken into consideration; still it will not appear that the petitioners sought to have their mookururee istemraree right confirmed. The circum

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stances relative to the previous possession of the petitioners, which was continuously held, in accordance with the deed of mookururee istemraree executed by the ancestor of the defendants, are insertedi n the plaint only inasmuch as for that reason the defendants had no right whatever to obtain possession, being only entitled to receive the mookururee jumma: hence also the petitioners who were in possession were by all means entitled to the settlement, and not the defendants who never held possession. Under such circumstances the petition of plaint is by no means opposed to the replication."

This petition is not denied by the vakeel for plaintiffs, Moulvee Murhummut Hossein. He only attempts to explain away its terms. As given however above, it distinctly disavows all intention of contending for the confirmation of the istemraree mookururee title acquired by petitioners from the former authorities, and equally distinctly states that plaintiffs held a mookururee istemraree under a deed executed by the ancestor of the defendants. In the first statement, there is no disagreement with the pleadings in the case; but in the last is stated as a fact that which is opposed to the pleadings filed by the plaintiffs. Now the question before us is, should a petition such as this, presented after the drawing up of the issues in the case, have any weight given to it or not by this Court in special appeal? We are of opinion, notwithstanding its apparent inconsistency with the pleadings, that it should not. It was irregular for the principal sudder ameen to accept the petition, or rather the criticism upon his proceedings under Section X. Regulation XXVI. of 1814, and the issues in the case were not and could not be affected by it; added to which the main object for which the petition was presented is clear, which was to show they did not contend for the confirmation of their mookururee granted with the milkeut by the former authorities, but merely upon the milkeut or right of ownership. Under these circumstances, were the inconsistencies even greater than they are, we should not consent on the ground of it alone, contained in an informal petition, to disturb the finding of facts at which the judge has arrived on issues resulting from the pleadings in the case, which we must presume were drawn up with deliberation, and which intended to represent the real claim as advanced by the plaintiffs in the suit.

Under this view of the whole subject, we see no reason for disturbing the decision of the court below, but dismiss the special appeal, with costs.

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Special Appeal from the decision of Mr. E. Lautour, Judge of 24-
Pergunnahs, dated 30th June 1857, reversing a decree of Baboo
Nilmonee Mitter, Moonsiff of Sulkea, dated 17th November 1856.
ISHURCHUNDER SHAHA AND OTHERS, (PLAINTIFFS,)
APPELLANTS,

versus

GYARAM HALDAR AND Others, (DefenDANTS,)
RESPONDENTS.

Vakeel of Appellants-Moulvee Murhummut Hossein.
Vakeels of Respondent Gyaram Haldar-Baboos Shumbhoonath
Pundit and Baneymadhub Banerjee.

THIS case was admitted to special appeal on the 7th January 1858, under the following certificate recorded by Messrs. B. J. Colvin and A. Sconce.

"Petitioners sued to obtain possession of 15 cottas of land, with wasilat, which the defendants professed to hold under a hook umnama given by the naib of petitioners, whose residence being at Furreedpore, the judge held that they must be bound by the act of their local manager; and therefore, as the naib had received rent for petitioners from defendants, the judge held that they were bound to

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Defendants plead a right to possession of a portion of the land sued for by purchase from a ryot, and a right to 12 cottas under an hookumnama given to them by plaintiffs' agent and granting them possession on payment of a yearly rent of rupees 6.

The lower court held that the excess land, which defendants claim to hold under a hookumuama from the gomashita, was held without any title, inasmuch as the gomashta in granting it had exceeded his authority.

The judge on appeal reversed the order of the court below.

Held in special appeal that the hookumnama, without the potta, was, on the supposition that the gomashta had authority, sufficient to create a tenancy from year to year, and to perfect plaintiffs' title, which would only be further evidenced by a subsequent potta. Held also generally that the local agents of absentee proprietors must be considered to be general agents for their employers, and that there is a delegation to them to do all acts connected with the management of the property of which they are the agents; that consequently a principal is bound by the acts of his agent done within the scope of that general authority; and if that general authority be limited by private instructions and directions prohibiting the exercise of it under particular circumstances, such instruc tions, if unknown to the party dealing with the agent, cannot defeat his acts and transactions done under the general authority vested in him.

Held that in the present case the creation of defendants' tenancy was within the scope of the general authority of the local agent, which was not in any way limited within the knowledge of the defendants, and that it consequently must be upheld. Special appeal dismissed, with costs.

respect defendants' possession; and accordingly he dismissed the suit, in reversal of the judgment of the lower court. The judge further remarked, that if plaintiffs wish to determine defendants' tenancy, they must take the usual steps in ejectment.

"It is urged in special appeal that the act of the agent is not binding upon plaintiffs, as he had no power to create such a tenancy as defendants assert; and besides, there was no potta but only a hookumnama which provided for a potta afterwards.

"It seems to us that the present suit is for the very purpose for which the judge records a suit may be brought, viz. for ejectment. We therefore admit the appeal, to try whether the terms of the hookumnama and the authority of the naib are such as to guarantee permanent possession of the land to defendants."

JUDGMENT.

This was a suit brought by the plaintiffs as proprietors, for possession of certain lands, with mesne profits, held by the defendants without authority, and therefore as trespassers, over and above that to which as tenants they are entitled. Defendants plead a right to possession of a portion of land belonging to plaintiffs by pur chase from a ryot, by name Madhubchunder, and a right to possession of the 12 cottas sued for, under an hookumnama granted to them by plaintiffs' local agent or gomashta. The hook umnama grants them possession of the land at the annual rent of rupees 6, and adds that a lease will be given hereafter.

The lower court finds that the excess land, which defendants claim to hold under a hookumnama from the gomashta, was held without any title, inasmuch as in granting it the gomashta had exceeded his authority: it therefore gave plaintiff a decree, but not mesne profits. On appeal, the judge reversed the same, being of opinion that the local agents of non-resident zemindars, such as are the plaintiffs in this case," are within their power when, in the performance of their express duties, they make those ordinary arrangements for the zemindars, which are most advantageous to their interests;" that consequently the agent of the zemindars was quite warranted in granting the hookumnama to defendants, and defendants, in holding possession and paying rent under that document, were no trespassers.

Plaintiffs now appeal specially, urging that local agents, such as gomashtas, have no power to create tenancies like that set up by defendants, and consequently the act of the agent was not binding on them, and that defendants held under no potta but only under an hookumnama, which was insufficient without the potta contemplated in it. We are clearly of opinion that the fact of defendants' not having received a potta is quite immaterial. If the gomashta had the power to create the tenancy at all, the title of defendants

as tenants from year to year was perfected by the hookumnama, and a subsequent potta would be evidence of that title and nothing

more.

On the point as to whether the gomashta has the power to create tenancy or not, we hold generally that the local agents of absentee proprietors must be considered to be general agents for their employers, and that there is a delegation to them to do all acts connected with the management of the property of which they are the agents; that consequently a principal is bound by the acts of his agent done within the scope of that general authority; and even if that general authority be limited by private instructions and directions prohibiting the exercise of it under particular circumstances, still such instructions, if unknown to the party dealing with the agent, cannot defeat his acts and transactions done under the general authority vested in him.

Looking then at the matter before us in this light, we are of opinion that the creation of a tenancy like that made in favor of defendants was clearly within the scope of the general authority of the local agent, which in the present instance was no way however limited within the knowledge of the defendants, and as such must be upheld. Had we considered the gomashta not a general but a special agent, we should have had to enquire whether be had exceeded the special and limited authority conferred on him; for in case he had, his principal would not be bound by his acts. We dismiss the special appeal, with costs.

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