Case remitted to the judge, with instructions that he will depute
a properly constituted ameen into the mofussil, for the purpose
of enquiring and reporting how much land is actually within the
boundaries given in the decree of March 1841, and how much is
actually in the possession of Ranee Surnomoyee under that
decree. If the two coincide, the ameen will make a map and
measurement of the same, and nothing more will be requisite.
If the land in the Ranee's possession be in excess of that included
within the boundaries entered in the decree, the ameen will then
map and measure the land covered by the decree in the posses-
sion of the Ranee, and that in her possession under, but not
covered, by the decree separately; and he will then take the
evidence of ryots living near as to the possession of the land in
excess of the decree, during a course of years, and make his
report, with all practicable speed, to the judge, who will then pass
whatever decision may seem to him just and proper,
10. Held that, under the circumstances of the case, on special ap-
pellant's not obtaining possession of the property leased to him,
it was quite competent to him to have sued Government for
damages on account of a breach of contract, but that the suit in
its present form will not lie; that plaintiff if he has any action
at all has it against the lakhirajdar, for whose benefit the sum
was paid and who was then in possession of the property. The
special appeal decreed, with costs,

...

11. The point at issue being whether certain lands belonged to
plaintiff's resumed and settled estate or to the defendant's un-
resumed holding, the judge's opinion, that a suit for rent and
not for possession should have been brought, was considered
erroneous, and the case was remanded for re-trial,

12 Suit for possession of a julkur leased to plaintiffs from the
year 1261, the same julkur having been held by defendants
under an indefinite potta for 1260.

The principal sudder ameen dismissed the suit, considering that,
though the defendants held the julkur on the footing of tenants-
at-will, six months' notice to quit was necessary.

Held on special appeal that, with respect to the first year of the
plaintiffs' lease, 1261, no question of notice can now arise, and
that, as a consequence of this suit, without further notice pos-
session should be awarded to plaintiffs,

13. Suit to recover certain land as belonging to the village of
plaintiffs, special appellants, which the defendants held as be-
longing to another village.

It was held by the zillah judge, that a decree of 1822 had definite-
ly determined the land to belong to defendants' village. A
special appeal, having been admitted to consider the sufficiency
of the judge's finding with respect to the decree of 1822, is,
on trial dismissed, as no misconstruction of that decision is
asserted, and the plaintiffs, special appellants, had failed to show
that the disputed land did not fall within the scope of the first
judgment,

...

14 Appeal rejected; plaintiff not producing any proof to rebut
the lease of lands granted to defendant in consideration of a
loan, which had been sold in execution of decree,

509

716

721

738

781

812

15. Held that the words "though it is admitted," which appear
in the decision of the principal sudder ameen, and which are
inconsistent with the latter part of his decision and opposed to
the answer of the defendants, were written erroneously; and
that as plaintiff was unable to prove his previous possession and
forcible ejectment from the lands claimed, the decision of the
principal sudder ameen, dismissing the suit, was correct,
16. Plaintiff's sued defendants for possession of 125 beegas of land,
situated in bheel Chattoor, of which they had been dispossessed
under an order passed under Act IV. 1840.

943-945

Held by the Court that the evidence produced by (plaintiffs) ap-
pellants was quite insufficient to establish their title to the land
in dispute, and that it was consequently unnecessary to put
(defendants) respondents to the proof of their title.

Decision of the lower court, dismissing (plaintiffs') appellants'
claim, affirmed, with costs,

...

17. It was adjudged by the appellate court below that a defend-
ant's possession was only on a conditional deed of sale, and not
as pleaded on an absolute one. At the same time that court
gave plaintiff a decree at once for entry on the property, instead
of leaving the case to be proceeded with under Regulation
XVII. of 1806. A special appeal was admitted to try if this
decision was correct.

Held that, as plaintiff came in under a primá facie good title as a
purchaser at a sale in execution, and as defendant had not
proved the deed of absolute sale he had set up as a better title,
the plaintiff was entitled to a decree for possession.

The order of the lower court upheld, but not for the reasons given
by it,

18. Held by the Court that the first issue arising out of the
pleadings in this case was, whether the plaintiff was dispossess-
ed by the defendant of the land which he alleges he has held
as lakhiraj, under colour of the collusive distraint suit between
the zemindar and a third party, or by the zemindar acting
under the provisions of Section X. Regulation XIX. of 1793.
If that issue be decided in plaintiff's favour, nothing more will
be necessary, and plaintiff must obtain a decree. Should that
issue be decided in defendant's favour, the second issue will be
whether plaintiff is entitled to be replaced by the court in the
possession from which the zemindar has ousted him.
Held also that, irrespective of the validity of his lakhiraj tenure,
plaintiff is entitled to be replaced in possession of the property
from which he was dispossessed by the defendant, if he can satis-
factorily show that his tenure does not fall within the class
mentioned in Section X. Regulation. XIX. of 1793, viz. that of
tenures created since the 1st December 1790, and that it conse-
quently is not one in which the summary powers of dispossession
without a suit in court, given by that law, can be exercised by a
zemindar.

Case remanded for re-investigation with reference to the remarks
made by the Court,

19. Plaintiff's suit for recovery of certain lands dismissed, in re-
versal of the judgment of the lower court. The argument that
plaintiffs were entitled to them, as an increment to their estate,

1072

1107

1162

by Regulation XI. of 1825, disallowed, as such averment was
not in the plaint,

20. The lower court was right in finding for plaintiff, who had
been forcibly dispossessed of his lands. Defendant's plea of a
conditional sale or mortgage of them by plaintiff was invalid,
inasmuch as the transaction had not been completed,

21.

22.

Held by a majority of the Court that, when a plaintiff seeks
to recover possession of lands from which he alleges himself to
have been forcibly ousted, he must meet a plea of limitation
urged by the defendants by proving, not only a right to the
land, but actual possession, within 12 years of the date of alleged
dispossession, as well as the fact of dispossession,

Suit for the recovery of land from which plaintiff is said to
have been forcibly ejected.

Held upon an issue of limitation that, deducting the period of plain-
tiff's minority, the suit was not barred.

Held that, though a summary order in favour of plaintiff was passed
under Regulation XLIX. of 1793, for a portion of the land, as
that order was not carried into effect, and 30 years had passed
from its date, plaintiff was bound to prove his title.
Failing proof of title on the part of plaintiff, the suit was dismissed,
in reversal of the judgment of the lower court,
23. Plaintiff, an auction-purchaser, sued defendant for a certain
portion of land as being situated within her purchased estate.
The defendant claimed the land as belonging to his estate, and
produced his decree, showing that, in a suit between the former
owner of the plaintiff's estate and himself, he had obtained a de-
cree for the very lands now in dispute.

The lower court, on the strength of those documents, dismissed
plaintiff's claim.

Held on appeal that plaintiff, an auction purchaser, is entitled to
have the point in issue between her and the defendant decided
on the evidence brought forward by her, and that the decree
passed in the suit to which she was not a party, though of
weight, is not conclusive evidence in this case.

The case remitted for re-investigation with reference to the Court's
remarks,

24 Plaintiffs sued for 150 beegas of land as a portion of 250 bee-
gas in Bhootgharee, of Soofeakoondee, turruf Jonardeho, per-
gunnah Taragonea, of the Mahomed Shai estate in zillah Jessore,
and as non-alluvial.

Defendants claimed the farm as Komardeho in chur Bhowanund in
zillah Nuddea and as alluvial.

The principal sudder ameen thought the moonsiff's local enquiry
and the evidence shewed the land to be alluvial, and to belong to
defendants as claimed by them.

On the appeal of the plaintiffs, the Court held that the moonsiff's
map being admitted by both parties to be correct, the first
thing for plaintiffs to do was to identify the land in suit on it;
then to shew that the proceedings of the revenue authorities
demarcating the boundaries of the two zillahs and relied on by
plaintiff's proved their case, or that other evidence did so. The
plaintiffs' case not being proved in this way, or by sufficient

1183

1233

1254

1263

1282

testimony otherwise, and it not being shewn by them that the
land was non-alluvial, the Sudder Dewanny Adawlut would not
disturb the order of the court below nor defendants' long pos-
session, and dismissed the appeal, with costs on appellants,
25. The survey officers on defendant's representations re-sur-
veyed the lands of his estate, and included some lands not
marked in their first survey. Their credit of his objections and
of his actual possession was thus expressed. In a suit to re-
annex those lands to plaintiff's estate, the onus probandi falls on
plaintiff. As he shewed neither title nor possession, claim
dismissed; lower court's order upheld,

26. Plaintiff sued for recovery of excess land said to have been
taken by defendants in execution of decree. These pleaded
Construction No. 1129 in bar of the suit, and repeated the plea
in special appeal, as it had been overruled by both the lower
courts. Held by the majority of the Court, that the suit would
have been barred by the Construction, but for an admission
by defendants on a certain point, on which no decision having
been passed, the case was remanded,

27. Plaintiffs in this suit claim to recover certain lakhiraj land
from which they had been ejected by the zemindars, defendants,
and both the lower courts have restored plaintiffs' possession.
The special appeal was admitted to try whether the validity of
the lakhiraj tenure should have been enquired into.
Held that, as the zillah judge found that the lakhiraj tenure of
plaintiffs, created by a grant of 1164, substantially existed, and
as, even if the tenure were adjudged subject to assessment, the
land, by Section VI. Regulation XIX. of 1793, is to be consi-
dered as a dependent talook, the proceedings held below were
not defective, and the special appeal was dismissed,
28. In a suit for possession and the cancellation of an alleged
mouroosee potta, the lower court held that the potta could not
be considered, as it was not stamped. The alleged pottadar
did not appeal from this order. The right of ownership was
admitted to be with plaintiffs. The case then rested on the
alleged dispossession, the oral testimony to which was insufficient
and unsatisfactory, and on two documents, neither of which
aided respondents' case and one of which did not mention the
potta. The probabilities of the case were also against the
respondents, i. e. no complaint of the alleged dispossession at the
time; the fact of this suit being 11 years, 11 months, and some
days after it; no accounts to prove respondents' possession before
the date alleged as of dispossession, or defendants' possession
since. Appeal decreed,

1288

1313

1373

1380

... 1392

29. Claim to land, on the allegation that it had been cut off from
the Nuddea bank and attached to the Burdwan bank of the
Bhageruttee river by the intersection of that stream, dismissed,
in affirmation of the order of the court below; as it was proved
that the land in suit was on the western side of what the Court
held to be not the new, but the old channel of the river,
30. The lands in suit were resumed as lakhiraj, the appellants,
who are defendants in this case, having been defendants in the
resumption case, but they were released by the special commis-

...

1396

sioner on the appeal of plaintiff in this suit, who proved that the
lands were not lakhiraj, but mal.

This having been the decision of the special commissioner, the
Court, in affirmation of the judgment of the lower court, decreed
possession of the lands to plaintiff as part of his malgoozaree

estate,

31. Where the lower courts had treated the case between the liti-
gants as a question of the validity of the title of the lakhirajdars,
defendants, whereas the case was a simple boundary dispute, and
had refused to accept documents offered by the petitioners on the
ground that they had not been filed before the collector, to whom
the case had been submitted for report under the provisions of
Section XXX. Regulation II. of 1819, it was remanded with
instructions to the first court to draw up a fresh proceeding
under Section X. Regulation XXVI. of 1814, receive such further
evidence as the parties wished to file, and dispose of the case
as a boundary dispute, irrespective of any question as to the
validity of plaintiff's lakhiraj title,

32. On the general merits, held on the evidence, especially the
Mahratta papers, of 1211, recording the mokuddumee as plain-
tiff's ancestors and the zemindar's admission of the mokuddumee
by purchase of it as such, and on the fact of the revenue authori-
ties having ordered the profits of the mokuddumee to be made
over to plaintiff on his attaining his majority, that plaintiff was
entitled to a decree; and that, as defendant's possession was
only that of trustee, it was no adverse title barring the claim by
limitation,

...

1. Case remanded to the lower court, because, as between landlord
and tenant, unless special engagements protect the latter, the
former has a right to treat him as tenant-at-will and to demand
a fresh agreement annually; whereas the judge threw upon the
former the burden of proving the latter's lease was temporary,...

LEASE.

1. Suit for possession of a julkur leased to plaintiffs from the
year 1261, the same julkur having been held by defendants under
an indefinite potta for 1260.

The principal sudder ameen dismissed the suit, considering that,
though the defendants held the julkur on the footing of tenants
at will, six months' notice to quit was necessary.

Held on special appeal that, with respect to the first year of the
plaintiff's lease, 1261, no question of notice can now arise, and
that, as a consequence of this suit, without further notice posses-
sion should be awarded to plaintiffs,

...

2. Held from the perusal of the terms of the lease granted to
special appellant, that no fixed period was mentioned during
which an uniform rent was to be paid, and as no words appear
on it from which it could be inferred that the zemindar had

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1898

62

738