Arrears of rent having been realised from speci al appellants by a summary suit carried on Special Appeal from the decision of Mr. W. S. Seton-Karr, Off- GORACHAND BISWAS AND ANOTHER, (PLAINTIFFS,) versus BEEBEE ASHRUFOONNISSA, (Defendant,) Respondent. Vakeels of Respondent-Baboo Shumbhoonath Pundit THIS case was admitted to special appeal on the 24th March 1858, under the following certificate recorded by Messrs. J. H. Patton and A. Sconce. "This suit was instituted to recover the sum of rupees 938-2-9, on account of rent levied from the petitioners, plaintiffs, in execution of the zemin of a summary decree, which summary decree had been subsequentdar, and the ly by a regular suit set aside. by the agent summary decree having been set aside by a regular decree, it is held in special appeal that whatever dis putes may have existed between the zemindar and her agent, the former should "The summary suit referred to was preferred on the 19th September 1853, (1260,) by Moonshee Fuzlool Kureem as manaof the estate of Beebee Ashrufoonissa. A decree was passed ger on the 8th November 1853, for the arrears claimed, and, on the 25th Maugh 1260, that is, a few months subsequent to the summary decree, the sum decreed, having been paid in by the tenants, was received by Moonshee Fuzlool Kureem. "In the present action, there is no question as to the order against Fuzlool Kureem or his heirs, but the zemindar, Beebee Ashrufoonissa, has been exempted from liability and upon that special appel- point the special appeal is preferred. be held answerable to lants to repay the rent irregularly levied by the latter. "It is shewn by the pleaders for petitioners that though, in the month of Bhadoon 1259, the Beebee had, by a petition to the judge, intimated that she had dismissed Fuzlool Kureem as her mookhtear, nevertheless, both the magistrate by his order of 8th November 1852, and the session judge on the 30th December 1852, had affirmed Fuzlool Kureem's possession of the property; and this person, by virtue of this possession, instituted the summary suit, to which this case relates, in the following September. It is, therefore, argued that, as Fuzlool Kureem sued summarily as the Beebee's agent, and received in execution the money decreed in the same character, the principal as well as the agent should be held answerable to them. "The petitioner's suit to set aside the summary decree was instituted against Fuzlool Kureem alone; and as the money paid in execution of the summary decree was received by Fuzlool Kureem while that case was pending, the judge holds the petitioners to have neglected their own interests in not causing execution to be stayed. But the point submitted by the petitioners is peculiar, and of some difficulty; and we admit the special appeal, to try whether Beebee Ashrufoonnissa is or is not legally liable to the petitioners for the money received by Moonshee Fuzlool Kureem." JUDGMENT. It has been urged by Baboo Shumbhoonath Pundit in behalf of the zemindar, that no liability could be attached to her in this suit, inasmuch as she had done all she could to release herself from such liability, by openly and publicly denying that Fuzlool Kureem was acting as her agent. We observe, however, that she not only did not prevent the summary suit proceeding on the part of Fuzlool Kureem as her agent, but, though she appeared and admitted that he had levied the arrears a second time, she nowhere in the progress of the suit repudiated his agency; and the money paid in by the petitioners must have been received by him on her account. The petition presented by her in the month of Bhadoon 1259 B. S., on whieh much stress has been laid, appears to us to have little weight against the fact that Fuzlool Kureem had been maintained in possession of the property, by an award of the judicial authorities under Act IV. of 1840, previous to the institution of the summary suit, which he instituted in virtue of that possession and carried on as her agent. It is right that the tenant in all such cases should look to the zemindar; and as we think that the proceedings before us show that Fuzlool Kureem was acting as the agent of the zemindar, we are of opinion that, whatever disputes may have existed between her and her agent, they could not possibly affect the right of the tenant to recover the money paid. to him as her agent, and that she must, therefore, be held answerable for the amount. The special appeal is dismissed, with costs. Regular Appeals from the decision of Mirza Mahomed Sadiq, UTTUMNARAIN SINGH, (DEFENDANT,) APPELLANT, versus BHUGWAN DASS AND AFTER HIM SHUMBOONDEE Vakeels of Respondents-Baboo Kishenkishore Ghose. No grounds in support of the appeals preferred having been adduced, the decision of the lower court is affirmed. No. 182 OF 1855. SHEOSUNKUR SINGH AND OTHERS, (DEFENDANTS,) versus GOBIND DASS AND OTHERS, (PLAINTIFFS,) RESPONDENTS. Vakeel of Respondents-Baboo Ramapersad Roy. SUIT laid at Company's rupees 26,283-0-3. The object of the suit, from which these two appeals have arisen, was to establish the right of the plaintiff to possession of Rughopore and Hurporhilla as dependancies of Hubbispore, the estate which plaintiff had purchased at a Government auction sale for arrears of revenue, which dependancies, plaintiff alleged, the defendant had retained possession of as belonging to Bhowungong, a neighbouring estate, which estate, as well as Hubbispore, the defendants had held as proprietors. The principal sudder ameen, upon evidence supported by documentary proof, decreed the plaintiff entitled to the villages as belonging to Hubbispore, remarking that the defendants had only oral evidence in their favour, and declared the defendants liable for wasilat in different proportions. In the appeal No. 181, Mr. Allan, after informing the Court that his client had supplied him with neither papers nor instructions, stated that the only point he could submit was a plea that the suit had not been brought within three years of the promulgation of Act XIII. of 1848, although the matter at issue had been brought to the notice of the survey authorities in 1843; but after the pleader had had those proceedings read to the Court, he admitted that no award had been passed by the revenue authorities; and it was evident to us that the question of boundaries then mooted was left by the survey authorities undetermined, as the matter had not been brought before them until after the demarcation of Hubbispore was concluded, and the plaintiff was then unable to make out any such prima facie case as justified the survey officers in re-opening the survey. We have therefore no hesitation in deciding that the provisions of Act XIII. of 1848, have no application to this suit. In the other appeal, the pleaders described themselves as equally unprepared from the neglect of their clients, and doubted whether it was their wish to carry on the appeal, as their fees had never been paid to them. They however represented that the only point they had to urge was, whether Luchmeenarain's share of the wasilat had been properly apportioned; but as the lower court appear to have held him and his heirs responsible for as a proprietor to that extent, and the only reason assigned against it is that his name was not in the collector's books, we deem that fact alone insufficient to relieve him or his heirs from responsibility, when the interests alleged as really existing are not denied. We therefore see no reason to interfere with any part of the lower court's decision, and confirm it, with costs of the two appeals on the appellants respectively. D THE 7TH DECEMBER 1858. PRESENT: In this case, plaintiff, by a petition to the first court, having agreed to abide by whatever the Special Appeal from the decision of Mr. P. Taylor, Judge of West MODOOSOODUN TEWAREE, (ONE OF THE DEFENDANTS,) versus RAMCHUNDER BISWAS, (PLAINTIFF) AND BHYROBLAL- Vakeel of Appellant-Baboo Kishensukha Mookerjee. THIS case was admitted to special appeal on the 17th March 1858, under the following certificate recorded by Messrs. B. J. Colvin and J. S. Torrens. "Petitioners, defendants, were sued for the amount of a debt on bond. The moonsiff dismissed the claim for various reasons. two defendants Amongst them was one that plaintiff had agreed to abide by the deposition of defendants, who, on solemn declaration, denied the debt. The judge reversed the decision, and said that the solemn solemu affirm declaration of the defendants was palpably false. should both say when examined on ation, is held to have waived any other evidence ad "It is urged in special appeal that the plaintiff having agreed to abide by the declaration of defendants, the judge's decision is conduced by him trary to this Court's ruling in case No. 131 of 1846, at page 117 of the Reports for 1848. and to be bound by his agreement to accept the defendants' statements. "We admit the special appeal to try the point." JUDGMENT. We find that, when this cause was pending before the first court, the plaintiff by a written petition to the moonsiff, stated that the defendants were both then in court, and asked that they should be examined under Act XIX. of 1853, adding that whatever they should both say, under solemn affirmation, he would agree to without objection, and that any objection he might make should be reckoned futile. Eventually the two defendants were summoned, and, on appearing, were examined; but it appears to us that the very |