THE 28TH SEPTEMBER 1858. PRESENT: Application for Review of Judgment passed by Messrs. H T. Raikes, B. J. Colvin, and J. H. Patton, in case No. 573 of 1856, decided on 31st May 1858. BIPPROCHUNDER CHUCKERBUTTEE AND OTHERS, (RESPONDENTS,) PETITIONERS, versus KASHEENATH PAUL, (APPELLANT,) OPPOSITE PARTY. Vakeel of the Opposite Party-Baboo Shumbhoonath Pundit. OBJECTION has been taken to our judgment in this case upon several grounds, viz. that we have thrown the burden of proof of payment of the balance of purchase money upon petitioners, whereas it should have been thrown upon the plaintiff to establish the fact of non-payment alleged by him, and that all the presumptions arising out of the circumstances of the case are in favour of petitioners, whereas they have been held to be on the side of plaintiff. Reference has been made to the plaint to shew that it contains a distinct admission of delivery of the receipt for rupees 50,000 to petitioners, and that therefore the payment of that sum of money must be presumed until the contrary be shewn by plaintiff; and circumstances have been pointed to as telling against the truth of plaintiff's claim, as for instance the delay of 11 years and 359 days in bringing the suit, the claim being only on the part of one shareholder, and the petitioners having received possession of the property sold. It is also stated that the receipt, upon the non-production of which by the petitioners the Court commented in their judgment, is now forthcoming and in their hands. The document has not of course been now taken, but it is argued that petitioners stand on as high ground as if it had been filed in the lower court, on account of the admission in the plaint of its execution and delivery to petitioners. We observe, however, that the delivery of the receipt is not stated in the plaint to have been in acknowledgment of the payment of the money, but to have been given in furtherance of the object of registering the deed of sale; and although the receipt appears to have been registered with the bill of sale on the 5th May 1843, it is seen that the power of attorney contained no authority to register the receipt, but only the bill of sale. As then plaintiff's account was a probable one as to the object of delivery of the receipt, it was necessary to ascertain whether such delivery was to facilitate registration or in full discharge of the debt; and to ascertain this satisfactorily, we considered it necessary to examine the evidence of both parties, the result of which was that we held the evidence of petitioners not sufficiently trustworthy to raise any presumption in favour of their statement. Therefore, although the non-production of the receipt may have been less material than the Court have noted in their judgment, still there is nothing in the arguments submitted to us in support of the present application to convince us that the receipt was delivered as an acknowledgment of payment. We also observe that the evidence to the complete payment of the money was voluntarily placed on record by petitioners, as a material point of their case, being in support of the allegation that the receipt was made over to them in recognition of full payment, and not for the purpose of registry alone. The Court were therefore clearly bound to weigh and consider it, as the lower court had done, although they came to a different conclusion upon it. Application rejected, with costs. THE 28TH SEPTEMBER 1858. PRESENT: H. T. RAIKES, ESQ., Judges. PETITION No. 938 oF 1858. A. obtained under an Act IN the matter of the petition of Raja Nundlall Roy, filed in possession of this Court on the 19th June 1858, praying for the admission of lands a special appeal from the decision of Mr. A. Davidson, principal IV. decree. B. sudder ameen of Midnapoor, dated 19th March 1858, reversing that of Moulvee Drasutoollah, moonsiff of Nugwa, dated 26th December 1856, in the case of Raja Nundlal Roy, plaintiff, versus Narain Pattur, defendant. Vakeel of Petitioner-Mr. R. T. Allan. obtained rever al of it in against whose judgment A. preferred appeal. During pendency of this appeal, B. cannot stay civil court, Vakeel of the Opposite Party-Baboo Ashootosh Chatterjee. It is hereby certified that the said application is granted on the the Act IV. following grounds. decree, or restrain A's rights but by execu Petitioner in this case states that, although he has been recognis- in possession, ed as proprietor in possession, the court below has held him in- tion of the capable of levying rent from the tenants of the estate, because another civil decree. As above. party claiming the property has obtained a decree in his favor, which, being disputed by petitioner, is now in appeal before the lower appellate court. Petitioner prays that the order depriving him of the right to collect rents may be suspended by injunction until the appeal case is decided. Having heard this application in the presence of both parties, we find that petitioner's possessory right has been recognised by an award under Act IV. of 1840, and the respondent has brought an action to set aside that award. Respondent, having procured its reversal and a declaration establishing his right to the property, has prayed the lower court to prevent petitioner's enforcing decrees for rent against the tenants, until the case pending in appeal, adverted to in this certificate, has been disposed of; and the lower court has complied with the request. But it appears to us that the lower court has no authority to stay those decrees, which petitioner has the right to enforce as the party now in possession; and the only advantage respondent can take of his decree is to sue out execution in the usual form. The case is remanded, that the principal sudder ameen may pass an order conformably to the above. In the matter of the petition of Rajah Nundlal Roy, filed in this Court on the 19th June 1858, praying for the admission of a special appeal from the decision of Mr. A. Davidson, principal sudder ameen of Midnapore, dated 19th March 1858, reversing that of Moulvee Drasutoollah, moonsiff of Nugwa, dated 27th December 1856, in the case of Raja Nundlal Roy, plaintiff, versus Gobindpersad Chuckerbuttee, defendant. Vakeel of Petitioner-Mr. R. T. Allan. Vakeel of the Opposite Party-None. It is hereby certified that the said application is granted on the following grounds. The decision recorded in case No. 938, is also applicable to this. Special Appeal from the decision of Mr. G. C. Fletcher, Officiating GOUREECHURN AICH, (DEFENDANT,) APPELLANT, versus PARBUTTYCHURN AICH, AND AFTER HIS DEATH HIS WIFE Vakeel of Appellant-Baboo Kishensukha Mookerjee. THIS case was admitted to special appeal on the 8th August 1857, under the following certificate recorded by Messrs. H. T. Raikes and A Sconce. In a decree for enhanced rent, the judge's order, that defendant he engaged rate, was can "In this suit now brought under notice, Parbuttychurn Aich, would be professing to have acquired certain land from the zemindar by a ousted, unless potta of 25th Bysakh 1206 Mughee, sues the present petitioner within one Goureechurn and another defendant Shibchurn, for possession and month to pay wasilat of the land held by them. Plaintiff calls these two defend- at the higher ants jotedars. He says that, notwithstanding a notice served on celled as unthem, they did not in conformity with the notice enter into a settle- necessary. ment with him for their lands, and accordingly he seeks to oust them and to recover mesne profits of the land for the years 1206 to 1214 Mughee. "The judge has decreed to plaintiff possession of all the land claimed: and the ground of special appeal is, that the plaintiff by the form of his action, is not competent to sue to oust defendants. Plaintiff appears to have served notice on defendants, calling on them to pay rent at an enhanced rate; and it is argued that plaintiff's action to eject defendants will not lie. "We admit the special appeal to try that point. It seems to us that as plaintiff's suit is professedly grounded upon a notice of enhancement, his proper course was, in the first instance, to sue for arrears due at that rate, and not, after the lapse of eight years, without establishing the arrears asserted, to seek to eject the jotedars, defendants." N JUDGMENT. On referring to the judgment appealed against, we see that the order is not one to oust the petitioner unconditionally, but only in case of his not engaging, within one month from its date, to pay the enhanced jumina. But this was an unnecessary condition to insert in the order; for the decree would operate against the petitioner without an engagement on his part, so that rent could be annually demanded from him at the amount fixed by the decree, which would require to be paid as long as the petitioner retained possession of the land. We, therefore, so far modify the judge's order as to cancel that part of it, directing relinquishment of the land unless an engagement was entered into for the enhanced jumma within one month. Petitioner will get costs of this appeal. Special Appeal from the decision of Mr. O. W. Malet, Judge of BENODERAM SEIN AND OTHERS, (PLAINTIFFS,) APPELLANTS, versus SHIBDYAL BHUTTACHARJ, (DEFENDANT,) RESPONDENT. THIS case was admitted to special appeal on the 15th January 1858, under the following certificate recorded by Messrs. A. Sconce and J. S. Torrens. "This suit was instituted by fourteen plaintiffs, these petitioners, to recover Rs. 300 stated to be due under a bond. Process was taken out in the first court to bring forward two of these plaintiffs, Benoderam and Brijmohun, as witnesses on the part of defendants; and as these two persons did not appear to be examined, the moonsiff dismissed the suit; and on appeal, acting, as he conceived, under the provisions of Section XXIV. Act XIX. of 1853, the judge affirmed the moonsiff's order. |