CASE No. 75 or 1848. }Judges, S. S. BROWN, Offg. Judge. Regular appeal from the decision of SHEOCHURN AND OTHERS, (Defendants), Appellants, versus PUHLWAN SINGH AND OTHERS, (Plaintiffs), Respondents. THIS suit is brought for possession of 580 beegahs of land declared to belong to mouzah Bubra, the property of the plaintiffs; to refix the ancient boundary of the village, and to recover wasilát from 1223 to 1253 Fuslee: total value of suit Rs. 42,746. The lower Court passed a decision in favor of the plaintiffs. The facts of the case, as set forth by the parties themselves, are as follow. The plaint states that mouzah Sigrou, of which the defendants are proprietors, formerly belonged to Rugoo, Poorun and others, and that mouzah Bubra belonged to Choha, father of Puhlwan Singh and others, plaintiffs. The two mouzahs are conterminous. The boundaries had been marked off, and no dispute in respect to them existed till in 1217 Fuslee, Chotoo and others, zemindars of Sigrou, encroached on the land of Choha. Choha sued certain of the defendants for the rent of the land (145 beegahs) thus appropriated, and, on the 10th August 1810, the ancestors of the plaintiffs obtained a summary decree for Rs. 217-8. Choha, with the consent of the other party, set up the ancient land marks, obtained possession of 580 beegahs kutcha, or local beegahs apparently, equivalent to 145 pucka beegahs), and peace was restored. Gujadhur, father of certain of the plaintiffs, purchased the estate of Sigrou from the old zemindars on 12th December, 1810. He afterwards purchased the above 580 beegahs as the right of Choha. Hindoo Singh, father of certain of the defendants, claimed the Sigrou estate on what the plaintiffs allege to be a forged byenamah of 1863 of the Sumbut year, and got a decree against Rugoo, Poorun and others; but as Gujadhur was already in possession, he was instructed, if he wished to obtain possession, to sue Gujadhur likewise. He sued him accordingly, and obtained a decree on the 9th June 1814, and he was recorded as proprietor. He got possession in 1222 Fuslee, or 1815 A. D., forcibly seized the 580 beegahs, and ejected the ancestor of the plaintiffs, under the pretence that what he thus seized appertained to the village of Sigrou, of which he had become proprietor by purchase. On the 3rd March 1819, Hindoo Singh sued to set aside the summary decree of 10th August 1810, impleading Choha, and demanding to be put in possession of the 580 beegahs. He got a decree in 1821. The suit was appealed, remanded, and afterwards struck off the file. Hindoo Singh applied to the Court of appeal, and at length the subject having been brought before the Sudder Court, a review of judgment was ordered, and Hindoo Singh was permitted to put in an amended plaint. The Sudder Ameen, in 1839, reversed the summary decree, thereby passing a decree in favor of Hindoo Singh, but did not order that he be placed in possession, because his vakeel stated to the Court that Hindoo Singh was already in possession. The plaintiffs appealed, and the Judge in 1842 held that the right was on the side of the plaintiffs; he therefore reversed the Sudder Ameen's order, confirmed the summary decree, and directed that plaintiffs be put in possession. The plaintiffs got possession accordingly in 1843. Hindoo Singh applied for, and obtained a review of this judgment. The Judge in 1844 again upheld the summary decree, but altered the order of the Court in regard to possession, and gave possession to Hindoo Singh, on the ground that the order, dispossessing him in 1842, had been irregularly made. Hindoo Singh preferred a special appeal, and, on 25th June 1844, his appeal was disallowed. Sheochurn and others, defendants, having got possession in 1845, under the Judge's order in the reviewed case, ejected the plaintiffs. Whereupon the plaintiffs have instituted this action, and they maintain that their right was acknowledged by the Judge in 1842, and as they have been forcibly dispossessed, their claim comes under the provisions of Regulation II. of 1805, which fixes sixty years as the legal limit under the above circumstances. They urge, moreover, that they were in possession from April 1843 to July 1845, so that in whichever light viewed, their suit is within the time allowed, whether regard be had to the statute which fixes the limitation at sixty years, or whether it be had to the fact of their temporary possession under the decree of the Judge in 1842. It is replied by the defendants, heirs of Hindoo Singh, that the land in dispute belongs and ever has belonged to Sigrou. Choha sued the Sigrou zemindars in 1810, as above, for the rent of 145 beegahs of land,. and obtained a decree. With the help of the omlah, the words "neez dukul" were fraudulently inserted in one of the summary suit misl. Choha did not however get possession. Hindoo Singh bought the estate from the zemindars of Sigrou in 1862 of the Sumbut year, correspond ing with 1804 A. D., that is before the summary decree had been had. In 1812, Hindoo Singh obtained a decree for the entire estate of Sigrou, but was refused possession, on the ground that possession was held by Gujadhur. He therefore sued Gujadhur, obtained a decree, and, in the execution thereof in 1815, possessed himself of the entire estate of Sigrou, the disputed 580 beegahs inclusive. Choha in 1816 complained that the landmarks of the two mouzahs had been removed, and a forgery having been discovered in the papers of the summary decree case, certain of the omlah were punished by the Criminal Courts. In 1819, Hindoo Singh sued to set aside the summary decree, and his claim was allowed in 1821. After much further litigation on both sides, Hindoo Singh revived his suit, having received permission to file a supplemental plaint. The Sudder Ameen, in 1839, gave a decree in his favor, in reversal of the summary order. In 1842, the Judge reversed these proceedings, passed a decree in favor of the plaintiffs, and ordered that they be put in possession. In 1844, on review of judgment, the summary decree was again affirmed by the Judge, but, on this occasion, possession was ordered to be given to Hindoo Singh. A special appeal was preferred by both parties, not by the defendants only, as the plaintiffs desire to make out. Both special appeals were thrown out. It is contended in defence that under Regulation II. of 1803, and Construction 999, the suit cannot be now tried, having been tried already. It is also urged, the plaintiffs never having had possession, their suit is barred by lapse of time. It is pleaded that Hindoo Singh, on the execution, in 1815, of his decree, obtained possession of the whole of mouzah Sigrou, the disputed tract inclusive. It is further pleaded by the defendants that Regulation II. of 1805 does not apply to this case, because, on the showing of the plaintiffs, the old zemindars, from whom Hindoo Singh purchased, committed the aggression complained of, not Hindoo Singh himself, and finally, though several Settlements have been effected since the period of the alleged wrong, yet at no Settlement was complaint made by the plaintiffs of this forcible dispossession. The Principal Sudder Ameen laid down two points for consideration. 1st. Has this suit been tried already. 2nd. Is it barred by lapse of time? The first suit was brought, the Principal Sudder Ameen remarks, by the ancestor of the defendants, for the reversal of the summary decree passed in 1810, the right of the plaintiffs was admitted by the Court in 1842, and again in 1844, and this finding was upheld in 1845 by rejection of the special appeal, which the defendants preferred. The present action is brought for the purpose of displacing possessors who have established themselves by force, and there is nothing in dismission of the suit of Hindoo Singh, as against the present plaintiff's, which can bar the institution of the present claim, the cause of action is not the same, because the defendants sued for the land as belonging to Sigrou, and the plaintiffs sue for it as forming a part of Bubra. Let us suppose this case. A person seizes an estate and sues in Court, but unsuccessfully, he nevertheless retains possession; now, in the case supposed, can the rightful owner obtain what he is entitled to without a suit in Court? The plaintiff sued under the provisions of a law which allow sixty years as the limitation, and the possession, moreover, of the defendants, who succeeded the violent usurper, is within twelve years; if the defendants had not had wrongful possession, their suit would not have been dismissed, and again, the possession had intermediately by the plaintiffs, under the decree passed in their favor in 1842, brings the suit within the ordinary prescribed period. How, asks the Principal Sudder Ameen, could a decree for rent have been given if the ancestors or the plaintiffs had not formerly held possession of the property in dispute. Their title was declared by the Judge in 1844 to be good. It is shown that Gujadhur bought the 580 beegahs from Choha; if it were land appertaining to Sigrou, why should he purchase it, seeing that he had already purchased the rights of the zemindars of Sigron? In regard to the special appeal preferred by the plaintiffs, the Principal Sudder Ameen observes that it was rejected on grounds merely technical. He held that the plaintiffs had proved their claim, and accordingly decreed in their favor. The appellants urge that it is not open to the plaintiffs to plead after this equivocal fashion, asserting that the legal limit is sixty years on the ground of their forcible dispossession, and that the suit also comes within the ordinary limit of twelve years by reason of the temporary possession which was conferred on them by the decree of the Judge in 1842. The appellants contend that they got possession of Sigrou in virtue of a decree of Court; if possession were then had of more than had been decreed to them, the objection should have been put forward on the execution of the decree. Again, if the land in dispute really belongs to Bubra, it is reasonable to suppose that the plaintiffs would have complained to the Revenue Authorities of an excessive jumma. Further, it is urged that the suit is brought a second time, the claim to possession put forward by Choha having been dismissed in 1844; so that this is the same action under a new form. It is averred by the appellants that both the byenamahs under which Gujadhur is made out to have purchased all Sigrou from the old zemindars of that mouzah, and a portion of Bubra from Choha, are fabricated, and it does not follow, the appellants add, that when the claim of the defendants to reverse the summary decree was disallowed, therefore the right of the plaintiffs to this tract of land was acknowledged. In the opinion of the Court the judgment which has been passed by the Principal Sudder Ameen cannot be sustained. The inadmissibility of the style of pleading adopted by the plaintiffs, so as to avail themselves of the benefit of the sixty years' limitation law, and if that plea fall to the ground, to bring their suit within the ordinary legal period of twelve years, is manifest. The possession had by the plaintiffs in 1843 under an order of the Judge, which this Court have declared in their letter No. 861 of the 2nd May 1843 to be irregularly made, is not possession within the meaning of the law. The words then used by the Court are "the consequence of your decision is to oust Hindoo Singh from land, for the right or proprietary occupation of which no suit has been instituted against him; an anomaly which is certainly inconsistent with all law and precedent." The sole ground, therefore, on which the plaintiffs can appear in Court at all, and demand a decision of the case on its merits, is the exceptional enactment of Regulation II. of 1805, Section 3. This plea should have been set forth by the plaintiffs in the most distinct terms. The Principal Sudder Ameen should have made it the leading point for enquiry under the Circular Order of 13th September 1843, and he should have called on the plaintiffs to furnish special proof in support of the plea this the Principal Sudder Ameen failed to do, and the plea, though made, is not proved. It was not enough for the Principal Sudder Ameen to declare that proof of forcible dispossession may be found in the fact that Hindoo Singh lost his suit instituted for reversal of the summary decree, that it may be found in the summary decree itself, and on reference to previous proceedings of the Courts. The Court look upon the present case of dispossession as a common, not a special case, not such as entitles the plaintiffs to relief under Regulation II. of 1805. It is beyond question, whether the land in dispute really ́ pertain to Bubra or to Sigrou, that Hindoo Singh possessed himself of it in 1815, on the execution of his decree; if rightfully, he possessed himself of it in virtue of that decree; if wrongfully, under cover of that decree; and it is equally certain, that excepting for the period during which the Judge of Banda irregularly deprived him of possession, he has held possession ever since. The remedy of the plaintiff's lay in an action to be brought within twelve years from the year 1815, as in ordinary cases, and the plaintiffs cannot maintain that they were ignorant that such was the course to be pursued, for the record of the case contains a petition of Choha in 1817, in which he complains |