and Cheturmull are the only mortgagees of this portion. Jogul Kishore and Nund Kishore are erroneously specified as defendants, they having no concern with this mortgage. For the reasons stated in case No. 39, I dismiss the appeal, with costs. CASE No. 80 OF 1851. S. S. BROWN, Offg. Judge. Special appeal from the decision of Mohu- LUCHMUN AND OTHERS, (Defendants), Appellants, versus BHAGEERUT AND OTHERS, (Plaintiffs), Respondents. In this suit, the plaintiffs sought to establish a proprietary title in two biswahs being a portion of a thoke of five biswahs. Their claim is made to rest on ancestral right derived from Darah Sah. The Court of first instance ruled that Darah Sah had never possessed any interest in the property claimed, and that, although the plaintiffs had made good their pretensions, on other grounds, to be considered sharers in the mouzah, yet they had altogether failed to show that they were entitled to share to the extent demanded. The suit was accordingly dismissed by the Moonsiff. The Principal Sudder Ameen, passing by the pleas of the parties, decreed, in full, in favor of the plaintiffs, on the ground that they are recorded sharers. A special appeal was allowed to try, whether the judgment of the Principal Sudder Ameen can be maintained, inasmuch as the plaintiff's claim as heirs of Darah Sah, and although the Moonsiff has found that Darah Sah had no rights in the estate, the Principal Sudder Ameen has passed a decree in favor of plaintiffs without refuting the arguments on this head employed by the Moonsiff; also, whether the simple fact, found by the Principal Sudder Ameen, of the plaintiffs being sharers in the estate, is sufficient to justify a decree to them of a specific portion of the mouzah. The Court regard the decision of the Principal Sudder Ameen as imperfect and unsatisfactory. The points to be tried are, whether plaintiffs are the heirs of Darah Sah or not, and if they are, whether Darah Sah or his descendants have had possession within the period allowed by law, of the thing claimed, so as to entifle the plaintiffs to a decree. The mere fact that the plaintiffs are sharers in the estate, to an undefined extent, is obviously insufficient to establish a claim to the proprietary possession of two biswahs. The suit is remanded to the Principal Sudder Ameen, that he try it with reference to these observations. ee The 30th June, 1851. Present: S. S. BROWN, Offg. Judge. CASE No. 40 or 1850. Regular appeal from the decision of H. W. Deane, Esq., Judge of Meerut, dated 10th December 1849. NUWAB MOHUMED NUWAB KHAN, (Defendant), Appellant, versus NUWAB MOHUMED WULLEE DAD KHAN, (Plaintiff), Respondent. CASE No. 236 of 1850. MOHUMED UBDOOLLAH KHAN, (Defendant), Appellant, versus NUWAB MOHUMED WULLEE DAD KHAN, (Plaintiff), Respondent. THE particulars of the past litigation in this case are detailed in the Judge's decision in the printed volume. It ended in a formal abandonment of all claim to the property in dispute, on the part of the defendant Nuwab Khan, and in a decree thereupon for the plaintiff, who was, however, unable to put the decree in execution by reason of a mortgage on the property, which Nuwab Khan had given, and has now brought his action against Nuwab Khan and the mortgagee, Ubdoollah Khan, for possession of the two mouzahs, with wasilát, from 1247 to the half year of 1254 Fuslee. The suit, as first brought, involved a distinct claim for wasilát from these and two other mouzahs, for a different period, which was relinquished by the plaintiff, during the progress of the suit. The claim was decreed by the Judge, and the defendants having separately appealed, their appeals may with propriety be considered together. It has been urged in appeal by Nuwab Khan, appellant, that the reasons pleaded in the answer to the suit were not considered or disposed of by the Judge. Although not noticed seriatim, the decision does not lead to the inference that they were over looked. The words are " the defendants have little to plead in answer except irregularity in the manner in which the suit is brought," and the decision proceeds to overrule the latter objection. The Judge considered the other reasons of no weight, but the omission of further detail does not, as the appellants argue, render the judgment incomplete. It has now been urged that the present suit is opposed to the rules in the Circular Order of the 11th January 1839, but this plea, to be of any force, should have been urged in the previous suit, when the question of right was tried. Any objection on the score of the claim having been split by separate suits for portions of the property is not applicable to a supplemental suit for possession, after the right has once been decreed. It has further been urged on the part of the appellant, Nuwab Khan, that the deed of relinquishment filed by him in the last suit was obtained from him by false promises of conditions, which had not been fulfilled, and that the decree founded on it could not stand. The Courts will, however, be slow to allow of the impugnment of a document formally acknowledged, and made the ground of a former decree, and there is nothing in the evidence adduced by the appellant of weight or credibility sufficient to support the assertion. With regard to the wasilút, it is pleaded that part of the claim had already been included in a former suit, which had been dismissed, and that it could not be revived. The plea is doubly incorrect. In the former suit, the decision was of nonsuit, not dismissal, and the present decree does not include any portion of the wasilat then sued for. An objection in general terms has also been taken to the wasilât accounts. These have been filed in the form indicated by the Circular Order No. 1056 of the 29th May 1843, and as no exceptions in detail have been taken to them, the objection is futile. The same pleas have been adopted by the mortgagee in his appeal, and he argues, in addition, that his mortgage transaction was with the co-appellant Nuwab Khan, who had put him in possession of the mortgaged property, and that as he was no party to the suit between the respondent and Nuwab Khan, in which the deed of relinquishment was filed, his tenure was valid against the decree. This plea is not admissible. The decree being on a claim for a right by inheritance, necessarily avoided the mortgage interests created by Nuwab Khan during the period of his adverse possession, and the appellant is clearly not in a position to resist the decree, unless he could show that it was a fictitious and collusive one, which had been obtained by the parties to it in order to prejudice his interests, but this is not even pleaded. The decision is accordingly affirmed with costs. The 30th June, 1851. Present: H. W. DEANE, CASE No. 94 OF 1851. H. W. DEANE, Judges, Special appeal from the decision of C. CHUTREE SINGH, (Plaintiff), Appellant, versus SADHOO SINGH AND OTHERS, (Defendants), Respondents. THE decision appealed from is in the volume of decisions of the month. The suit was for the redemption of a parcel of land known by the name of Surwurpoor included within the survey area of mouzah Soopahpoor, on payment of Rs. 112, the mortgage money. The defendants pleaded that the land indicated by the area and boundaries in the plaint formed an integral part of mouzah Soopahpoor, and could not be separated from it, that the original mortgager's rights in Surwurpoor were not distinct from those in Soopahpoor, and that the mortgage money was Rs. 1200, not 112. The Moonsiff overruled the first objection, and finding the proprietary right in Surwurpoor to have been exclusively the mortgager's, and the amount of mortgage money to be the sum stated in the plaint, gave a decree. In appeal, the Judge concurred in the decision of the Moonsiff on the merits, but, considering the first plea fatal to the suit, dismissed it. A special appeal was granted to try whether the reason of the Judge for the dismissal of the suit was sufficient. The Court observe that the reason is made to rest rather on a question of fiscal expediency foreign to the points at issue between the parties than on judicial right, and they do not concur in the opinion of the Judge that the mere fact of the inclusion of a parcel of land within the survey area of a mouzah at the time of settlement is sufficient to extinguish all individual rights in the parcel, in the face of the facts of the case, which the Courts have found. The respondents, who hold solely by the mortgage tenure, are clearly not in a position to resist the redemption on such a plea, and the right having been determined in the appellant's favor, the only point remaining for decision in the case was, whether sufficient evidence had been furnished to the locality of the land to serve for a decretal order and obviate any difficulties in the execution. The Court, accordingly, annul the decision, and remand the case for a complete judgment. The costs as usual. CASE No. 115 or 1851. Special appeal from the decision of SHEODEEHUL RAI AND OTHERS, (Defendants), Appellants, versus BABOO JYNARAIN SINGH, (Plaintiff), Respondent. THE plaintiff brought a summary suit in the Revenue Court for the recovery of an arrear of rent for the year 1255 Fuslee, which was dismissed, the Collector being of opinion that there was no sufficient proof of payment of rent in past years. The suit was then renewed in the Civil Court, and the arrears for the years 1256 and half year of 1257 Fuslee were included in the action. A decree was given by both Courts. A special appeal was admitted to try, whether the suit could be heard under Section 6, Regulation VIII. of 1831. The suit it appears was brought after the expiration of the period prescribed by law from the date of the Collector's decision, and, as regards the arrears of 1255 Fuslee, it is barred. The decision is therefore amended by the exclusion of the rent decreed for 1255 Fuslee, or Rs. 15-13, from the decree. The costs will be proportioned to the sum decreed. -48A00 The 30th June, 1851. Present: A. W. BEGBIE, Judge. CASE NO. 9 OF 1851. Regular appeal from the decision of J. P. Mussumat Ranee, widow of Rajah Rugnath Singh, deceased, (Plaintiff), Appellant, versus Ranee Bysee and Ranee Poomar, and the Collector of THIS was a suit to recover possession of twelve mouzahs constituting the talooqua of Nahul, the jumma being Rs. 6,937. The talooqua in question is stated by the plaintiff to have been |