There is no doubt in this case (as defendants admit it,) that the Act IV. proceedings were promoted by them on the ground of disturbed possession, and that those proceedings were subsequently to Bhadoon 1249, and within 12 years of this action. As, moreover, the possession which defendants got through the collector was not necessarily a khas possession, nor did the sale ostensibly cancel a gantee existing before the decennial settlement, it seems manifest that defendants' plea of limitation is not substantiated as a natural consequence of any possession accruing to him under the Government sale. I should therefore hold that, unless defendants establish by proof that they acquired khas possession in Bhadoon, no plea of limitation can prevail to bar the present action.

This I hold to be the more essential in the present case, as the plaintiffs' pleading discloses that some period of time is also accounted for during which the plaintiffs' action was pending previous to an order of nonsuit, which time they are entitled to count in postponement of limitation, but of the benefit of which they are deprived if the onus of proving that they are dispossessed within 12 years, calculating from the institution date of the present action, be thrown upon them.

Plaintiff

sued defendant to recover a

sum of money

Regular Appeal from the decision of Baboo Oopendurchunder Nyaruttun, Principal Sudder Ameen of Jessore, dated 25th August 1856.

MEER ALEE USHRUFF AND ANOTHER, (DEFENDANTS,)

APPELLANTS,

versus

GOOROOPERSAD SHAH, (PLAINTIFF,) RESPONDENT.
Vakeels of Appellants-Baboos Shumbhoonath Pundit
and Mr. R. T. Allan.

Vakeels of Respondents-Baboos Ramapersad Roy and
Kishenkishore Ghose.

SUIT laid at Company's rupees 8,920-5-4.

Gooroopersad Shaha, plaintiff, sues Meer Alee Ushruff and Meer Mahomed Alee of Puduindhee, pergunnah Mohinsal, zillah Jessore,

due under a

bond.

Defendant

execution of

decree.

Held, on ap

ment; that the

therein has

defendant, ap

fendant in the

present suit has dishonestly attempted to evade the payment of a just debt.

to recover the sum of rupees 8,920, principal and interest due on a bond. Plaintiff alleges that monetary transactions between him and denied the defendants had frequently passed, and they used to borrow money the same and from him and his partners Ramtunnoo and Sreekant Shah, which pleaded nonliability. loans were repaid partly by the sale of indigo and partly in cash ; The lower that Meer Alee Ushruff, at the end of Kartikh or the commencement court gave of Aughun 1259, signified that he urgently required a loan of plaintiff a rupees 7,000; that plaintiff having intimated that he would accommodate him, the Meer on the 25th Aughun of that year sent a deed propeal, that the letter through his son Meer Mahomed Alee, requesting that the sum pounded is a of rupees 7000, promised by plaintiff, might be paid to his son in genuine docuCalcutta, who would execute a bond in his own and his father's consideration name as he had been authorised to do; that accordingly on the 5th mentioned Poos 1259, Meer Mahomed Alee, the son, handed the said letter to been duly replaintiff's gomashta in Calcutta, and then executed in favour of ceived by the plaintiff a bond duly signed on his own and his father's account pellant; and affixing their respective seals to that document, and that the amount that the dewas paid in notes, with the exception of rupees 1,700, which were paid by an order on plaintiff's gomashta at Pubna, where the money was required for the payment of Government revenue; that subsequently, on the 27th Poos 1259, Meer Alee Ushruff acknowledged by letter the receipt of the money, and, on 19th Cheyt 1259, received a further sum of rupees 3,000, under a bond executed in favour of plaintiff's partners; that, on failing to pay the aforesaid loan amounting to rupees 10,000 within the term stipulated, the said Meer, on the 28th Maugh 1260, wrote a letter to plaintiff promising to liquidate rupees 4,000 of the said debt in 1260 B. E., and at the same time signified his intention of contracting a further loan of rupees 5,000, over and above the balance, executing a bond for the whole amount and pledging his estate of Gurgahpal or his indigo factory as security; that on the 13th Cheyt 1260, defendant executed another deed in favour of petitioner's partners for rupees 1,700, of which he has received only rupees 450, the residue not being drawn by him; that thus on different occasions defendants have borrowed money from plaintiff; that being unable to recover the same, plaintiff's partners instituted a suit for rupees 3,000, for which a bond had been executed in their favor; that plaintiff was in hopes that by that suit defendants would pay their debts, but as that has not been the case, and defendants are endeavouring fraudulently to alienate their real property, plaintiff brings his present action for the sum due under the aforesaid bond, dated 5th Poos 1259, viz. rupees 7,000 principal and rupees 1,920, interest, altogether rupees 8,920, and prays that the court will give a decree for the same.

The defendant Ushruff Alee denies having written any letter to plaintiff soliciting the loan of rupees 7,000, or having authorised his

The decision

of the lower court affirmed, and costs.

with interest

son to sign his name to a bond: he denies also having monetary transactions with the plaintiff: he asserts also, in which assertion he is joined by his son, that the son never borrowed any money under the particular bond in suit, that the bond is not registered and is a forgery, that the letter propounded by plaintiff as written by him is a forgery also; that rupees 1,700 were drawn by his mookhtear Kaleepersaud Roy according to an order (barat) and were due to him, defendant, on account of the sale of indigo, and that his mookhtear aforesaid having drawn that amount granted his receipt on the back of the barat, but that such order was not granted on account of the alleged loans; that in short the cause of the present action is, that he, defendant, used to consign the indigo made in his factory to plaintiff's house of agency, that plaintiff's gomashta deducted too much in the shape of brokerage and commission from the sale proceeds of 1259, and agreed only to give defendant rupees 6,000, that he declined to receive the sum and has ever since consigned the indigo of his factory to Messrs. Moran and Co., and that being about to prosecute plaintiff and his partners for the recovery of the amount of sale proceeds due to him, plaintiff and his partners have separately brought false actions against his house to forestall his just claim against them.

The defendant Meer Mahomed Alee answers much to the same effect as does his father.

The principal sudder ameen was of opinion, from the evidence of witnesses, that the bond of the 5th Poos 1259, was a genuine document signed by Mahomed Alee in his own and his father's name; that the consideration for the same, the sum of rupees 5,300 were paid to Meer Mahomed Alee partly in cash and partly in notes, and an order for rupees 1,700, on plaintiff's gomashta at Pubna; that it was clearly proved that this sum had been received by defendant's mookhtear at Pubna, Kaleepersaud Roy, from plaintiff's gomashta, Asanund Shah and also that the receipt of the rupees 7,000 had been acknowledged in a letter, dated 27th Poos 1259, to the address of the plaintiff, bearing the signature of Meer Alee Ushruff. For these and other reasons the principal sudder ameen gave plaintiff a decree for the amount claimed.

JUDGMENT.

An appeal has now been preferred against the decision passed by the principal sudder ameen adverse to them by the defendants below. They urge generally that the decision of the lower court is in various particulars erroneous and defective, and that the present claim of the plaintiff below is altogether false and has its origin in enmity to them.

The main allegations of the parties to this suit are few. It is alleged by the plaintiff, that in a letter to his address, dated 15th

Aughun 1259, Meer Ushruff Alee expressed to him his request for a loan of rupees 7,000; that, on his stating in reply his readiness to accommodate him with the loan, the Meer on a subsequent date wrote a second letter, requesting that the promised loan might be paid over in Calcutta to his son Meer Mahomed Alee, who was empowered to sign his father's name and would also sign his own; that accordingly the above sum was paid to Meer Mahomed Alee on the 5th Poos 5,300, in bank notes and cash, and rupees 1,700 by an order upon plaintiff's house of business at Pubna, who on the same date executed a bond for that amount duly signed by him, both for his father and himself, and sealed with their respective seals; that as defendants have not repaid the sum, plaintiff institutes the present action.

The defendants deny the whole transaction, but, acknowledging that they received from plaintiff an order upon plaintiff's house of business at Pubna, assert that they received the said order for rupees 1,700, the balance due on account of the sale of indigo. They stigmatize the bond produced as a forgery and an unregistered document unworthy of credit, adding that plaintiff has resorted to such an act through enmity to them

On these pleadings the simple issue is whether the bond is a genuine document or not; and whether the consideration for it. therein stated was received by defendants or not.

It is in evidence that this is not the first monetary transaction that has passed between the parties before us, but that on other occasions they have had transactions of this nature. The fact of non-registry of a document executed by parties who are in the habit of dealing with each other, is in itself no evidence of the non-genuineness of that document; it simply, as remarked by the principal sudder ameen, shews the degree of mutual confidence which existed between them. Disregarding then the objection to the document propounded by plaintiff on this score, we may look to the document itself. It has been proved before us by the evidence of Ramtunnoo, Gooroopershad Dutt, Ruggut Alee Khan, Ramkoomar Khan, Jumeerooddeen Khan, and Kooranchunder Ghose, that on the 5th Poos 1259 the defendant Meer Mahomed Alee went to the house of business of the plaintiff, and, addressing Ramanath, the gomashta, requested that they would pay to him the sum regarding which correspondence had taken place with his father; that Gobind Buxee wrote the bond now produced, which was signed and sealed by Meer Mahomed Alee both on his own and his father's account; that he then received the sum of rupees 1,300 in notes, rupees 4,000, in cash, and an order on plaintiff's house of business at Pubna for rupees 1,700, and having got the money he went away.

The evidence of these witnesses have been confirmed by a letter written by Meer Ushruff Alee on the 27th Poos 1259, to the plaintiff in the case, in which he acknowledges having, as consideration for the bond of rupees 7,000, received from plaintiff the sum of rupees 5,300, in notes and cash and an order for Rupees 1,700 for the payment of revenue at Pubna. In this letter the writer goes on to acknowledge that he has, through his agent Kalleepersaud Roy, received from plaintiff's gomashta at Pubna, Asanund Shah, the sum mentioned in the order which has been paid in discharge of revenue due by the writer and has saved the estate from sale.

This letter has been proved before us by the witness Ramdhone Dass, who was sent by the plaintiff to the defendant Ushruff Alee at Pudumdhee, in consequence of the defendant's not sending down his indigo to him, and who received it from the writer in reply to one which he bore from the plaintiff to the Meer. Moreover, the payment of the sum of rupees 1,700 at Pubna to the gomashta of the defendants, is proved by the evidence of Telookchunder Ghose and Nobinchunder Ghose; and this fact is further proved by the copy of a petition filed before the collector of Pubna by Kalleepersaud, the agent of the defendants, in which it is stated that the money in question was received from the agent of the plaintiff for the purpose of paying the Government revenue, and that interest would be calculated on the same from the date of the receipt of the money advanced. This statement is altogether opposed to the fact pleaded by the defendants, that the sum of 1,700 was received from plaintiffs as a balance due on account of indigo; for had this been the case, no question of interest, as observed by the principal sudder ameen, could have occurred.

The evidence of the principal defendant in this case, Meer Ushruff Alee, has been taken. In answer to questions put to him, he states that he is unable, without asking his son, to say whether the sum mentioned in the bond was received by him, neither can he say whether the seal on that document is his, as no letters have been clearly impressed upon the documents, nor whether the signature of his son on it is genuine or not: he cannot say positively whether the letter of the 25th Aughun 1259, produced in court, is in his hand-writing or not, but he suspects that the writing is not his. As to the letter of the 27th Poos 1259, he speaks positively, asserting that it is not signed by him. Such being the case of the plaintiff, what evidence has the defendant brought forward in proof of his averment? None at all. He has in appeal before us contented himself simply with attempting to throw doubt on the credibility of the witnesses of the plaintiff. This however he has altogether failed to do. We think that the evidence above noticed clearly establishes that the bond of rupees 7,000 was executed by the defendant Meer