ADMISSION,

Certain admissions as to succession said to have been made in
an Act IV. case, not conclusive on the point. Case returned
for more enquiry,

2

2 Plaintiff sues Gobindram, the purchaser and subsequent mort-
gagor, for possession, with mesne profits, of 94 villages of talook
Russoolpore, in virtue of a conditional sale become absolute.
Gobindram, defendant, alleges that he was the real purchaser
and mortgagor, states his inability to pay the money due, and
prays that plaintiff may be put in possession of the mortgaged
property. The defendants Soorujbuttee and Chunderbuttee
allege that Gobindram was their servant, and that the sale and
mortgage were made in his name but with their money; that
they consequently were the real purchasers and mortgagors, and
have sold their rights to Syed Ahmed Alee and Keramut
Hossein, who allege also that they are the purchasers and that,
as they have deposited the principal due to plaintiff, the suit
should be dimissed.

On appeal, from the evidence on the record the Court was of
opinion that the defendant Gobindram purchased and after-
wards mortgaged the property on his own account; that subse-
quently, for some reason or other, in collusion with the
defendants, Chunderbuttee and Soorujbuttee, he executed the
ikrarnama upon which the alleged benamee purchase is based,
and that he has now seen reason for receding from the purchase
which he then fraudulently set up against the plaintiff in this
suit; that consequently as the (defendants) appellants are neither
the mortgagors nor their representatives, they are not entitled
to redeem the mortgaged property. The decision of the lower
court is consequently affirmed, with costs.

3 In consideration of a loan made by the plaintiff in this suit. the
estate of defendant was leased to him, and, after providing for
the ordinary profit derivable to plaintiff as farmer, it was stipu-
lated that the rent payable to defendant should be appropriated
to the liquidation of the loan. Subsequently plaintiff was
ousted, and this suit is laid to recover the profit due to him as
lessee as well as the balance of his debt.

Defendant, respondent, admitting the execution of the lease,
denies the payment of the loan as asserted therein: and it was
held that the legal presumption was in favour of payment, and
that the onus of proving non-payment was in the first instance
with respondent.

Held that respondent had failed to establish his special plea: and
moreover that (plaintiff) appellant, both from positive evidence
and from subsequent written recognition of the original deed
by respondent, had established his case.

4. The principal sudder ameen dismissed the plaintiff's case, on
the ground that by plaintiff's own statement the law of limita-
tion was a bar to the hearing his claim.

The Court held that there was no admission by plaintiff of defend-
ant's adverse possession in the proper and legal sense of the
word; but that all that plaintiff stated was that defendant
was in possession as surburakar only, and not as a rightful
proprietor, or as a proprietor at all.

9

41

The case was remanded that the conflicting title to the proprietor-
ship might first be tried, and then the law of limitation applied,
if found applicable,

...

5. The lower appellate court had dismissed the petitioner's suit
in toto, notwithstanding admission of a balance of rupees 155-1-8
and non-proof of a remission of rupees 100 pleaded by special
respondent. Judgment modified accordingly,

6. This suit being instituted to recover possession of a putnee
talook, which the plaintiff, special appellant, professed to have
purchased, was dismissed by the zillah judge on appeal: and
the special appeal was admitted to consider the effect of the
admission of one of the vendors.

Held that, without denying plaintiff the benefit of any admission
made by the vendor referred to, the finding of the judge upon
the evidence is conclusive that the sale had not been made at
the time or in the manner set forth by the plaintiff, and the
special appeal dismissed,

7. Held by the majority that defendant's admission of certain
old rents being due gave to the plaintiff a new start for his
claims to them under the limitation law.

The award of interest on a doul-kistbundee by the lower court

was correct.

8. Held that; as defendants admitted plaintiff's right to 5 annas
of the property sued for, he is clearly entitled to a decree for
that portion of the property. As. however, defendants raised
objections to the right of plaintiff's vendor to 10 annas of the
property, the share sued for, the principal sudder ameen, if he
thought plaintiff's evidence insufficient, should have dismissed
plaintiff's claims to all above the 5 annas share, and not have
nonsuited it, because a supposed necessary document was not
on the record. Case remanded for re-investigation with refer-
ence to the above remarks,

See Evidence, No. 8.

Rent, Enhancement of, No. 5.

63

525

541

761

1199

Land, Possession of, No. 26.

AGENT AND PRINCIPAL.

1. Certain goods having been bought for A by his agent B, and
a decree for the price having been given against A, held that the
agent B is not legally liable to the seller,

2. Plaintiffs sued to obtain possession, with mesne profits, of 15
cottas of land held by defendants without authority, and there-
fore as trespassers over and above that to which as tenants they
were entitled.

Defendants pleaded a right to possession of a portion of the land
sued for, by purchase from a ryot, and a right to 12 cottas under
a hookumnama given to them by plaintiffs' agent and granting
them possession on payment of a yearly rent of rupees 6.
The lower court held that the excess land, which defendants claim
to hold under a hookumnama from the gomashta, was held with-
out any title, inasmuch as the gomashita in granting it had
exceeded his authority.

414

The judge on appeal reversed the order of the court below.
Held in special appeal that the hookumnama, without the potta,
was, on the supposition that the gomashta had authority, suffi-
cient to create a tenancy from year to year, and to perfect de-
fendants' title, which would only be further evidenced by a
subsequent potta.

Held also generally that the local agents of absentee proprietors
must be considered to be general agents for their employers,
and that there is a delegation to them to do all acts connected
with the management of the property of which they are the
agents; that consequently a principal is bound by the acts of
his agent done within the scope of that general authority; and
if that general authority be limited by private instructions and
directions prohibiting the exercise of it under particular circum-
stances, such instructions, if unknown to the party dealing with
the agent, cannot defeat his acts and transactions done under
the general authority vested in him.

Held that in the present case the creation of defendants' tenancy
was within the scope of the general authority of the local agent,
which was not in any way limited within the knowledge of the
defendants, and that it consequently must be upheld. Special
appeal dismissed, with costs,

3. Arrears of rent having been realised from special appellants by
a summary suit carried on by the agent of the zemindar, and
the summary decree having been set aside by a regular decree,
it is held in special appeal that, whatever disputes may have
existed between the zemindar and her agent, the former should
be held answerable to special appellants to repay the rent irre-
gularly levied by the latter,

The question raised in this case was, whether the land in dispute,
being new alluvion, should be held, under Clause 1, Section IV.
Regulation XI. of 1825, to be increment to the tenure to which
it was attached; but as the law cited referred to navigable rivers,
and the land now sued for occupied the dried bed of a river, the
point raised was held not to apply,

Suit to assess 16 beegas newly accreted upon a valid lakhiraj grant
of 50 beegas, plaintiff being putneedar of the village to which
the latter belongs.

Held by a majority of the Court that the claim is opposed to the
policy of Regulation XI. of 1825, which declares that alluvion
shall be an increment to the tenure of the person to whose land
it is annexed; and that the lakhirajdar is entitled to the new
land, liable to be assessed for public revenue, but not by the
putneedar, plaintiff,

See Land, Possession of, No. 29,

1547

1766

1774

1836

APPEAL.

1. The appeal to the principal sudder ameen having been solely
on the point of costs, the principal sudder ameen was not
right to adjudicate other matters, involving the merits of the
case, on which no appeal was before him. Case remanded, to
be tried by the principal sudder ameen on the point on which
the appeal was made to him,

2. Plaintiff, special appellant, in February 1849, purchased, in
execution of a decree, the rights of Tarineesunkur Roy in 8
annas of an under tenure; subsequently, that is, in December
1819, one Ramkanye Dutt purchased the same rights in the
same property in execution of a summary decree. Plaintiff
then sued the zemindars who instituted the summary suit,
Ramkanye Dutt and others, for the purpose of having the sum-
mary suit and sale under it declared fraudulent.

The court of first instance decreed in plaintiff's favour. The prin-
cipal sudder ameen, on the appeal of one Ramkanye Roy who
had, subsequently to the purchase of Ramkanye Dutt in execu-
tion of the summary decree, purchased the 16 annas of the
tenure, reversed the decision of the lower court.
Held on special appeal that it was not competent to the principal
sudder ameen, under the circumstances, to admit the appeal of
a third party not before the court, to set aside the decision of
the lower court in favour of plaintiff, the petitioner before the
court.

The decision of the principal sudder ameen reversed, and the or-
der of the court of first instance affirmed, with costs,

3. The zillah judge having disposed of the point which on the
admission of this appeal, he was supposed not to have tried, the
appeal is dismissed,

4. Order of remand on application for special appeal. The lower
appellate court should have remitted the case to the first court
for trial on the merits, when it decided that that court had
jurisdiction to try it,

5. The suit of petitioners having been dismissed by the zillah
court, the question arose whether, with reference to the terms of
the decree, a summary or a regular appeal should be preferred.
Held that the order of dismissal was made upon the evidence, and
the summary appeal is dismissed, but under the circumstances,
the period of one month from the date of this order is allowed
for the presentation of a regular appeal,

6. Defendant did not appear in the lower court. A decree ad-
verse to him was passed by the moonsiff. He appealed and
filed some documentary evidence, which was admitted by the
principal sudder ameen, and the appellate court, after examining
this fresh evidence, nonsuited the (plaintiff) respondent.
Held that, when a defendant does not appear in the court of first
instance, he is entitled to appeal only on the record and cannot
in appeal be permitted to adduce evidence not filed in the lower
court. The appellate court should decide the appeal on the re-
cord, as received from the lower court, and should not admit

60

86

150

236

331

and dispose of the case on evidence not before the court of first
instance. The case remanded to the principal sudder ameen to
try the appeal irrespective of the documentary or other evidence
adduced by the appellant in his court,

7. Special appellant obtained a decree in the court of first instance
both for a howala and neem-howala.

An appeal was preferred by the neem-howaladar alone, when the
judge dismissed the whole suit.

Held that he could not set aside the judgment of the first court
recognising the howala tenure. So much of this decision as
disallowed that tenure was therefore reversed, and the portion
of it relative to the neem-howala affirmed, as it was plain that
he had accepted certain documents as proof of it,
8. A claim was partly decreed and partly dismissed. Defendant
appealed against so much of the decision as affected him. The
appellate court re-opened the whole case and decreed the whole
of the plaintiff's claim. Held that the spirit of the provisions
of Act XV. of 1853 is applicable to appeals before the lower
courts; and that, where a plaintiff does not appeal against the
order of a court dismissing part of his claim, the decree cannot,
in the absence of such appeal, be amended in his favour,
9. The appeal was withdrawn, being founded on an error,
10. The order of the judge dismissing petitioner's appeal for
omission to name as respondents all opposed to him below,
reversed, as the parties referred to had appeared to defend the
appeal,

11. Plaintiff sued defendants summarily and obtained a decree.
On defendants' bringing a suit in a civil court for the reversal
of the same, the moonsiff modified the decision of the revenue
authorities, reducing the sum due to rupees 21, and also can-
celled the sale. Against this decision plaintiff did not appeal.
The sale purchaser, who had been made a defendant, did appeal
from that portion of the order reversing the sale; and the prin-
cipal sudder ameen found that the sale was made in legal form,
and, as there was a balance due by the petitioner, against
which finding he had not appealed, the sale must stand good:
he consequently reversed the order of the lower court.
Held, on special appeal by the plaintiff below, that, as he had ac-
quiesced in the decision of the moonsiff, declaring rupees 21 to
be due, and as the sale was made in due legal form, no ground
exists for interfering with the decree of the principal sudder

ameen.

12. Held, in conformity with several decisions of this Court,
that an appellate court should not interfere to alter a decision
in favour of a party not appealing against the decision of a lower
court,

431

617

662

722

740

1022

... 1115

13. The plea urged by plaintiff, appellant, in his plaint was that
the potta was fictitious, whereas in appeal the ground set forth
for its cancelment was that the original lessee was dead. The
Court refused to allow this varied plea, and held that, as the
potta had been recognised for 19 years, it could not be impugned
on account of fraud,

1158