CASE No. 284 OF 1858. MOOROOLEERAM AND OTHERS, (PLAINTIFFS,) APPELLANTS, versus IHAJHOO KOONWUR, WIDOW OF WOODITNARAIN, Vakeel of Appellants-Baboo Ashootosh Chatterjee. Vakeel of Respondent-Baboo Kishensukha Mookerjee. THESE cases were admitted to special appeal on the 28th April 1858, under the following certificate recorded by Messrs. B. J. Colvin and A. Sconce. Suit for arrears of rent was dismissed by the lower appellate court not sued on a kuboolyut or proved past as plaintiff had "Petitioners instituted these suits to recover arrears of rent for the years 1252 to 1262; and the claim, which was decreed in favor of plaintiff's by the moonsiff, was dismissed by the principal sudder ameen, as plaintiff's had not proffered either a kuboolyut or proof payments. But of past payments. the case is remanded that the principal sudder ameen may reconsider The defendant called the land nankar, given as birt to make a garden; and therefore he held it not to be liable to assessment. But the moonsiff in his decision shews, from the roobukaree of settle- the facts asserted by the ment, dated 30th September 1839, that beegas 13-17 in all had moonsiff,-that been recorded in the name of the defendant's ancestor, Ramooroogea the land was Singh, that no claim was made to the land by appearance at the determined by time of settlement, and that the land was included within the 1839 to be mal settled land of the village. Further, the moonsiff remarks that land and not lakhiraj, as the settlement proceedings shewed that the garden land recorded urged by dein the names of absent maafeedars was assessed at one rupee a beega, and he considered plaintiffs to be entitled to arrears at that rate. a settlement of fendant, and that, in that settlement, the rate payable by the occupant "The ground of special appeal is that, as the land of the defendant was also speci was assessed at the settlement as mal land, plaintiffs were entitled fied, and, if to arrears at the rate fixed at the settlement, and that the moonsiff's the arrears decree to that effect should be affirmed. "We admit the special appeal to try that point. The same order applies to No. 284." JUDGMENT. It appears to us that the moonsiff has decided this case upon a proper view of the issues and of the law bearing upon the plaintiffs' claim. In the argument before us, Baboo Kishensukha for respondent urged that, as his client, the defendant, claimed the land as lakhiraj, and asserted his possession thereof independent of plaintiff, the question of plaintiffs' right to assess should be left to another action. But the revenue settlement of this village has already determined the assessable character of the land; that it is rent-paying and not lakhiraj; and therefore a question, which has C correct, award claimed. been already decided by competent authority, cannot be again re-opened. We accordingly remand the case to the principal sudder ameen, that he may consider the facts as assumed by the moonsiff, that is, that the land has been brought within the assessed land of the village by the settlement of 30th September 1839; that it is garden land; and that the rate of assessment fixed at the settlement was one rupee per beega. Upon those facts being found, plaintiffs, it appears to us, are legally entitled to an order for the arrears due. The same order applies to No. 284. Held that a party who seeks to avoid a plea of limitation, raised against his THE 1ST DECEMBER 1858. PRESENT: B. J. COLVIN, Esq., Judge. C. B. TREVOR, ESQ., Oficiating Judges. CASE No. 342 OF 1858. wwww Special Appeal from the decision of Moulvee Syed Ahmud Buksh MAHOMED SADIQ AND MAHOMED SABIR, (PLAINTIFFS,) versus SHEIKH MAHOMED AKTAR AND OTHERS, (DEFENDANTS,) Vakeel of Appellants-Baboo Poorunchunder Roy. THIS case was admitted to special appeal on the 21st May 1858, under the following certificate recorded by Messrs. B. J. Colvin and A. Sconce. "Petitioners instituted this suit to recover possession of certain claim, is bound land, from which defendants, under a deed of sale, dated 5th Jeyt to show dis- 1249, had ousted them. Petitioners deny the validity of this tinctly in his pleadings, by kubala. clear specifica tion of dates, "Both courts have thrown out plaintiffs under the law of limihow the plea is tation, the principal sudder ameen remarking that 14 years and some odd months had elapsed from the date of the kubala to the date of suit. to be avoided. "The ground of special appeal is, that the lower courts have erred in not allowing a deduction to plaintiffs, in consequence of the time consumed in the trial of an earlier suit, preferred to set aside the same deed of sale and recover the land. It appears from the moonsiff's present decision that, in his court, the first suit had been decreed for plaintiff, but was nonsuited in appeal. "The exact time occupied in the trial of the first suit is not shown to us: but the question of deduction has been overlooked by both courts; and as both admit that the first and second suits refer to the same land and are carried on between the same parties, we admit the special appeal to try the point raised by petitioners." JUDGMENT. The (defendants) respondents in this suit pleaded limitation. The plaintiffs, petitioners, in their reply endeavoured to rebut the plea, by stating that another suit between the same parties and for the same property had been instituted, and nonsuited on appeal, and that the time that case was pending had not been taken into account by the lower courts. But on reference to the pleadings, we find that the petitioner has omitted to mention the date on which the case which was nonsuited was instituted, and he has not up to the present time supplied the ommision. We think that a party seeking to avoid a plea of limitation raised against his claim is bound to show distinctly in the pleadings, by a clear specification of dates, how the objection is to be avoided, and the plea without foundation; and as the plaintiffs, petitioners, have failed to do so, we dismiss the appeal, with costs. Petitioner, Special Appeal from the decision of Mr. R. Abercrombie, Officiating Judge of Dacca, dated the 30th December 1857, affirming a decree of Mr. T. C. Pennington, Sudder Ameen of that district, dated 22nd November 1856. ROYCHAND ROY CHOWDREE, (PLAINTIFF,) APPELLANT, versus MOULVEE ABDOOL ALEE AND RADHAMOHUN ROY, Vakeels of Appellant—Mr. R. T. Allan and Vakeel of Radhamohun Roy, one of the Respondents-Baboo THIS case was admitted to special appeal on the 1st May 1858, having bought under the following certificate recorded by Messrs. H. T. Raikes and B. J. Colvin. certain villa ges, sued a farmer for rent, who pleaded having paid in "The petitioner sued as plaintiff for the rent due by a farmer, who held in farm certain villages conveyed by sale to the plaintiff, anticipation to petitioner. The farmer pleaded that he had paid the rent in advance to the old proprietor, plaintiff's vendor, who had given him the farin. the former Owner, Held that petitioner, being in the place of the vendor, "Both the lower courts dismissed the claim, holding plaintiff of and having bound by the act of his vendor who had anticipated the farmer's only the rights rent, and thereby left petitioner incompetent to demand it again. "The special appeal questions the legality of this decision; and ver the rent, we admit the special appeal to try whether, in such an action, not im- petitioner can recover rent from the farmer, or not." could not reco as the farm was pugned as collusive, and there was 110 denial by peti. tioner of pay ment by the farmer to the vendor. JUDGMENT. The claim in this suit was for rent from the vendor and farmer, on the ground that from the date of petitioner's purchase, viz. 22nd Bhadoon 1260, he, the petitioner, was the party entitled to it. There is no allegation in the pleadings impugning the farm as collusive, or that the farmer had not paid rents in anticipation to the petitioner's vendor, but the assertion is that, even if paid, petitioner was entitled to recover the rent. It was not necessary therefore in this case, as contended for petitioner, that the genuineness of the farm and the actual payment of rent should be proved. Petitioner, having no rights beyond what the vendor could have exercised, cannot recover in this suit rent as sought, although he of course may have a claim in another form against the vendor, for selling the property to him with liens existing on it. We dismiss this appeal, with costs. THE 4TH DECEMBER 1858. PRESENT: J. H. PATTON, Esq., Judge. H. V. BAYLEY, Esq., Officiating Judge. m wwwww In this case known and ges being sued for, no detailed boundaries is Case remanded definition of IN the matter of the petition of Ranee Buxeen and another, filed in this Court on the 24th July 1858, praying for the admission distinet villaof a special appeal from the decision of Mr. O. W. Malet, judge of Beerbhoom, dated 28th April 1857, reversing that of Baboo Peareemohun Banerjee, principal sudder ameen of that district, dated 17th March 1857, in the case of Ranee Buxeen and another, plaintiffs, versus Kishenchunder Chucker buttee and others, defendants. Vakeels of Petitioners-Baboo Taruknath Sen and Mr. R. T. Allan. Vakeels of the Opposite Party-Baboos Kishenkishore Ghose and Moheshchunder Chowdree. It is hereby certified that the said application is granted on the following grounds. On reference to the record, we find that the suit is for certain rent free land, forming certain villages and chucks; that those villages and chucks are known as separate and distinct ones; and therefore no detailed boundaries are required to be given for it has been frequently ruled by this Court, that where known and distinct villages are sued for, no detailed definition of boundaries. is necessary. We therefore reverse the order of the judge, and remand the case, in order that it may be disposed of under any other issues that may arise. necessary. for trial on other issues. |