should not afterwards have refused to hear and try the appeal on its merits. Plaintiff sued defend. I admit the appeal to try the point as Nos. 2 and 3 of 1858 have been admitted." MR. A. SCONCE." I doubt if the ground asserted by the petitioners be a relief from the strict letter of the law." JUDGMENT. We remand this case for trial by the appellate court under the precedent of this Court of the 10th August last, in the case of Hubeeboonissa, appellant. The appellate court having, in the first instance, sanctioned the filing of the grounds of appeal as a separate pleading, should not afterwards have refused to hear and try the appeal on its merits. THE 20TH NOVEMBER 1858. H. T. RAIKES, Esq., Judge. C. B. TREVOR, ESQ., Officiating Judges. CASE NO. 27 OF 1858. Special Appeal from the decision of Baboo Oopendurchunder Nya- MANIKCHUNDER BHUTTACHARJ, versus UNUNTMOYEE DEBEA AND BRIJOSOONDREE DEBEA, (PLAINTIFFS,) RESPONDENTS. Vakeel of Appellants-Baboo Aushootosh Chatterjca. Vakeels of Respondents-Baboos Baneemadhub Banerjea and Bungsheebuddun Mitter. THIS case was admitted to special appeal on the 16th January ant, petitioner, 1858, under the following certificate recorded by Messrs. H. T. for the re gistration of his name as Raikes and B. J. Colvin. tenant of a jote in his zemindaree serishta, which jote plaintiff had purchased from the former jotedar. Defendant pleaded that, when the zemindaree was sold by auction and purchased by him in 1249, he renewed the lease of the former jotedar, on his lineal representative Denonath executing an agreement binding himself not to alienate the lands, and that in the face of the agreement the transfer by Denonath to plaintiff is invalid. Plaintiff, in his replication, denied the genuineness of the agreement alleged to have been executed by Denonath, then before the court. Held that, upon these pleadings, the genuineness of the agreement is the first point to be determined, as, if its genuineness be proved, its conditions are of themselves sufficient to nullify any transfer of the holding, on the part of Denonath or his representative, without the consent of the zemindar. As this point has not been enquired into, the case is remanded for investigation on the point. "Petitioner was sued by the plaintiff for registration, in his zemindaree serishta, of a jote which the plaintiff had purchased from the former jotedar. "Petitioner pleaded that he was not bound to recognise the transfer of a jote in his estate by the occupant to another party, for which his consent had not been obtained; and on this ground petitioner defended his refusal to register or to recognise plaintiff as a jotedar. "The first court, on the precedent of Prosonocoomar, appellant, of the 11th January 1855, dismissed the claim; but the lower appellate court has reversed that judgment, and, on the ground that the potta of the former jotedar had been recognised by the petitioner, as entitling the holder to pay a permanent rate of rent, decreed petitioner bound to register the transfer as prayed for. "The special appeal is against this decision; and we admit it to try whether the law or the custom of the country imposes on landlords any obligation to recognise and register, in their serishtas, transfers of this nature by their occupying tenantry." JUDGMENT. On referring to the record, we find there has been a defect in the investigation of this case by the court below, which has apparently produced a defect in the decision passed on it. The original holder of the jote procured from the then proprietor a potta, confirming him in possession of the lands as jotedar: and subsequently, when the zemindaree was sold by auction and purchased by the petitioner, he, in 1249, took an ikrar from Denonath, the lineal representative of the pottadar, under which Denonath bound himself, on consideration of a renewal of the potta, not to alienate the lands in any shape; and the execution of this ikrar by Denonath is a fact advanced by the petitioner in his answer to this suit, and the alleged ikrar is filed. It is on this agreement that petitioner specially relies as constituting a bar to the legality of the transfer by Denonath to the (plaintiff) respondent; and the first point for determination is, whether this deed is genuine or not, as the respondent denies the execution of it. Before then attempting to ascertain whether the tenure transferred to the respondent comes under the head of those exempted from the zemindar's interference, under Section XXVI. Act I. of 1845, (on which ground it appears the principal sudder ameen held this tenure to be transferable without permission of the zemindar,) the principal sudder ameen should have determined on the genuineness of the ikrar, for, if that be proved, the conditions therein recited are of themselves sufficient to nullify any transfer of the holding, on the part of Denonath or his representative, without the zemindar's consent. Held that in claims like the present, This case is therefore remanded for this purpose; and if the lower court should hold the ikrar not proved, then it will be necessary to decide whether, under the law or custom of the country, the jote is one of a transferable nature. THE 20TH NOVEMBER 1858. PRESENT: H. T. RAIKES, Esq., Judge. C. B. TREVOR, Esq., H. V. BAYLEY, Esq., Officiating Judges. Special Appeals from decisions of Baboo Kashishur Mitter, CASE NO. 202 OF 1858. MAHARAJA MAHTABCHUNDER, (PLAINTIFF,) APPEL LANT, MUNOOKOOMAREE BEEBEE AND OTHERS, (DEFENDANTS,) Vakeels of Appellant-Baboos Ramapersad Roy and Vakeels of Respondents-Baboo Shumbhoonath Pundit and CASE NO. 203 OF 1858. MAHARAJA MAHTABCHUNDER, (PLAINTIFF,) versus HEERALAL BABOO AND OTHERS, (DEFENDANTS,) Vakeels of Appellant-Baboos Ramapersad Roy and Vakeel of Respondents-Mr. R. T. Allan. THESE cases were admitted to special appeal on the 24th March 1858, under the following certificate recorded by Messrs. J. H. that is, for a Patton and A. Sconce. current rent the tenures limitations "Petitioner instituted this suit (case No. 202) to recover arrears of balance of rent due from a putnee talook for the second six months of 1249. unsatisfied It appears that the putneedar who executed the kubooleut was named by the sale of Sham Lal, and that, at the close of 1249, petitioner took the usual themselves, proceedings to bring the talook to sale under Regulation VIII. of the statute of 1819. Accordingly, the talook was sold on the 4th Jeyt 1250, and runs only from the present suit is laid to recover that portion of the arrear which the date of the sale proceeds did not cover. The suit was instituted on the sale, the date 20th Bysakh 1262, and both the heirs of the nominal talookdar, tenures were Sham Lal, and the heirs of one Choonee Lal, who, plaintiff asserts, insufficient to proved to be was the real putneedar, have been made defendants. on which the meet the de them, and became a per· "The lower courts have given judgment against the heirs of mands upon Sham Lal, but have released the heirs of Choonee Lal. The sale on which proceedings, which were held as against Sham Lal, having extended the balances to 4th Jeyt 1250, are taken to bring plaintiff's claim against his sonal debt of the individual heirs within time; but the principal sudder ameen considers that, as putneedars, as Choonee Lal was not a party to the sale made under Regulation regards parVIII. of 1819, the suit as laid against him or his heirs is barred. be severally "For special appellant it is urged that the sale itself, which was clothed with held on the 4th Jeyt 1250, must be taken to be the cause of action, the legal and from which the period of 12 years, both with respect to Choonee ownership in Lal and Sham Lal, should be reckoned; and we admit the special the properties. appeal to try that point. ties alleged to equitable Case remanded for with reference "The same order applies to the case No. 203. In this case the investigation sale under Regulation VIII. of 1819 was held on the 3rd Jeyt to the above 1250: the recorded talookdar was named Radhanath Bose; and the remarks. person sued as the real talookdar, but released by the lower courts, is named Heeralal." JUDGMENT. By the terms of Regulation VIII. of 1819, the tenures denominated putnee tenures are, in the first instance, made liable for the current arrears which may have accrued upon them; and antecedent balances, if the zemindar shall have omitted to avail himself of the process within his reach for having them satisfied at the time, will, under Clause 8, Section XVII. of that law, have become in fact mere personal debts of the individual talookdar, and be recoverable in the same way as other debts, by a regular suit in the court. Reasoning then from analogy, we think that balances of current rent, which are found to remain due, and to be uncovered by the sale of the tenure which the zemindar has, under the strict terms of the Jaw, enforced, become personal debts only from the date of such sale. In this case there is no omission on the part of the zemindar to avail himself of the law, making the tenure in the first instance liable for its arrears; and consequently, until the tenure has been proved to be insufficient to meet the demand upon it, no personal debt against the individual putneedar arises. In the suits before us it is alleged by the plaintiff, zemindar, that the ostensible and registered putneedars have only the legal titles and that the equitable titles remain in other parties, defendants in the different cases. Now we are quite clear that if this be the case, the cause of action against both parties must have arisen at one and the same time, viz. the date of the sale of the tenures. The mere fact of the tenures being registered in the name of one person, and his name being alone used in the sale proceedings, cannot affect the question: but on the supposition that the allegation of the plaintiff is correct, the application of the statute of limitations to the claims set up by him, as against the parties holding the legal and equitable ownership, or in other words, against the trustees and their cestui que trusts, must be identical. As then we are of opinion that the statute of limitations, in claims like the present, that is, for the balance of current rent unsatisfied by the sale of the tenures themselves, runs only from the date of the sale, both as regards parties clothed with the legal and equitable ownership in the properties, we think that the decisions of the court below, dismissing the claim of special appellant as against the alleged equitable owners as being barred by the statute, is erroneous, and that that statute in the present cases is inapplicable. We therefore remand the cases to the lower court, with instructions that it will enquire into the correctness of the allegation made by the plaintiff, as to the beneficial interest in the putnee tenures being with parties other than the ostensible owners, and pass against them such decision as justice seems to require. |