The defendants, meanwhile, retained possession. On the 28th September 1839, the plaintiff sued to be put in possession, on the plea that the contract had not been fulfilled, and was nonsuited on the 22nd November 1842. The suit is now revived, and has resulted in the judgment abovementioned. A special appeal was granted to try, whether the Court below has not erred in pronouncing the suit barred by lapse of time. The Court find the Principal Sudder Ameen's decision to be wrong. The plaintiff's cause of action arose at the end of 1244 Fuslee, which corresponds with the 14th September 1837. The present suit was brought on the 11th September 1849, and may therefore be heard, having been instituted within the legal period of twelve years. The judgment of the Principal Sudder Ameen is annulled, and the suit is remanded to his file, in order, that he try it on its merits. CASE No. 54 of 1851. H. LUSHINGTON, } Judges. Special appeal from the decision of OOGUR RAI AND OTHERS, (Defendants), Appellants, versus LIPPUN RAI AND QADIR BUKSH, (Plaintiffs), Respondents. THE plaintiffs claim possession of 14 gundahs 1 butt, mouzahs Hurkur, &c., by descent. In 1849, one Mussumat Beerjee, the widow of a Lippun Rai, not the present plaintiff, sued both the parties to this suit, and obtained a decree for 14 gundahs 1 butt share in the puttee against which the present claim is brought. The decree of the Moonsiff is dated 19th August 1849, and rests principally on the fact, ascertained after investigation, that the Lippun Rai, deceased, whose widow had brought the action, was the Lippun Rai whose name appeared in the Settlement papers. Lippun Rai, now plaintiff, was a defendant in that suit, though he did not answer; and as that decree is in force, Lippun Rai, plaintiff, can. not support his claim by any reference to the Settlement. The present suit is brought against the plaintiffs, co-defendants in the former suit, and also against Mussumat Beerjee herself, who confesses judgment, for exactly the same amount of share in the same puttee as was contested in the former suit; not, apparently, for the same thing: the Moonsiff dismissed the claim on the ground of long dispossession, but the Principal Sudder Ameen, considering possession proved, passed a decree in favor of the plaintiff, and quoted, in support of his opinion, the entry in the Settlement papers (see Tehseeldar's Report 25th December 1835), which, in 1849, had been declared to refer to the deceased husband of Mussumat Beerjee. The plaintiff, Qadir Buksh, purchased from the other plaintiff half of the property claimed, twelve days before the institution of the suit. The certificate of admission refers two points for the consideration of the Court. 1st. Whether the form in which the suit has been brought involves champerty. 2ndly. Whether the conflicting opinions of the Moonsiff in 1849, and the Principal Sudder Ameen, in the present case, in regard to the individual referred to by the tehseeldar's report as Lippun Rai, do not bring these suits within the meaning of Section 7, Regulation XIX. of 1817. The Court do not consider that the simple facts of purchasing a share of a chose in action, and then suing jointly with the seller, constitute champerty, as understood in this country. In all the reported cases there is to be found some sort of contract by which the transfer was made, on condition that funds were advanced by the transferee for the prosecution of the suit, whereas no such condition appears in the case before the Court. Champerty, maintenance and common barratry are even criminal offences by the law of England, but it is always supposed that there has been some "officious intermeddling", which tends to keep alive strife, and disturb the repose of society, some "inciting and stirring up of disputes," or the like, and the Court find nothing of this sort in the conduct of the present suitors. In regard to the second point, they are of opinion, that the two orders are inconsistent. The Lippun Rai of the settlement cannot be at once the deceased husband of Mussumat Beerjee and the present plaintiff, and if the claims of the plaintiffs in the two suits and the decrees of the two Courts had all been based upon this entry, it would have been necessary to proceed under the law quoted in the certificate. The Court, however, have some doubt whether this is exactly the case. The plaintiff in his petition of plaint does not assert that he is the Lippun Rai of the settlement, and the admission of the Principal Sudder Ameen that he is so, has the appearance of having been subjoined to the other grounds of his decision. On the other hand, it is an addition so very important, that from the moment it is even mentioned, it becomes necessarily the principal ground of decision. The share claimed too is of exactly the same amount, and in the same puttee, as the share of Mussumat Beerjee's deceased husband. The amount itself, "14 gundahs 1 butt", suggests the idea of identity; and the idea acquires force, when we observe that the plaintiff has not shown by what descent he is entitled to this 14-gundah 1 butt share. His vakeel cannot even state how his client arrives at this particular amount, if it be not the 14 gundahs 1 butt of the settlement. The koorseenamah filed by the plaintiff throws no light upon the subject, and is, moreover, manifestly incorrect. The putteedaree furd, prepared, as is stated, according to the tehseeldar's kyfeeut, is not with the mist, nor is there any copy of the settlement roobakaree. Under these circumstances, the Court think it advisable to remand the case to the file of the Principal Sudder Ameen, that he may hear it de novo, and, in the event of his again determining in the plaintiffs' favor, may distinctly specify in his decree what it is that he awards, and from whom it is to be taken, bearing in mind that the identity of Mussumat Beerjee's deceased husband with the Lippun Rai of the settlement is a fact already determined by the decree of the Moonsiff in 1849, and no longer open to discussion. The decision of the Principal Sudder Ameen is annulled, and the case remanded to his file accordingly. Present: The 14th April, 1851. CASE No. 216 or 1850. Special appeal from the decision of R. J. Tayler, Esq., Judge of Jounpore, dated 16th May 1850. DEEN SINGH AND MUNNEE SINGH, (Defendants), Appellants, versus RANEE SHEO KUOR AND OTHERS, (Plaintiffs), Respondents. THE Judge's decision is to be found in the usual place amongst the printed reports. It is to be observed, however, in reference to the Judge's remark, that the " Settlement had been upset," that the settlement had not been upset. The proprietary right had been transferred by a decree of Court, and the decreeholders were admitted to engage for the revenue. The village is mouzah Dugowlee in talooqua Budlepore, the history of which is well known. The suit is brought nominally for arrears of rent; but the object of the suit is to substitute a certain rate of rent, alleged to have been formerly paid, for the rate recorded in the settlement jummabundee. At first sight then this would appear to be a suit for enhancement under cover of a suit for rent, as in the case of Tulloo Misser, versus Sheo Kuor of Budlepore, decided by the Sudder Dewanny Adawlut on this date, and should be dismissed; but, on referring to the settlement papers, it appears that the rate entered in the jummabundee was confessedly a favorable rate, “ bah mojib parta," not a pergunnah rate, or rate such as was paid for similar adjacent lands. The defendants were the zemindars with whom the settlement had been made, and who were ousted by the decree of the Civil Court already referred to, and the jummabundee had been prepared by themselves. In seeking under such circumstances to substitute the rent formerly paid to Sheo Lall Doobé, for the rate by " purta" recorded in the jummabundee, the plaintiffs have not, in the opinion of the Court, necessarily incurred the penalty adjudged against them in the case of Tulloo Misser, appellant, though they have rendered themselves liable to it. The circumstances of this case are peculiar, and, upon the whole, the Court are content to regard it in the light of a suit, brought for enhancement of rent. The lower Courts have decided that the rent demandable from the defendants is that which was formerly paid to the plaintiff's ancestor Sheo Lall Doobé: but the point apparently considered to be at issue was, which of the two rates was the correct rate, that paid formerly, or that favorable rate recorded in the jummabundee? A special appeal was therefore admitted to try, "whether the Courts, in decreeing the rent paid in the time of Sheo Lall Doobé, have conformed to the law in the Sections 5, 6 and 7, Regulation V. of 1812." The Court are of opinion that they have not so conformed to the law. According to the provisions of the Sections quoted, the rate demandable by the proprietor is the pergunnah rate, or the rate payable for land of a similar description in the places adjacent, and this the Moonsiff, supported by the Judge, has taken no trouble to ascertain. The capabilities of the land have not been adverted to, although so long as this revenue operation is left by the law in the hands of Judicial Officers, the utmost deliberation and care are required. The Moonsiff has simply adopted an alleged former rate, without declaring it to be in his opinion a fair rate, whilst the defendants assert, that the land is not able to pay even the lower rate entered in the jummabundee. The decisions of the lower Courts are annulled, and the case is remanded to the file of the Moonsiff, in order, that he may determine the rent, with reference to the capabilities of the soil, and in accordance with the spirit of Sections 5, 6 and 7, Regulation V. of 1812. Present: CASE No. 2 OF 1851. The 14th April, 1851. A. W. BEGBIE, H. LUSHINGTON, Judges. Special appeal from the decision of A. C. Heyland, Esq., Judge of Ghazeepore, dated 11th June 1850. KHODA BUKSH KHAN AND OTHERS, (Plaintiffs), Appellants, versus AKBAR ALI AND OTHERS, (Defendants), Respondents. THIS suit is brought to cancel two auction sales, and the particulars of the case are to be found in the English decision of the Zillah Judge at the usual place. The suit was dismissed in the Courts below, on the grounds assigned in the decision referred to; and a special appeal, on the part of the plaintiff, was admitted to try the following points : 1st. Whether the plea of irregularity in the mode of conducting a sale cannot be entertained, unless a petition of objection has been presented under Clause 3, Section 3, Regulation VII. of 1825. 2ndly. If such plea can be tried, whether the omission to affix a copy of the usual proclamation in the Moonsiff's Court is not fatal to the validity of the sale. 3rdly. Whether the sale of this same property, on the 8th October 1844, in the execution of another decree, does not invalidate the two subsequent sales of the 15th November and 31st December 1844, the sale of the 8th October not having been cancelled until the 1st February 1845. 4thly. Whether the sale of the property as Meer Dad Khan's, is legal, he having died before the estate was sold in execution, and notice not having been served upon his heirs as required by Clause 8, Section 15, Regulation XXVI. of 1814. |