Case remanded, to consider plea of defendant, petitioner, which had he has entered into engagements; and consequently, when the proprietor of the estate seeks to assert his proprietary rights in respect of those lands, no plea of limitation can be raised, on the ground that the tenant's possession has been an adverse possession to the landlord. All that can be said on that point is that the proprietor, having neglected to demand rent, has permitted the tenant to hoid rent-free for such period; but such neglect does not debar the proprietor from making the demand in future, or from exercising any other proprietary rights over these lands which he has not voluntarily relinquished. The precedent in the case of Degumber Mitter applies to this case, so far as showing that limitation does not stop an action on the part of a zemindar, on the ground that a tenant's possession is at any time an adverse possession to his landlord. We therefore remand this case, and likewise that brought by the same (plaintiff) appellant, and with the same object, against Juggur nath Sircar, No. 503 of 1856, decided against the appellant on similar grounds by the principal sudder ameen. Both these cases must be restored to their original numbers on the file of the lower court and decided on the merits. THE 25TH NOVEMBER 1858. PRESENT: J. H. PATTON, ESQ., Judges. A. SCONCE, Esq., PETITION No. 162 of 1858. IN the matter of the petition of Sheebnarain Chowdree, one of the defendants, filed in this Court on the 17th February 1858, praying for the admission of a special appeal from the decision of Mr. E. Lautour, judge of 24-Pergunnahs, dated the 20th Novembeen overlook ber 1857, amending that of Roy Obhoy coomar Dutt, sudder moonlower appellate siff of that district, dated 7th January 1857, in the case of Moodhoosoodun Mookerjea, plaintiff, versus Sheebnarain Chowdree and others, defendants. ed by the court. Vakeels of Petitioner-Baboos Dwarkanath Mitter and Vakeel of the Opposite Party-Baboo Chundernath Chatterjea. This suit was instituted on 12th May 1856, or 1263, for the purpose of acquiring possession of certain premises, together with wasilat from date of suit. The first court gave a decree for plaintiff, exempting Sheebnarain Chowdree, a defendant, as well as the present petitioner, from liability for wasilat; but on appeal, the zillah judge has held him liable to pay the wasilat claimed by plaintiff. Petitioner takes two grounds for special appeal, first, it is contended that petitioner, being a sub-lessee of the principal defendants, and as such having during his possession paid rent to the principal defendants, they, and not he, are liable for wasilat; secondly, that petitioner pleaded that he had wholly resigned the premises from Assar 1263, and that he cannot be answerable for wasilat subsequent to that date. Upon the first point, we find no defect in the judge's decision, as the petitioner's occupancy is held to have been collusive and fraudulent; but, for the second reason assigned by the petitioner, it appears to us that the case must go back to the zillah judge for further consideration. The judge has disposed of the case as if petitioner as defendant asserted his non-responsibility to the plaintiff, on the ground of his having paid the rent to his co-defendant; but in fact petitioner's principal plea was that, from Assar 1263, i. e., the second month subsequent to institution of the suit, petitioner_had vacated the premises and owed no rent at all from that date. Failing to notice this plea, the judge's decision is defective, and the case is accordingly remanded. THE 27TH NOVEMBER 1858. PRESENT: J. H. PATTON, ESQ., Judges. G. LOCH, Esq., Officiating Judge. CASE NO. 327 OF 1858. Special Appeal from the decision of Mr. F. A. Glover, Officiating Judge of Rungpore, dated 21st December 1857, affirming a decree of Baboo Muddunmohun Dutt, Moonsiff of Buddeakhally, dated 29th May 1857. WOOPASSEE BEEBEE, (PLAINTIFF,) APPELLANT, versus BUXOO NUSSOO AND OTHERS, (DEFENDANTS,) Vakeel of Appellant-Moulvee Murhumut Hossein. Vakeel of Respondents-Baboo Onookoolchunder Mookerjee. THIS case was admitted to special appeal on the 14th May 1858, This suit under the following certificate recorded by Messrs. B. J. Colvin was instituted and A. Sconce. P by petitioner, to establish her The first court dismissed the auit and an appeal made by plain tiff has been dismissed by the judge, because the "Petitioner's suit on an alleged right by pre-emption was dismissed on the merits by the lower court, and, on petitioner's appeal, the appeal was struck off by the judge under Circular Order No. 211, dated July 1st 1842, as all the defendants had not been made respondents. In this case, which relates to the sale of a homestead, the zemindar was the party omitted, although apparently only a pro formâ defendant. We admit the special appeal to try whether this reason is not insufficient, and that, if insufficient, the case may be remanded for trial of the petitioner's appeal on the merits." JUDGMENT. The appeal preferred to the zillah judge in this case by the plainappellant had tiff, now special appellant, has been dismissed because the appel omitted to name the zemindar as a respondent. Held that, as the zemindar lant had failed to name as a respondent a party who had been made a defendant in the first court. Plaintiff, being as she asserts in possession of half of the land of a jote, which was originally held jointly by her deceased father and did not appeal his brother the principal defendant, has sued the latter, her uncle, to establish her right of pre-emption in the second half of the land: in the first court, the judge may, without detriment to his interests, proceed to deter. mine whether, as between the parties before him, plaintiff has established her right of pre-emption. *THE JUDGE'S DECISION. No. 134 OF 1857. Regular Appeal from the decision of Baboo Muddunmohun Dutt, moonsiff of Woopassee Beebee, (Plaintiff,) Appellant, versus Buxoo Nussoo and others, (Defendants,) Respondents, Suit for the right of pre-emption of certain lands, laid at Co's rupees 25. The moonsiff dismissed the suit, against which decision the plaintiff appeals. First.-Ought not this appeal to be rejected in accordance with the provisions of Circular Order No. 211, dated July 1st 1842, all the defendants in the court of first instance not having been made respondents in this? Secondly.-Is the appellant's claim to right to pre-emption proved? On the first issue I am of opinion that the appeal must be rejected. Circular Order No. 211 is clearly in point, Section 2 of that order rules that, when an appellant omits the name of any person who opposed him in the lower court without stating grounds for such omission, he shall be allowed to supply the defect within the period of appeal; but in the event of his neglect to do so, his appeal shall be rejected as incomplete. In this case the zemindar of the land to which the right of pre-emption is disputed was made a defendant in the lower court, but not included amongst the respondents in appeal. No grounds for the omission were stated, nor was any attempt made to supply the defect. and her suit having been dismissed by the moonsiff, plaintiff appealed to the zillah judge against that decision. The plaintiff had named the zemindar of the land as a defendant in the suit; but he failed to appear in the case, and plaintiff did not name him as a respondent in appeal. The judge, in rejecting the appeal upon the ground above stated, appears to consider that it is incumbent in all cases on appellants to include as respondents all parties who were opposed to them in the lower court: but a series of decisions pronounced in this Court has held that neither plaintiffs on appealing are required as of course to name all the defendants as respondents; nor have defendants on appealing to name all their co-defendants as respondents. In the decision reported at page 282 of the Decisions of 1851, it was held in special appeal that the case might proceed against one of several respondents, who alone had been named, but that it would be a question for determination when the case came for final decision, whether any decree can pass in the absence of the other persons, who were co-defendants in the first court. A similar order was passed on the special appeal reported at page 791 of the Decisions of 1852, when it was held that the zillah judge had misapplied the Circular Order of 1st July 1842, upon which in the present decision the zillah judge relies. And again, in the special appeal reported at page 856 of the Decisions for 1853 the same course was followed. In this last case, plaintiff was the appellant in the zillah, and having omitted to name Government as a respondent in correspondence with its position as defendant in the first court, the principal sudder ameen threw out the appeal; but as Government in its answer had declared it had no interest in the contest, it was decided on special appeal that it was unnecessary that Government should be represented in the lower appellate court. So it appears to us, upon the same principle, no legal defect exists to the hearing by the zillah judge of the appeal made to him by the plaintiff Woopasee. The zemindar took no advantage of the opportunity given to him in the first court to oppose the right of preemption asserted by plaintiff: and, without detriment to his interests, the judge may proceed to determine, whether the plaintiff has a preferential right to purchase the land before the person to whom her uncle had sold it. The case will accordingly go back to the zillah judge for disposal on its merits. The appellant urges that, inasmuch as it was necessary to make the zemindar a respondent, the precedent of the Sudder Dewanny Adawlut dated 22nd November 1853, applies. I think not. That case refers to circumstances where the defect was not such as to preclude a complete decision. Here the jote in dispute is a sursuree one, and as such cannot be sold without the consent of the zemindar. But in any case I conceive that an isolated decision cannot overrule a Circular Order which has been promulgated by the Court collectively. The appeal must be rejected, with costs. An award was passed by the revenue authorities in favor of A, against B and THE 27TH NOVEMBER 1858. PRESENT: J. H. PATTON, ESQ., Judges. G. LOCH, Esq., Officiating Judge. CASE NO. 227 OF 1858. Special Appeal from the decision of Mr. G. L. Martin, Officiating Judge of Sarun, dated 21st November 1857, reversing a decree of Moulvee Alee Buksh, Moonsiff of Pursa in that district, dated 18th August 1856. BHEEKUN LAL AND OTHERS, (PLAINTIFFS,) APPELLANTS, versus BUKHOREE SINGH AND OTHERS, (DEFENDANTS,) Vakeels of Appellants-Baboos Kishenkishore Ghose and Kishen- Vakeel of Mooroolee Dhur and others, Respondents—Baboo THIS case was admitted to special appeal on the 5th April 1858, under the following certificates recorded by Messrs. B. J. Colvin and A. Sconce. MR. B. J. COLVIN.-" Petitioners' suit has been dismissed in C. B sued to appeal under Act XIII. of 1848. Hence this special appeal. reverse the award within three years, decree. When It appears that the parties to this suit were co-proprietors of half a village in shares of 4 annas each. The village was washed away, and obtained a and, on resumption after re-forming, the settlement was made B had got with a third party, in rejection of the separate claims of the possession, and present parties. On the 18th February 1843 the defendants after the lapse sued, and had the settlement made with that party reversed in from the award their own favour on 8th February 1849. Petitioners have now authorities, C sued them, to be allowed to participate in the settlement; but sued B for his their suit, brought in December 1855, has been dismissed as beestate. Held yond three years, whether reckoning from 1843 or 1849. The judge has held too that Construction No. 980 did not apply. of 12 years of the revenue share of the that, both |