CASE No. 27 or 1851.

Special appeal from the decision of A. Lang, Esq., Judge of Allahabad, dated 28th June 1850.

SYED SAFDUR ALI, (Plaintiff), Appellant,

versus

SYED ABOOL QASIM AND OTHERS, (Defendants), Respondents. THE Judge's report on this case is to be found at page 160 of the printed decisions. It does not state the case exactly, and in particular the Judge appears to have been misled by the deci

*Bukshee Ram,

versus

Sheo Buksh.

11th January 1848.

sion of this Court noted in the margin. That decision was subsequently reviewed and superseded. The new decision in the case is dated 23rd August 1849, and it declares that the division or separation of interests, in pure putteedaree mehals, can be effected only under the provisions of Section 5, Regulation IX. of 1811. By this Section, any putteedar in the occupancy of a specific quantity of land in a pure putteedaree village may require the Collector to "allot the separate assessment of such share."

The village now in question, mouzah Kaharah Khas, is stated by the Judge to be imperfect putteedaree. The particulars, however, recorded in other parts of the decree, in regard to the constitution of the village, render it doubtful, whether the term "imperfect putteedaree" has been accurately used. So far as the cultivated lands are concerned, the village appears, from the settlement papers, and by the admission of the parties, to be pure putteedaree. There are, according to the khusreh and roobakaree of settlement, 25th June 1839, 183 beegahs 17 biswahs shamilát land, designated "zemeen mooshturrikeh, baghat, purtee judeed, talao, abadee, bheet, roh, malee," and it is the plaintiff's share in the shamilát, together with a separate "allotment" of the assessment on his entire holding, which is the object of the present suit. It is true that the plaint sues for a division under Regulation XIX. of 1814, but the Court regard this as a very immaterial error. The contents of the plaint show clearly that the plaintiff did not desire a division under Regulation XIX. of 1814. He desired his share of the shamildt lands, and separate responsibility.

Although the whole of the 183 beegahs 17 biswahs are recorded as shamilát, yet, on a close examination of the khusreh, it appeared that 76 beegahs out of the 183 becgahs were entered with specification of the puttee to which they belonged, and one field is entered as belonging to both the parties to the present suit: without more information than the mist supplies, the Court are unable to reconcile these apparently conflicting statements. It is however fairly presumable that the circumstance does admit of explanation, for nothing can be clearer than the statement in the settlement roobakaree, that the 183 beegahs 17 biswahs are held in joint tenancy. The Court will consider them to be so, though the fact is not to be understood as one of the points ruled by this decision.

At paragraph 167, Section 3 of the printed Directions issued by Government for the use of the Revenue Department, is the following sentence.

"The law has provided that all co-parceners, or bodies of co-parceners, who wish to free themselves from joint responsibility, and to become sole possessors of their own property, should have the power of claiming the separation of their portion of the estate, and its formation into a distinct estate or mehal."

The Court recognize this as a correct enunciation of the law. The right to a separation is inherent, as the law now stands, in every proprietor. It remains only to determine the manner in which this right shall be exercised. The rules contained in Regulations IX. of 1811, and XIX. of 1814 are applicable to certain known predicaments, amongst which the case before the Court is not to be found; but should any cases unprovided for arise, the manner of effecting the separation must depend upon the specific interest held by the applicant; and this" specific interest," under Section 5, Regulation IX. of 1811, it is the province of the Civil Courts to determine. When this has been done, it is the duty of the Collector, by Section 3, Regulation XIX. of 1814, (which Section has evidently general application) to make the butwarrah; but by Section 35, the Government may issue instructions in cases "unprovided for by the Regulations," and some instructions of this nature are found in paragraph 293, Section 5 of the Directions already referred to, which contains these words. "The rules are generally applicable to its performance" (i. e., butwarrah) "under orders of the Civil Court, but many of the steps of the process, which are ordinarily submitted to the wishes of the parties, or ruled by the order of the Collector, may come under the cognizance of the Court." The Court has adjudged a certain portion of the estate to be the property of the decreeholders, and is of course bound to see that he is fairly treated.

In the absence, then, of any law directly bearing upon the case, the Court consider themselves fully warranted by the laws and rules above quoted in ruling not only the "specific interest" of the plaintiff, but also the principle upon which the operation of butwarrah shall be performed.

In the present case, there is no dispute as to the cultivated lands already held in severalty by the plaintiff, and these will remain in his possession according to the spirit of Regulation IX. of 1811: the principle upon which the shamilât land should be divided is stated by the plaintiff, and supported by the settlement roobakaree. The nominal 46 beegahs, 3 biswahs and 11 dhoors, claimed by the plaintiff, are what his share in the shamilat would amount to if divided in proportion to the quantity of cultivated land already held by him in severalty. His interest in the mehal is measured by the quantity of land in his occupation, not by ancestral shares, and he claims a proportional share in the land not yet held in severalty. This is in conformity with the settlement roobakaree, which, in allusion to these 183 beegahs 17 biswahs, declares them to be “mootabik hukeeyat mooshturrik.” The meaning of these words is not beyond dispute, but the Court understand them to imply that each sharer possesses an interest in the shamilât proportional to his interest in the rest of the village. The principle is moreover perfectly equitable.

The Court therefore reverse the decision of the Zillah Court, and decree in favor of the plaintiff, appellant, declaring him to be entitled to a share in the shamilát lands proportional to the cultivated lands already held by him in severalty, to a separate allotment of the proportional jumma on the estate thus formed, and to the registry of his tenure in the Revenue records, as a distinct and independent mchal.

CASE No. 189 OF 1849.

Regular appeal from the decision of Moulvee Mohumed Zuhoor, Principal Sudder Ameen of Ghazeepore, dated 9th June 1849.

DHOOPUN RAI AND OTHERS, (Defendants), Appellants,

versus

SYED QASIM ALI, (Plaintiff), Respondent.

SYED QASIM ALI and Mirza Mohumed Ali, oorf Aka Nuwab, purchased talooqua Beerpore at a public sale held for the realization of arrears of Government Revenue, the share of Qasim Ali being one-third and the share of Aka Nuwab two-thirds. The auction purchasers found the same difficulty in collecting the rents which had been experienced by the fiscal authorities; land was thrown wilfully out of cultivation, and the new proprietors were compelled to have recourse to the Civil Court, where, on the 17th April 1843, they obtained a decree against the former zemindars for Rs. 9,542.

The auction purchasers, now also decreeholders, were no more able to realize the amount of their decree than they had been to collect their rents, and, moreover, they now began to quarrel amongst themselves. The former zemindars, with a view to evade execution of the decree, transferred their shares in other villages, and the plaintiff alleges that Aka Nuwab aided and abetted them in these fraudulent transfers, and supported them in their opposition to the plaintiff, in the hope of thereby securing the whole profits of the talooqua to himself.

Syed Qasim Ali therefore sues all parties for damages, his co-sharer Aka Nuwab, the former zemindars of talooqua Beerpore, and the qabaladars, who had purchased the shares of the Beerpore zemindars in other villages, in all about 200 persons. He claims, as the amount of damages, one-third of Rs. 42,902-8-9, that is to say, one-third of a sum composed of his share of the decree,

17th April 1843, and of the rents of Beerpore from 1247 Fuslee, the year of auction purchase, to 1253 Fuslee. The total rents of Beerpore included in the account filed amount to Rs. 33,356-15-9. The damages thus calculated are laid at Rs. 14,300-13-7.

The plaintiff details the circumstances of the former suit and of the disputes which ensued between himself and his co-sharer on the occasion of the realization of, or rather the attempts to realize, the sum decreed, to both, on the 17th April 1843. He charges this defendant with throwing obstacles in the way of a division, for which he, the plaintiff, had applied, with postponing sales of the former zemindars' property without consulting plaintiff, and asserts that this defendant's object was to prevent the plaintiff from redeeming a certain mortgage held by this defendant, and thus acquire possession of the whole of talooqua Beerpore.

The defendant, Aka Nuwab, denies having in any way interfered with the rights of Syed Qasim Ali, explains that in regard to the execution of the decree and the butwarrah, he had exercised only his just rights as a proprietor, and asserts, in his turn, that the object of the plaintiff in bringing this suit is to evade payment of a sum of Rs. 10,576, due to this defendant, under a certain soolehnamah, whereby some previous litigation in the Civil Courts had been concluded.

The zemindars of Beerpore have not appeared at all.

Of the qabaladars, 10 persons, holding under eight qabalas, answered, in the Principal Sudder Ameen's Court, that the transfers made in their favor were bona fide transfers, unconnected with the disputes which existed between the zemindars and the auction purchasers, or between the auction purchasers themselves.

The Principal Sudder Ameen divides the subject very accurately, and lays down the following points for decision.

1stly. Can a suit for damages be brought, as this has been, against all these defendants together?

2ndly. What is the amount of injury sustained by the plaintiff? 3rdly. Are the transfers fraudulent or not?

4thly. Is the defendant, Mirza Mohumed Ali, oorf Aka Nuwab, responsible for any part of the damages?

In regard to the first point, the Principal Sudder Ameen is of opinion, that there is no other way in which a suit could be brought against persons accused of conspiring together to injure another.

On the second, adopts the plaintiff's estimate, observing, that he is without question entitled to a third of the decree, and that no objection has been made to the amount of the wasil bakee. filed by the plaintiff.