siff, who left all accounts and claims between the parties to future adjustment. In entering into the account and decreeing the suit, the Judge has overlooked the material point of the interest claim, and has decided another, viz., the non-liability of the mortgage for the other claims, which, if entertained at all in the suit, should have been heard and decided in the Court of first instance. The Court accordingly annul the decision, and remand the case for retrial with advertence to the foregoing observations. The stamp will be refunded, and the costs charged, as usual. The 16th June, 1851. A. W. BEGBIE, Present: H. W. DEANE, }Judges, CASE NO. 24 or 1851. S. S. BROWN, Offg. Judge. Special appeal from the decision of C. C. KHYRATEE RAM AND OTHERS, (Defendants), Appellants, versus MUSSUMAT SEETOO AND OTHERS, (Plaintiffs), Respondents. THE circumstances of this appeal are identical with those of the case No. 23, disposed of to-day, and the order of remand is the same. The 17th June, 1851. CASE No. 72 OF 1851. { Special appeal from the decision of C. Allen, Esq., Judge of Furruckabad, dated 29th August 1850. GUNESH RAI AND MUNEE RAM, (Plaintiffs), Appellants, versus DowLUT AND OTHERS, (Defendants), Respondents. FOR the Judge's report of this case see pages 176 and 177 of the printed decisions for zillah Furruckabad for the past year. A special appeal was admitted "to try whether the appeal preferred to the Judge by the respondent, Dowlut, from the decision of the Moonsiff, ought not to have been rejected as inadmissible, in consequence of its not having been preferred within the prescribed period, and no special cause for the delay having been pleaded by the respondent in his petition of appeal or admitted as sufficient by the Judge." Two of the respondents, viz., Dowlut and Mussumat Joommun, appeared in person to defend this appeal, and the record of the case being now before the Court, I observe that the irregularity noticed in the certificate of special appeal is in a great measure ascribable to the mode of proceeding adopted by the Judge, by which the respondents were misled. The decision of the Moonsiff was passed on the 19th October 1849; on the 15th November, the defendant, Dowlut, preferred an appeal to the Judge in formá pauperis, and on the 4th January 1850, the record was perused by the Judge, and an order passed by him under Section 13, Regulation XXVIII. of 1814, conditionally admitting the appeal of Dowlut in formá pauperis. The case was then referred to the Principal Sudder Ameen, with directions to enquire into the fact of pauperism; on the 6th February 1850, the Principal Sudder Ameen decided, that the defendant's allegation of pauperism was not proved, and returned the proceedings to the Judge. On the 8th February, the Judge ordered, that the case should be postponed till the period of appeal from the Principal Sudder Ameen's order should elapse, and that in the event of no appeal being preferred by that time, the case should be again brought forward. On the 2nd March, the Judge recorded a proceeding to the effect that as the defendant, Dowlut's, qualification to appeal in formá pauperis had not been recognized, the appeal be struck off the file. On the same date, the Judge, in his separate roobakaree, confirming the order of the Principal Sudder Ameen disallowing the appellant's pauperism, passed an order, that the appellant was at liberty to present an appeal, in the ordinary manner, within ten days from that date. On the 5th March, accordingly, the defendant Dowlut presented an appeal on stamp paper, in which he recited the proceedings as above narrated, but did not specially urge them as a plea for not preferring his appeal within the prescribed period, and the Judge, without recording any reason for doing so, admitted the appeal, and disposed of the case on the 29th August last. The Court observe that the Judge's order of the 2nd March 1850, directing the defendant Dowlut to prefer an appeal in the ordinary manner within ten days, was irregular and unauthorized by any law or rule of practice. He should have contented himself with dismissing the petitioner's application to sue in formá pauperis, and with intimation to him that he was at liberty to prefer his appeal agreeably to the provisions of Clause 4, Section 12, Regulation XXVIII. of 1814, stating his reasons for not having appealed within the period prescribed by the law. The Judge seems to have considered it a matter of right, that on Dowlut's application to appeal in formá pauperis being dismissed, he should be allowed to appeal in the ordinary manner, and that no necessity existed for recording an opinion as to the sufficiency of the appellant's excuses for exceeding the period fixed by law for appeals. But the Court cannot recognize any such right. It may, on the contrary, reasonably admit of question, whether a party, who has failed in his attempt to prosecute an appeal in formá pauperis, has not thereby furnished a rather strong argument against the subsequent admission of an appeal in the ordinary mode. Clause 4, Section 12 of Regulation XXVIII. of 1814 by no means contemplates the unconditional admission of an appeal after the failure of a petitioner to establish his right to appeal in formá pauperis. It has been ruled by the Sudder Dewanny Adawlut that "a mere application for permission to sue in formá pauperis is not a preferring of a claim within the meaning of the rule of limitation laid down by Section 14, Regulation III. of 1793," and on the same principle an unsuccessful attempt to appeal in forma pauperis does not necessarily exempt the petitioner from the operation of the law of limitation in regard to appeals, although the Appellate Court may exercise its discretion in admitting or rejecting the appeal. The absence of any such discretionary order in the present case vitiates the proceedings, and calls for correction. The Judge's decision is accordingly annulled, and the case remanded for retrial with reference to the foregoing observations. * Sudder Dewanny Adawlut Select Reports, 30th January 1838. The 18th June, 1851. CASE No. 158 or 1850. Regular appeal from the decision of RAMPUL, (Defendant), Appellant, versus HAJEE IMAM BUKSH, (Plaintiff), Respondent. THIS suit is brought to erase from the Revenue Record the name of Mohumed Shakur, as proprietor of a four-anna share in the talooqua of Salarpore, and to substitute in place of it the name of the plaintiff, by altering the order of the Collector, dated 12th April 1849, and by giving effect to previous orders, dated 30th November 1847; also to recover wasilát from the beginning of 1255 Fuslee to the middle of 1256 Fuslee, amounting to Rs. 6,297-15. The plaint sets forth, that the entire talooqua of Salarpore became the property of Mohumed Zuma on the 2nd August 1820, on suit brought by him against Government; that Mohumed Shakur sued for proprietary right in one-half of the talooqua, associating with him Mohumed Heiat, and obtained a decree to the extent sued for on 30th June 1823; that subsequent differences arose between Mohumed Shakur and Mohumed Heiat, which resulted in Mohumed Heiat's obtaining a decree in April 1824, for a four-anna share out of the eight-anna share decreed to Mohumed Shakur. From these decisions Mohumed Zuma appealed, and the appeal cause had proceeded as far as service of notice on the other party, when Mohumed Shakur, with the consent of Mohumed Heiat, adjusted the matter in dispute by a soolehnamah, in conformity to which Mohumed Shakur waived his rights in the talooqua, in consideration of receiving from Mohumed Zuma Rs. 140 per annum. The Appellate Court, on the 15th March 1826, decided according to the terms of the soolehnamah, and on the 24th August 1826, an order having been passed to erase the name of Mohumed Shakur, Mohumed Zuma became the recognized owner of the entire property. In the mean time, however, subsequently to the passing of the decree in favor of Mohumed Shakur and Mohumed Heiat, but before the acceptance of the Court of the soolehnamah, Mohumed Shakur and Mohumed Heiat had made transfers of the interests assigned to them, and Mohumed Zuma bad no opportunity of setting these proceedings aside, and of obtaining the record of his name in the Collector's books as sole proprietor, before the talooqua fell into balance, and was let in farm. The farmer was the present plaintiff, and in consequence of this transfer in farm, Mohumed Shakur and Mohumed Heiat continued to be recorded. The right in the talooqua of Mohumed Zuma was afterwards sold by order of Court in execution of a decree had against him by Luchmee Mull, and on the 9th May 1837, the plaintiff purchased this right in the name of Soojad Ali. In the beginning of 1255 Fuslee, the farming arrangements were finally set aside, and the restoration of the old proprietors was ordered; claims were set up by the heirs of Mohumed Zuma, whose rights had been disposed of by sale, and by the representatives of Mohumed Shakur, who had exchanged his interest in the talooqua for a money payment, and conflicting orders having been passed by the Collector, the plaintiff has recourse to a Civil action, in order that his sole title be judi cially declared in virtue of his purchase of the rights of Mohumed Zuma, who, at the time of the purchase, was sole proprietor. There were several classes of defendants in the lower Court: of these one individual only, Rampul, appeals. He is of the class of transferrees from the old zemindars, and he admits possession for the period during which the plaintiff lays claim to vasilát. His defence is therefore valid or not, according as the title of those from whom he derives may be found to be valid or not. The Principal Sudder Ameen decreed in favor of the plaintiff. He has remarked that copies of documents filed by the plaintiff clearly establish the fact that Mohumed Shakur, when Mohu. med Zuma appealed against the decree which the former had obtained, consented to receive a money allowance from Mohumed Zuma in lieu of his right as a sharer in the estate; and that the ishtehar and sunnud of sale show, as clearly, that the entire interests of Mohumed Zuma passed away under the sale effected in 1837 at the instance of Luchmee Mull. The plaintiff having bought those interests in the name of Soojad Ali, as is admitted by Soojad Ali, is consequently sole owner. regard to wasilat, the Principal Sudder Ameen held it to be made out by the putwarree's papers and other evidence, that the amount claimed had been received by the defendants, who had established themselves in possession without a just title. In There is no tenable ground of appeal from this decision; no question arises in respect to the interest decreed to Mohumed Heiat; no question arises in respect to the plaintiff being the real purchaser in the name of Soojad Ali. There is irrefragable evidence that on the 15th March 1826, the appeal cause of Mohumed Zuma, versus Mohumed Shakur, was decided conformably to a soolehnamah, by which Mohumed Shakur accepted a compensation in money for the right previously adjudged to him. The ishtehar of sale, dated 1st April 1837, notifies that the entire right of Mohumed Zuma will be brought to sale on a day therein mentioned. It is an argument of no force, that the name of Mohumed Shakur continued to be recorded, notwithstanding the decision by soolehnamah, in the revenue register; for no claim can be made, in virtue of that record, to rights which are shown to have been formally abandoned. Mohumed Zuma was sole proprietor when his rights were sold, and the plaintiff, as purchaser, stands in his place. The appeal is dismissed. |