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In regard to the qabaladars, the Principal Sudder Ameen divides them into two classes: those whose deeds of sale are dated before the passing of the decree, 17th April 1843, and those whose deeds are dated after that event. The former, he considers to be bona fide transfers, effected with some acknowledged purpose, and unconnected with the demands against talooqua Beerpore. The latter, however, he holds to be fraudulent. No necessity for these transfers is apparent; the dates support the supposition that the only object was to evade payment of the decree and of the Beerpore rents; and, finally, it is, in the opinion of the Principal Sudder Ameen, clearly established, by the evidence in the case, that, in these instances, possession of the thing sold was never delivered.

On the fourth point, the Principal Sudder Ameen does not consider that the defendant, Aka Nuwab, has rendered himself liable for damages. The proceedings in the execution of the decree, and in the matter of the butwarrah, may have thwarted the plaintiff, but the acts of this defendant were those which a co-sharer was entitled to perform, and cannot render him responsible for damages. This appears to have been the principal point in the suit, but no appeal has been preferred against the decision of the lower Court in regard to it.

From the decision of the Principal Sudder Ameen, two appeals have been preferred. One, by Dhoopun Rai and others, qabaladars of the class, which has been declared to be fraudulent, and another, by Aka Nuwab, who has not been allowed his costs.

Dhoopun Rai and others commence their appeal by raising the usual objection to the form in which the suit has been brought, none of which appear to the Court to be such as should affect the decision. They then go on to declare, as before, that the transfers made to them were bond fide transfers, and they, lastly, object to the amount of the damages given against them.

So far as the nature of these transfers is concerned, the Court see no reason to differ with the Principal Sudder Ameen, but they consider the objection of the appellants to the amount of damages to be deserving of attention. The Principal Sudder Ameen by his decision has made the holders of 13 deeds of sale jointly and severally responsible for the plaintiff's share in the decree 17th April 1843, and in the rents of Beerpore from 1247 to 1253 Fuslee. The Court do not consider that the decree and the rentroll constitute a just measure of the responsibility of the appellants. The qabaladars can have injured the plaintiff only to the extent of the value of the property fraudulently purchased. That value should be the measure of the damages awarded against them. As the ascertainment of this value has not occupied, the attention of the Court of first instance, some difficulty has been experienced

in determining it; but enough is to be found in the mis to enable this Court to pass a final and equitable order, and to obviate the necessity of a remand. Of the 13 qabalas, the holders of which have been declared liable for damages, eight are with the misl: the particulars of three more are to be gathered from the petitions of the qabaladars filed with the misl: the two remaining are found by the Court, on evidence sufficient for the purpose, to be as follows: 1. Bhoor Rai, qabaladar, Rs. 498, dated 6th January 1847; and 2nd, Moorleedhur, qabaladar, Rs. 100, dated 19th December 1846. The Court hold that for the purposes of this suit, the price entered in the qabalas represents the value of the property sold, and this value has been declared above to be the measure of the damages to be awarded against the qabaladars. Under the circumstances of the case, the qabaladars might legally have been declared jointly and severally responsible, but as the value of each transfer is known, there exists no necessity for an order which might bear more heavily upon individuals than upon the whole. The Court therefore declare that the appellants are severally, and not jointly, responsible to the plaintiff for damages to the amount entered in the deed of sale of each as purchase money; but where one deed of sale contains the names of more than one purchaser, then such purchasers shall be jointly and severally responsible to the extent of the purchase moncy entered in such deed of sale.

The decree of the Principal Sudder Ameen is modified accordingly.

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MIRZA MOHUMED ALI, oorf AKA NUWAB, (Defendant), Appellant,

versus

SYED QASIM ALI, (Plaintiff), Respondent.

For the particulars of this case see the above decision, No. 189, Dhoopun Rai, &c., appellants, versus Syed Qasim Ali, respondent, of this date. Mirza Mohumed Ali has appealed, separately, to obtain an order for costs. These were not allowed him by the Court below, on the ground that the plaintiff had made this appellant a defendant for the purpose of determining plaintiff's sharc. If the appellant had done any thing amounting to a denial, that. the plaintiff was a one-third sharer in talooqua Beerpore, or, if he had disputed the fact in his juwab dawa, the refusal to allow appellant his costs might have been maintained. As it is, the Court do not see any good ground for refusing them. Aka Nuwab has not been found to be a wrong doer, and he has never asserted that the plaintiff did not possess the share claimed by him in talooqua Beerpore.

In the opinion of the Court the appellant is entitled to costs, and the decision of the Principal Sudder Ameen is modified accordingly.

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MUSSUMAT LONGEE, (Plaintiff), Respondent.

THIS WAS a suit to obtain division of a one-anna six-gundah share in mouzah Koorlee Joferpore, and a 2-anna 13-gundah share in mouzah Birjla.

The plaintiff represented that there were two puttees in these estates known by the distinctive appellations of Hoolas Rai and Bas Rai. The cultivated land, and the houses of the cultivators, had been divided between the two puttees, the culturable but waste land, baghs, tanks, &c. remaining in common, the putteedaree system of revenue management prevailing in puttee Hoolas Rai, of which plaintiff is a co-parcener, and the beegahdaree system obtaining in the Bans Rai puttee. Plaintiff further states that at the time of the division being made by the Officers of Government, no land marks were erected, and that, consequently, the boundaries of the several fields had fallen into confusion, (khult mult ho guya) she sues therefore to obtain a fresh division both of the cultivated and uncultivated lands.

The Moonsiff decreed in favor of plaintiff, with a proviso, that the new division should not in any way interfere with the division previously made of the cultivated land. This decision was upheld in appeal by the Additional Principal Sudder Ameen.

A special appeal was admitted to determine," whether the plaintiff ought not to have been nonsuited, her claim to have a new division of the entire estate, under the circumstances of the case, being untenable: also, whether the decisions of the Moonsiff and Principal Sudder Ameen are not inconsistent with the claim asserted by the plaintiff."

The Court are of opinion that the suit of the respondent is irregular, and entails on her the penalty of nonsuit, it being admitted by her that a division of the cultivated lands had already been

regularly effected by the Revenue Authorities. She was not at liberty to bring a suit to effect a new division, nor do the circumstances of the original division having fallen into confusion, and the common possession of the uncultivated portion, afford sufficient ground for the institution of such a claim. If, as alleged by the respondent, or rather, as is to be inferred from her petition of plaint, she has been dispossessed of any portion of the land allotted to her by the division, she was at liberty to sue for the recovery of the same, it resting with her to point out the lands of which she has been dispossessed. If, on the other hand, she desired to obtain separate possession of her portion of the undivided land, the Court was equally open to her. But she cannot sue (as she has most clearly done) for a fresh division of the entire mouzah, and the attempt of the lower Courts to reconcile their decree in the respondent's favor, with the recognition of the existing division, involves a contradiction. There is such a studied ambiquity in the petition of plaint, that it is not easy to ascertain what the real object of the suit is, but it certainly may, without any forced construction, be understood to claim a redivision of the entire mouzahs, a meaning which, though disavowed by the respondent, is still attached to it by the appellants.

The decisions of the lower Courts are reversed, and the respondent nonsuited.

Present:

The 24th April, 1851.

CASE No. 57 OF 1851..

A. W. BEGBIE,

H. LUSHINGTON, Judges.
H. W. DEANE,

Special appeal from the decision of Doobé
Jowala Pershad, Additional Principal
Sudder Ameen of Azimgurh, dated
28th June 1850.

SHEO DASS RAI, (Defendant), Appellant,

versus

PURMA RAI AND OTHERS, (Plaintiffs), Respondents.

THE circumstances of this case are identical with those of case No. 56, this day disposed of, and a special appeal was admitted, and the decisions of the lower Courts reversed, on precisely the same grounds. It is unnecessary therefore to do more than refer to that decision.

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