tiffs' potta, and that the burden of proof was upon the defendants burden of proof to prove that the lands in litigation did belong to their estate. was on the plaintiffs who, possession. We see no reason to review our judgment, for no question was on the plea of raised as to the genuineness of the plaintiffs' potta. Plaintiffs stated that dispossessed, they had on a certain date been ousted by the defendants from sued to recover certain lands settled with them. Defendants claimed the lands as The judgment part of their own estate. The lower courts found that the plaintiffs of the Court had not proved their charge of forcible dispossession, nor that the was based not potta under which they claimed covered the lands in litigation, and tion affecting dismissed the suit. The burden of proof was upon the plaintiffs and the plaintiffs' not upon the defendants. We reject the petition for review, with was not in dis costs. on any ques potta, for that pute, but on their inability, to prove dispossession, a fact they were bound to substantiate. Regular Appeal from the decision of Mr. W. Tayler, Judge of TRIBHOOBUN SINGH AND OTHERS, (DEfendants,) APPELLANTS, versus BABOO KOOER SINGH, NOW GOVERNMENT, (PLAINTIFF,) SPONDENTS. Vakeels of Appellants-Baboo Shumbhoonath Pundit and Moonshee Vakeel on behalf of Government-Baboo Ramapersad Roy. When the one of three On 24th Sawun 1239 F. S., corresponding with 5th August defendants had 1852, the plaintiff gave a lease of fourteen villages to Firman Roy, jointly purRamshurun Roy, and Ruttoo Roy, at a jumma of rupees 5,400. rights and The defendants executed a joint kubooleut, and by the terms of that interests of kubooleut Firman Roy was held solely liable for the rent of two farmers sold villages out of the fourteen, viz. Dhoobadara and Puradh, assessed in execution at rupees 400, and all three lessees were jointly liable for the rent they were held assessed on the other twelve villages, amounting to rupees 5,000, to be jointly and severally in the following proportions: Firman Roy 6 annas share, and Ram- liable for the shurun and Ruttoo Roy to 5 annas each. The rent was regularly rent due by of a decree, the farmers; and as the done nothing of non posses sion, arising from their disputes with other parties, was held to be no sufficient ground for exonerating them from the zemindar's paid to 1255. On 25th May 1846, corresponding with 1253 F. S., zemindar had the rights and interests of Firman Roy in five villages, viz. Goorto oppose their moree, Nowan, Puradh, Dhoobadara, and Inderpore alias Dotowlee, taking posses were sold in execution of a decree of Aman Khan, and the first sion, the plea four villages were purchased by Tribhoobun Singh and Bissessur Roy, and the last by Booky Rowuth, now represented by Mukkun Rowuth. On the 4th April 1848, corresponding with 1255 F. S., a further sale of the rights and interests of Firman Roy, in the whole of the fourteen villages, in execution of a decree of Mohabeer Pershad, took place. Two villages, Koosmee and Joorawun, were purchased by Joorawun Singh; four by Wooma Dutt Misser, viz. Puradh, Nowan, Joysook dara, and Kumadeeh; eight by Khyalee Ram, viz. Goormoree, Sukrora, Dhoobadara, Adawadeeha, Ruttee alias Hurpore, Inderpore alias Dotowlee, Nuruttunpore alias Prahlad, and Nujmah. Objections to this sale were filed by the former auction purchasers, Tribhoobun Singh and others, and, on the 21st July 1849, the second sale of the five villages purchased in May 1846 by Tribhoobun Singh and others, was reversed, and the sale of the other nine villages confirmed. Plaintiff now claims rent from 1256 to 1260 F. S. on the 6 annas share in twelve villages leased to Firman Roy, and sued to recover the amount, viz. rupees 4,274-12, principal and interest, from the auction purchasers, jointly and severally, and has obtained a decree in the lower court. claim for rent. An appeal has been preferred from the decision of the lower court by the defendants," Tribhoobun Singh, Bissessur Roy, and others, purchasers of the right of Firman Roy in the three villages of Goormoree, Nowan, and Inderpore alias Dotowlee. It is urged that though plaintiff brought a suit against the auction purchasers jointly, the judge ought, as prescribed by Construction No. 849, to have determined the liability of each defendant; that as the sales were held on different dates, subsequent purchasers cannot be held jointly liable with others for rent previous to their purchase; and that, as defendants have purchased separate villages, it is unjust to make them responsible for the rent due upon villages other than their own. For instance, Tribhoobun Singh and Bissessur Roy purchased the rights and interests of Firman Roy in four villages, but the decision of the lower court makes them liable for the rent of the twelve villages. It is specially urged on the part of these appellants, that as they did not obtain possession till 1st Poos 1257 F. S., corresponding with 1st December 1849, as shown by the proceedings of the civil court filed with the record, the plaintiff's demand for rent from them for the years 1256 and 1257 was illegal. And it is further urged on their part and on the part of Kishendyal Singh, guardian of Hurruk Narain, son of Goonee Roy, who purchased from Bissessur Roy, and has, by supplementary plaint, been made a party to the suit, that it was unjust to make them jointly and severally liable for the whole claim, as the interest of the vendor ceased, and that of the vendee only accrued, from the date of purchase. In reply it is urged that it was impossible either for the judge or plaintiff to determine the liability of each auction purchaser, for the twelve villages have been assessed at a total jumma of rupees 5,000, but the jumma of each village has not been separately fixed.. The rights and interests of Firman Roy in these villages, viz. 6 annas share, but without any specification of jumma, were sold in execution of decree; and if the defendants chose to take the risk of purchasing his rights in those villages, they, as representatives of the lessee, must be held jointly and severally liable for the rent he had agreed to pay. For the court to determine the liability of each defendant, it would be necessary that the villages should each be separately assessed, but this could not be done without the consent of the zemindar, plaintiff. The plaintiff claims the rent to which he is entitled. The defendants have publicly taken upon themselves the liabilities of the original lessee, and therefore plaintiff sues them for the rent. Their respective shares and liabilities must be settled by the defendants among themselves. As regards Goonee Roy's purchase from Bissessur Roy, plaintiff's rights are not affected thereby. If Goonee wished to be recognised in the room of Bissessur, he should have applied to have had his name registered in the zemindaree serishtah; and even then it remained at the option of the zemindar to admit him as a substitute. His private purchase does not absolve the auction purchasers from their obligation to the zemindar; and though plaintiff, by a supplementary petition, made Goonee a defendant, it was done merely on the objection advanced by the defendants and to avoid the possibility of a nonsuit for not bringing all the proper parties before the court, thereby rendering himself liable to the payment of Goonee's costs, should he be released from the claim. The respective liabilities of the vendor and vendee must be determined between themselves. As regards the objection of non-possession, urged specially by Tribhoobun Singh and Bissessur Roy, it is to be observed that plaintiff is not responsible for that. The sale was not caused by him, nor was the delay in giving possession, if any occurred, occasioned by him. If the auction purchasers contend among themselves, the zemindar must not suffer. He is entitled to his rent, and had a right to demand it from those who took upon themselves the responsibilities of the original lessee. JUDGMENT. The defendants, having purchased the rights and interests of Firman Roy, are, as his representatives, liable jointly and severally for his share of the rent due to the zemiadar. The appellants are the parties who purchased in 1253 F. S., corresponding with 1846; and whatever may have been their disputes with other parties and the difficulty they experienced in obtaining possession, yet, as the plaintiff put no obstruction in their way, he, as zemindar, is entitled to his rent from them and the auction purchasers of 1255; and the private sale of his interest by Bissessur Roy to Goonee Roy will not relieve the former of his responsibility, as his sale has not been recognised by the zemindar, and he remains to the present time the ostensible purchaser, and it is admitted that it cannot be shown what share was purchased by Goonee Roy. The vendee, Goonee Roy, is, however, liable only from the date of his purchase, but from that date he is, jointly and severally, liable for the whole rent assessed on the 6 annas share of Firman Roy. With this modification, we confirm the orders of the lower court, and dismiss the appeal, with costs. Special ap peal dismissed, as the point taken did not arise, being attributable only to a mistranslation Special Appeal from the decision of Mr. H. M. Reid, Officiating Judge of East Burdwan, dated 4th May 1857, affirming a decree of Mr. H. S. Thompson, Principal Sudder Ameen of that district, dated 18th February 1856. KHATEMOONISSA (ONE OF THE DEFENDANTS,) APPELLANTS, versus SREENARAIN MITTER, AND OTHERS, (PLAINTIFFS,) Vakeel of Appellant-Moulvee Murhumut Hossein. THIS case was admitted to special appeal on the 24th March 1858, under the following certificate recorded by Messrs. B. J. Colvin and J. S. Torrens. "This appeal is on the part of the defendants connected with petition No. 1167, admitted this day. They have been partially charged of the English with their own costs, notwithstanding dismissal of the plaintiffs' suit judgment. against them. "We admit this petition for orders to be passed on it, with reference to the decision that may be come to on petition No. 1167." JUDGMENT. In this case, no order of this Court, upon the point referred, is called for. The objection taken by the special appellant appears to have arisen from the judge's English decree being erroneously translated. It appears from the English decision that the judge directed only one fee to be charged with respect to those defendants, who had entertained the same pleader, but the present special appellants had entertained a different pleader from their co-defend ants. We remit the case to the judge for correction. Costs of this appeal to be borne by the parties. See the case IN the matter of the petition of Bhyrubchunder Chuckerbuttee, cited. filed in this Court on the 7th April 1858, praying for the admission of a special appeal from the decision of Moulvee Itrut Hossein, principal sudder ameen of Rungpore, dated the 18th January 1858, affirming a decree of Baboo Kalee Dass Dutt, acting sudder moonsiff of that district, dated 19th August 1857, in the case of Doyamoyee Debea, plaintiff, versus Bhyrubchunder Chuckerbuttee, defendant. Vakeel of Petitioner-Baboo Onookoolchunder Mookerjea. It is hereby certified that the said application is granted on the following grounds. Petitioner shows that he filed his petition of appeal and the decision of the moonsiff on the opening of the judge's court, the period of appeal having expired when the court was closed, but, according to prevalent custom, filed grounds of appeal at a later date, and the judge struck off the case under the precedent of this Court of date 9th January 1858. On the principle adverted to in the Court's decision in a similar case, dated 9th instant, the respondent in this case being present, we remand the case, and direct the judge to entertain the appeal and decide it on its merits. P |