Page images
PDF
EPUB

The decree of the lower Court dismisses the claim of the plaintiff to the 158 luttahs, the servants' wages and interest, and as the timber in store is, by his own admission, in the possession of the plaintiff, and is not claimed by defendants, a decree for this item (mal mojoodeh) is given in favor of the plaintiff, who is however made responsible for all the costs.

Amongst these costs are the fees paid by Doomee Mull to his vakeel, which have been calculated on the total value of the suit, whereas only the value of 40 luttahs was at issue between the plaintiff and this defendant. If Doomee Mull chose to defend the whole suit, he did so at his own expence. The sum therefore chargeable to the plaintiff on account of Doomee Mull's costs must be calculated upon the estimated value of the 40 luttahs only.

In like manner, the costs chargeable to the plaintiff on account of the defendants, Ahmud Shah and Seeraj-ooddeen, must be diminished in proportion to the value of the 162 luttahs, which were deposited in the plaintiff's tál, and which these defendants distinctly claimed in the juwab dawa as belonging to them by purchase, a declaration which is inconsistent with the remark of the Principal Sudder Ameen, that the defendants had no claim upon the property in store in plaintiff's tál. These 162 luttahs then were disputed between the parties, and a decree for them having been given to the plaintiff, a proportional deduction must be made from the amount costs charged to him in the Court below.

The vakeel of the respondent consents to these modifications of the decree, and it is therefore unnecessary to carry the case before a full bench.

In all other respects the decree of the Court below is confirmed.

The 14th January, 1851.

Present H. LUSHINGTON, Judge.

CASE No. 14 or 1851.

:

{

Special appeal from the decision of J. S. Clarke, Esq., Judge of Azimgurh, dated 27th July 1850.

DOOKHIT, kulwar, (Defendant), Appellant,

versus

SYED FAQUEER HOOSSEIN, (Plaintiff), Respondent.

THE particulars of this case are to be found in the printed decisions, as above indicated, and in the previous decision of the Judge of Azimgurh, dated 12th February 1848.

Shah Hyder Ali, also a defendant, sold a fractional share in mouzah Kullenderpore to the defendant, Dookhit, kulwar. The plaintiff sues to set aside that sale, and become the purchaser himself by the Mohumedan law of preemption.

The points which have been finally ruled in the several decisions are, that the claim of a shafee is not barred by a refusal on his part to purchase before the actual sale took place; that the plaintiff is a shafee by share and by neighbourhood, and that he has not forfeited his claim by delaying to bring it into Court for 14 months.

The Principal Sudder Ameen, however, in his decree 14th March 1848, distinctly declares that plaintiff has failed to observe the necessary forms of law, that is to say, the immediate claim and affirmation by witness, called by the Mohumedan law tullub i mowasibit o ishtishad, and on the ground of this failure he dismisses the suit. The Judge, in appeal, apparently misapprehends the reasoning of the Principal Sudder Ameen, for he writes, that the Principal Sudder Ameen "adhered to his former "decision on the main point; that the plaintiff was not entitled "to the right claimed, as the evidence of the defendants proved "that he had declined to purchase the property when offered "to him." But this refusal to purchase was not the reason why the Principal Sudder Ameen rejected plaintiff's claim: that point had been finally disposed of by the decree of the Zillah Court, 12th February 1848. The reason was, that the immediate claim and affirmation by witness had not been proved, and the ground of dismissal has not been impugned by the Judge. A special appeal was therefore admitted, because the Judge had reversed the decretal order of the Principal Sudder Ameen without controverting the point upon which that order is mainly founded.

Unless it be held, in opposition to the opinion of the Principal Sudder Ameen, that the necessary forms were observed by the shafee, the decree of the Principal Sudder Ameen's Court cannot be set aside. The Judge has set aside that decree without trying the point. The decision of the Zillah Court is therefore annulled, and the case remanded to the Judge's file, in order that he may try the point which he has left unnoticed, as above indicated, but without re-opening the whole question or re-considering those points which are herein declared to have been finally disposed of.

The 18th January, 1851.

Present: A. W. BEGBIE, Judges,
H. W. DEANE, Offg. Judge.

CASE No. 40 of 1849.

Regular appeal from the decision of Qazie Yar Ali Khan, Principal Sudder Ameen of Zillah Jounpore, dated 18th November 1848.

MUTTUR SINGH AND URJUN SINGH, (Plaintiffs), Appellants,

versus

HURSHUNKER SINGH AND OTHERS, (Defendants), Respondents.

THE father of the plaintiff, (Buhoreenarain,) purchased the entire estate of Godhoon, and half of mouzah Hydreepore, at public sale. Falling in balance, the estates were again advertised for sale in 1815; but, on the defendant Hurshunker making good the balance, a farming lease for life was granted to him, and he continued to hold the estates on this tenure till the end of 1840 A. D., when a fresh settlement was made with him, and he was admitted to engage as proprietor. The plaintiff did not prefer his claim at that time, but, in 1848, on applying to the Collector to be reinstated, he was, by that authority, referred to the Civil Court.

The defendants, in reply, asserted that they were entitled to hold the estates as proprietors under the arrangements made by the Revenue authorities; that plaintiffs did not appear at the time of the settlement to make any claim; and that they, (the defendants) having been in possession since 1223 Fuslee, could not now be ousted, and that the plaintiffs' suit was barred by the law of limitation.

The Principal Sudder Ameen dismissed the plaintiffs' suit under the law of limitation, being of opinion, that he should have preferred his claim within 12 years from the date on which the estates were placed under kham management by the Collector, viz., the Fuslee year 1222; and that the period of 12 years could not be calculated, (as supposed by plaintiffs) from the date on which the defendant, Hurshunker, was admitted to engage as proprietor.

The Court cannot concur in the opinion expressed by the Principal Sudder Ameen. They hold that the cause of action arose from the date of the proprietary engagement entered into by the defendant, Hurshunker. The sequestration of an estate by the Collector for balances, or its transfer to a farmer, is not

destructive of the proprietary rights of the party in balance during the period of kham management, or of a farming lease; the proprietor's rights are merely in abeyance, and may be revived on the expiration of the attachment or farm: the Principal Sudder Ameen has, evidently, confounded sequestration with confiscation. The case of Puhloo Singh and others, appellants, versus Sheo Dutt Singh and others, respondents, decided by this Court on the 11th January 1847, is cited by the Principal Sudder Ameen in support of his opinion; but that case is not in point, as in that instance the rights of the former proprietor had been confiscated for evasion of Criminal process; a measure which utterly annihilated the pre-existent right of property.

The Court accordingly reverse the decision of the Principal Sudder Ameen, and remand the case for retrial with reference to the merits.

[blocks in formation]

CASE NO. 145 of 1850.

Judges,

H. W. DEANE, Offg. Judge.

Special appeal from the decision of Moul-
vee Mohumed Hoossein Khan Buhadur,
Principal Sudder Ameen of Zillah
Bareilly, dated 8th December 1849.

OOODO SINGH, (Defendant), Appellant,

versus

MUSSUMAT HUR KOONWUR, (Plaintiff), Respondent.

THIS is the second time this case has been before this Court in appeal. On the 14th July 1849, the case was remanded by Mr. Lushington, for the reasons stated in his proceedings, which will be found at page 231 of the printed reports for 1849. The object in remanding the case was, that the Principal Sudder Ameen should enquire into the fact of the alleged transfer to the plaintiff by Bidhee Singh. If that were found to have actually taken place, a decree, in favor of the plaintiff, would follow as a matter of course. But the Principal Sudder Ameen, notwithstanding his having found that the alleged transfer is a fiction, decrees in the favor of plaintiff; the reason assigned being, that the names of Sewa and the other defendants had not been registered in the place of Bidhee's, and that these defendants had filed confessions of judgment. These reasons are obviously inconclusive, for the non-registry of names

does not deprive a person of his zemindaree rights, and the confes→ sions of judgment were palpably collusive. The Principal Sudder Ameen had only to deal with the plaintiff's cause of action, which was the alleged sale to her of his rights by Bidhee. As that allegation is declared by the Principal Sudder Ameen to be false, the plaintiff's claim falls to the ground. In the words of the certificate of special appeal, the Principal Sudder Ameen ought, "on his own showing to have dismissed the plaintiff's claim "instead of decreeing in her favor."

The Court accordingly reverse the Principal Sudder Ameen's decision, and dismiss the suit. Costs payable by respondent..

[ocr errors][merged small][merged small][merged small][merged small][merged small][merged small]

CASE No. 252 or 1850.

H. W. DEANE, Offg. Judge.

Special appeal from the decision of S. S. Brown, Esq., Judge of Goruckpore, dated 27th June 1849.

RUTTOO SAHOO, (Plaintiff), Appellant,

versus

SUSTEE RAM AND OTHERS, (Defendants), Respondents.

THE report of this case will be found at page 135 of the printed reports for zillah Goruckpore, for the year 1849.

A special appeal was granted to try," whether the exposition of "the law, contained in the following passage in the Judge's deci"sion, be correct or otherwise."

"The order therefore remained a dead letter, and as the set"tlement arrangements were in consequence incomplete, the "Revenue authority had power, under Section 20, to determine "the distribution of the profits as well as the right of engagement "with Government, under the Clause 1, Section 10; nor can "these arrangements become now the subject of a Civil suit."

In the opinion of the Court, the above exposition of the law is not correct. Section 20 of Regulation VII of 1822 does not confer the power on Collectors of remodelling arrangements previously made under Section 10. On the contrary, Section 10 is not among the Sections enumerated in Section 20, of which the powers are to be "ordinarily exercised by Collectors when employed in "making or revising settlements of the land revenue." The finality of the arrangements made under Clause 1, Section 10 of

« PreviousContinue »