to enhance under tenant "This was a suit brought by holders under Government in ment in PunDhee Punchanogram, to enhance the rent of the party holding under chanogram, the plaintiffs. The judge has reversed the decision of the moon- the rent of an siff, which had decreed for enhancement, for two reasons: first, of the land that plaintiffs were not auction purchasers of zemindaree rights, but leased to merely under holders, and had no status to enhance; and secondly, appellants. plaintiffs, that no notice, under Section IX. Regulation V. of 1812, had been The lower served, which, as it appears, under any circumstances, the judge facts that holds, would have been necessary to warrant a decree for enhance- mourooste inent. 66 court held potta set up as a Special appellants put forward the following objections in special was appeal. 66 not proved, and the service of notice, under Regulation V. of 1812, by not proved; plaintiff's, was tiffs, not being but that plain First, that the appeal before the judge was, under the ruling of this Court of the 8th of January 1857, inadmissible, as the woojoo hat appeal was not filed at the same time with the petition, but after expiry of more than a month from date of the moonsiff's decision; that under rulings also of this Court of the 5th June 1847 and the 22nd of May 1855, and various other precedents, auction-purno notice was necessary when a suit was brought to determine the right and extent of enhancement. chasers were landlord and Next, that the judge has been wrong in holding that plaintiffs appeal it is had no status to enhance the rents of their lessee or under-holder, held that, as and that the objection, moreover, not having been taken before the judge, on the contrary, the defendant having agreed during the progress of the suit to pay enhancement to the amount of rupees 50, the suit should not have been excluded as it has, and that the decision of the moonsiff should have been confirmed. the relation of tenant subsists parties, in the absence of any between the engagement the right of "We admit the special appeal to try the correctness of the plaintiffs to judge's decision.” JUDGMENT. enhance is affirmed, and the case returned to the judge that he upon the rate The decision of this Court in the case of Hubeeboonissa, peti- may pronounce tioner, having determined that an appellant who has been permitted his opinion by the appellate court to file his grounds of appeal as a separate of assessment pleading, is entitled to a hearing, notwithstanding the requirements fixed by the of the law may have been overlooked by the appellate court in so extending the time, the first point recorded in this certificate is decided against the special appellants. The second point appears to be whether the judge was correct in rejecting plaintiffs' claim, on the ground that auction purchasers alone are entitled to sue for enhancement, and that plaintiffs not being auction purchasers have no legal status in court as claimants. for enhanced rent. It appears to us that the judge has in his judgment somewhat strayed away from the subject matter of this suit, as submitted for his decision by the parties themselves. The plaintiffs have entered into engagements with the Government for a holding in Punchanogram, and the defendant occupies the lands of the holding as cultivating tenant thereof. The plaintiffs aver that the rate of settlement demanded by the Government and to which they have agreed, amounts to rupees 31, 13 annas, 5 gundas, and that defendant only pays a rent of rupees 27, 3 annas, 4 gundas, but as defendant holds the lands on no engagement whatever, and plaintiffs' holding has now been assessed and settled by the Government officers, they bring their action to raise the tenant's rates to 10 per beegah, equivalent to an increase of rupees 72, 2 annas, 16 gundas, on his former jumma. The tenant does not deny his occupancy of the land or the right of the plaintiffs as his landlords, but pleads that plaintiffs' ancestor had granted to defendant's ancestor a mookururee potta, which fixed the rent in perpetuity and absolves him from enhancement. This however he could not prove. The defendant also pleaded non-service according to Sections IX. and X. Regulation V. of 1812. This point of non-service of notice has been proved in favor of defendant, and, therefore, the only question left was, whether plaintiffs could be declared entitled to enhance or not. This question the judge has determined against plaintiffs, holding them not to be among those who can enhance at all. As, however, we can see no distinction between this case and any other, in which the relative position of the parties is admitted to be that of proprietor and tenant, we see no reason why the same rules should not be applicable to this case; and in accordance with those rules we consider plaintiffs are entitled to the declaration of their right to enhance in the absence of any engagement binding them to the contrary course. We therefore reverse the order of the judge, and declare plaintiffs entitled to enhance the rent after issue of notice. But as respondent is entitled to have the rates, fixed by the first court, reconsidered by the appellate court, the suit will be remanded to the judge for that purpose, who upon that point will pass such orders as he thinks proper. Case is remanded accordingly. Regular Appeals from decisions of Baboo Gobindchunder Chowdree, CASE No. 512 OF 1856. RAMLAL MOOKERJEE AND CHUNDERNATH MOOKER- versus BEJOYKISHEN SHAH AND OTHERS, (PLAINTIFFS,) Vakeels of Appellant-Baboo Kishenkishore Ghose. CASE NO. 536 OF 1856. KHOODOOMONEE, (DEFENDANT,) APPELLANT, versus BEJOYKISHEN SHAH AND OTHERS, (PLAINTIFFS,)- Vakeels of Appellant-Baboos Shumbhoonath Pundit Vakeels of Respondents-Baboo Ramapersad Roy, Mr. R. Appeal valued at Company's rupees 5,000. BEJOYKISHEN CASE NO. 584 of 1856. SHAH CHOWDREE, FOR SELF AND AS GUARDIAN FOR SREEKISHEN SHAH AND OTHERS, versus RAMLALL MOOKERJEE AND OTHERS, (DEFENDANTS,) Vakeels of Appellants-Baboo Ramapersad Roy, Mr. R. Vakeels of Respondents-Baboos Jugdanund Mookerjee and Appeal valued at Company's rupees 2,874-12 a. 3 p. 1 c. Suit for possession of land after foreclosure of mortgage. shareholders, the ground that the trans SUIT laid at Company's rupees 10,881-8, and instituted on 26ta March 1855. The defendants were Ramlall Mookerjee, Chundernath MookerPlaintiffs were jee, Kaleedass Mookerjee, and Khoodoomunnee Debea, widow of opposed by two Essanchunder Mookerjee ; and the allegation was that the first two self-alleged had conditionally sold to the father of the plaintiffs by a deed, dated on the ground 11th Assin 1258, three separate estates, viz. 7 annas 3 g. 3 c. of perthat they had not joined in gunnah Nusheepore, lot No. 202 on the towjee, 1 anna 1 pie of the the mortgage, same pergunnah, lot No. 204 on the towjee, and kismut dehee Jhillee, as also by the mortgagors, on pergunnah Sherepore, lot No. 154 on the towjee, for an advance of Company's rupees 24,001, which sum, plaintiffs stated, was borrowed from them to pay off arrears of revenue due on the estates, and also to pay for the purchase of a putnee talook. The money was to be repaid on 30th Bhadoon 1260, but it was not; so that a bil of foreclosure had been filed, with the demand of rupees 30,137-4, principal and interest, and after the expiry of the year of grace without discharge of the debt, this suit has been brought for possession, with wasilat from date of foreclosure, against all the defendants named, Khoodoomonee and Kaleed ass being included, as they had opposed the application for foreclosure on the ground of having shares, as will be afterwards explained, in the property sold. It will be convenient to state here the family descent from Bejyeram Mookerjee alias Becharam Mookerjee, the common ancestor. nee, to eight He had two sons, Sumbhoochunder and Essanchunder. action was opposed to Section IX. Regulation XV. of 1793. The lower a court gave annas of the decree for 12 property in favour of plain tilfs, in rejec tion of the claim of one claimant, Khoodoomo annas and by assignment of 4 annas to the other, Kaleedass It was also held that the suit was not barred by Section IX. Regu lation XV. of 1793. This Court affirmed the judgment as regards setting Sumbhoochunder, who died in 1235 B. S., or 1828 A. D., left two sons, Ramlal and Hurreelal, surviving him, his second son Bishenlal having predeceased him. Essanchunder died in 1206, B. S., or 1799 A. D., leaving a childless widow, the defendant Khoodoomonee. Ramlal died after institution of this appeal, leaving a widow Ahungmonee, while Hurreelal left two sons, Chundernath and Kaleedass. Answers to this suit have been filed by Ramlal and Chundernath jointly, and by Khoodoomonee and Kaleedass jointly. The first party did not deny execution of the bill of conditional aside the claim sale, which had been duly registered; but they objected that, instead by Khoodoo monee to eight anuas, as she could not prove that she had any interest in it, the burthen of proof of which rested under the circumstances of the case upon her. This Court also held that the suit was not barred by Section IX. aforesaid: but it reduced the share of Kaleedass from 4 annas to 2 a. 13 g. 1 c. 1 k., which was all that he had in his answer claimed in the event of Khoodoomonee's claim being rejected. It was ruled that the principal sudder ameen should have confined Kaleeduss's share to what he set forth as his in the pleadings. A plea taken by plaintiff's in their appeal, that the mortgage was made to raise money in order to save the estates from sale and to buy a putnee talook, so that Kaleedass was not entitled to even the reduced share, was rejected, as it had not been so specifically set forth in the plaint as to admit of its being made an issue in the case. of receiving rupees 24,001, they had only received rupees 23,751, which was an infringement of Section IX. Regulation XV. 1793, so that the suit should be dismissed, while Khoodoomonee and Kaleedass set forth their different claims to shares as follows. The former asserted that the property in suit was bought by Sumbhoochunder, from patrimonial funds inherited from his and her husband's father Bejyeram Mookerjee, by the two brothers jointly; that her husband died in 1206 B. S., leaving her a widow, from which date she had lived with Sumbhoochunder, in joint enjoyment of the property then existing and subsequently acquired; she therefore claimed half of the estates now in dispute in right of succession to her husband, and denied the right of Ramlal and Chundernath to alienate beyond their own shares within the remaining eight annas. Kaleedass, on the other hand, said that his share depended upon what might be decided regarding Khoodoomonee's claim. Supposing it to be held that Sumbhoochunder had acquired the estate and that Khoodoomonee had no interest in them,, he asserted that in consequence of the three sons of Sumbhoochunder having 3rd share or 5 a. 6 g. 2 c. 2 k. each, he was entitled to of his father Hurreelal's share, or to 2 a. 13 g. 1 c. 1 k., and to the whole of Bishenlall's share, 5 a. 6 g. 2 c. 2 h., by gift from his widow Anundmoyee, and thus he claimed a moiety of the estates; but supposing that 8 of the 16- annas were assigned to Khoodoomonee, he would have only 2 as. 13 g. 1 c. 1 k., from Bishenlal and 1 a. 6 g. 2 c. 2 k. from his father Hurreelal, i. e. a half of the 8 annas left after such assignment to Khoodoomonee. It was also denied by both that the money lent had been appropriated, as alleged by plaintiffs, to the discharge of arrears and to purchase of the putnee referred to. This claim of Kaleedass was met by the plaintiffs in their replication, to the effect that he, Kaleedass, had been adopted as a son by Ramlal, so that he had lost his right of inheritance from his own father Hurreelal, whose whole share would thus devolve upon Chundernath, and also it was denied that Kaleedass could derive through Bishenlal, who had died before his father Sumbhoochunder, and whose share, therefore, in consequence of his having left a childless widow, had lapsed. The principal sudder ameen, having decided that Section IX. Regulation XV. of 1793, was no bar to the suit, by which he gave judgment in favour of plaintiffs against Ramlal and Chundernath, proceeded then to consider to what extent plaintiffs could obtain possession of the property claimed by them, and by Khoodoomonee and Kaleedass respectively. His decision was against the right of Khoodoomonee in toto, as he considered the three estates in suit to have been bought, after the death of her husband, Essanchunder, by |