On the 1st point, the Court observe that the petition required by Clause 3, Section 3, Regulation VII. of 1825 is a necessary preliminary only to the reversal of a sale on a summary enquiry, which summary enquiry is also further described in Clause 1. Section 5 of the same Regulation, and that there is nothing to prevent the institution of a regular suit, the object of which is to reverse a sale on the ground of irregularity, whether such petition has been presented or not. The Judge therefore was not justified in declining to hear the plea. On the 2nd point, the Court are of opinion that the prescribed proclamation in the Moonsiff's Court cannot be dispensed with, and that a sale effected without the observance of this necessary condition is invalid. In reference to the 3rd point, there can be no doubt that the sale of mouzah Boolah, on the 15th November, and the sale of mouzah Zynabad, on the 31st December 1844, were invalid, since the previous sale of these two villages, held on the 8th October 1844, had not, up to the time of the second sales, been cancelled. The same property cannot, under ordinary circumstances, be sold twice over in execution of decrees. In regard to the 4th point, it appears that execution of decree had been taken out against the nine defendants in the suit, only one of whom, Meer Dad Khan, is stated to have died previous to the sale. This is not the state of things contemplated by Section 15, Regulation XXVI. of 1814, which provides for cases in which "enforcement of the decree shall be solicited against heirs or representatives." Neither is it clear that the decreeholder had any knowledge of the death of Meer Dad Khan at the time of the sale. Upon the whole, the Court are disposed to reject this plea as a ground for annulling the sale. The decisions, however, on the second and third points, in the certificate, are fatal to the validity of the sales of the 15th November and 31st December 1844, which must be cancelled accordingly. The decrees of lower Courts are reversed, and a decree is given to the plaintiff. Present: CASE No. 9 OF 1851. Special appeal from the decision of R. J. Tayler, Esq., Judge of Jounpore, dated 23rd April 1850. TULLOO MISSER, (Defendant), Appellant, versus SHEO KUOR AND PEM KUOR, (Plaintiffs), Respondents. THIS suit is brought for rent of certain lands in mouzah Sudahee, talooqua Budlapore, the plaintiff claiming Rs. 40-11-3, as the annual rent, and the defendant maintaining that the amount had been fixed by the Settlement Officer at Rs. 23. The particulars of the demand, and the decretal orders already passed are to be found in the Judge's English decree. The lower Courts have decreed the sum claimed, the Judge being of opinion, that Rs. 40-11-3" was established as the jum"but on the application of the defendant, a special appeal was admitted to test the correctness of this decision. ma, The present suit has not been brought to enhance rent, or to reverse the settlement, but simply for rent according to the putwarree's wasil bakee, and the sum entered therein, though supported by the village papers and by witnesses, is opposed to a distinct order of the Settlement Officer, dated 26th December 1839. On that occasion the jummabundee was published for general information; several assamees objected, and amongst them was Gungai, or Gunga Dutt Misser, the father of the defendant, Tulloo Misser. The Settlement Officer, after due enquiry, declared the rent payable by Gunga Dutt Misser to be Rs. 23; and if the jummabundee was not altered accordingly, it ought to have been altered. Rs. 23 was the rent determined at the settlement after investigation, and until a regular suit is brought for enhancement, the amount cannot be questioned. *Section 9, Regulations VII. of 1822, and IX. of 1833. The Judge does not seem to have been aware of the importance of the decision of the Revenue Authorities, dated 26th December 1839. He notices, without quoting the date, that "the jummabundee was modified," and then proceeds, without a single reason assigned, to record a decree in direct opposition to the modifica. tion alluded to. The Court reverse the decrees of the Courts below, and dismiss the claim of the plaintiffs. CASE No. 239 or 1850. Special appeal from the decision of J. T. Rivaz, Esq., Judge of Benares, dated 23rd July 1850. GYANEE, (Defendant), Appellant, versus TAJ MOHUMED, (Plaintiff), Respondent. THE printed decisions for July 1850 contain the particulars of this case. A special appeal was granted to try, whether it was competent to the lower Courts, under the peculiar circumstances of this case, and with reference to judicial usage, to pass a decree against the defendant Gyanee. The Court are of opinion that the appellant was wrongly impleaded in this action. The liability of the police to suits for damages on account of injury wilfully done to individuals in executing, or, more properly speaking, in exceeding the order of their superiors, may not be disputable, but this liability does not divest the police of their police character, and, in ordinary cases, is not capable of extension so as to reach unofficial persons. The police having been present on the spot in this instance, for the purpose of carrying out an order of the Magistrate, all authority was vested in them, and whoever else was present and taking ány part in the matter, must, necessarily, be presumed to have acted under the orders of the police. The decision of the Zillah Judge is modified, and the suit, as against the appellant, Gyanee, dismissed. The 21st April, 1851. Present: CASE No. 225 or 1850. A. W. BEGBIE, H. LUSHINGTON, Judges. Special appeal from the decision of GOWREE PERSHAD, (Plaintiff), Appellant, versus RAMDIAL PANDE AND OTHERS, (Defendants), Respondents. THE plaintiff sued to establish his right to certain land (11 beegahs 17 biswahs) as belonging to the village of Greewa, of which the plaintiff is a sharer, and he pleaded that the defendants contrived at the settlement to get the land in dispute measured within the ruqbah of their village, Mehdea. The defendants replied that the land had already been judicially declared to belong to them. The Sudder Ameen decided in favor of the plaintiff. In appeal, the Principal Sudder Ameen remarked, that the plaintiff when formerly sued by the present defendants denied that the land belonged to the plaintiffs' village Greewa. The proprietary title had already, the Principal Sudder Ameen added, been adjudged to the defendants. A special appeal was allowed to try "whether the Principal Sudder Ameen, in dismissing the claim of the plaintiff, has not omitted to advert to the fact that the land, of which possession is sought, was declared by the Court of first instance to be land other than that which had previously formed the subject of dispute between the parties, and, consequently, whether the Principal Sudder Ameen, in assuming the lands to be identical, has not decided in error.' " The Court are of opinion that the Principal Sudder Ameen has fallen into the mistake on which the certificate of special appeal is founded. The Sudder Ameen, before whom the case first came, has ruled very distinctly that the pleas of the defendants are unsustainable, because the land formerly adjudged to them is not this, but other land. The Principal Sudder Ameen, without taking this finding into his consideration, has been content, to assume the identity of the land now and, formerly disputed. The unavoidable conclusion to which any one reading the Principal Sudder Ameen's judgment would come, is, that the Principal Sudder Ameen was not aware of the distinction drawn by the Court of first instance. A decision so ímperfect must necessarily be set aside; and the suit is remanded to the file of the Principal Sudder Ameen, in order to its retrial. The 21st April, 1851. Present: CASE No. 213 or 1850. A. W. BEGBIE, H. LUSHINGTON, Judges. Special appeal from the decision of GYA PERSHAD, (Plaintiff), Appellant, versus GOWAL DASS, (Defendant), Respondent. THE report of this case will be found at pages 39 and 40 of the printed decisions for Zillah Cawnpore for the past year. A special appeal was admitted" to try whether the ground on which the Judge's decision has been made to rest is singly sufficient to support it, no advertence having been had in the judgment to the oral evidence on either side, or to the reasons of the decision of the lower Court, which has been reversed." The Court, as at present constituted, are unable to concur in the doubts expressed in the certificate as to the sufficiency of the reasons assigned by the Zillah Judge for his decree. They do not think that it can be assumed that the Judge did not advert Ito the oral evidence on either side, or to the reasons of the decision of the lower Court." On the contrary, it appears to this Court that the Judge did weigh the evidence before he formed his opinion, that he altogether distrusted the evidence adduced by the plaintiff, and saw reason to believe that the signatures of some of the attesting witnesses had been affixed to the bond subsequently, and not at the date which the bond bears, a supposition which, if correct, is quite sufficient to overthrow the plaintiff's case, to give to the bond the complexion of fraud and forgery, and to brand the witnesses thereto as perjurers. Taking this view of the case, the Zillah Judge could not decide otherwise than he has done, and it is not within the province of this Court, in special appeal, to express any opinion as to the merits of the case, or the correctness of the Judge's conclusions in regard to facts found by him. The appeal is dismissed with costs. |