one body. If this be the rule, let it be declared so, and let it be indispensable that the Collector in all pergunnah Settlements be made a party. Why Government should take part in this particular case with the defendants, and not in every Settlement case, I cannot understand. Government is interested for the welfare of all its subjects, and the Officers of Government ought, in my poor opinion, to deal with all alike; whether a pergunnah be in question or only a small hamlet. The influence of Government ought not, in my humble opinion, to be exercised in particular cases, unless such a course is authorized by law. Reason, law and convenience, show that the suit is rectly brought. There may be 100 different individuals in the pergunnah claiming under 100 different titles. By trying each title distinctly and separately, intricacy and confusion will be avoided, and the Court will have before it distinct, clear and intelligible issues to try; the rules and forms of Court will be more easily observed, the laws applicable to each title separately applied, and distinct and intelligible judgments be passed, which shall be capable of being executed. Mingle all the adverse claims together, and you have a mass of confusion, a labyrinth, a perfect chaos; 100 titles of different kinds; 1,000 pleas of different sorts, and though apparently one suit virtually, the Court will have to try 100 cases, for what ought to be done by the parties, the Court must, viz., separate the pleadings with reference to the 100 titles in order to compare each with the title of the plaintiff with the object of ascertaining which is the better title. The judgments must be separate, the costs separate, and the execution will be issued out 100 times separately. The very idea of the tumult and disorder, the picture of the plaintiff standing unsupported, in the midst of 100 opponents, who before were unconnected, now making common cause, and aided by Government, is appalling. Is all this confusion and disorder necessary or desirable in order to try so simple a question as whether the plaintiff was lawfully and justly dispossessed from the talooqua in dispute? I now proceed to consider the plea in demurrer. It is pleaded by the defendants, that plaintiff having been dispossessed in 1817, her claim is now barred by time. This objection appears to me to be valid. An order of nonsuit, I hold to be a declaration that the plaintiff has as yet brought no suit which the Court can try. If then plaintiff brought no suit on the 27th May 1819, it is manifest that now, after a lapse of thirty years from the date of dispossession, she has lost her remedy. The decision of the Sudder Court, dated 23rd March 1847, declares, that the Court have no other course to pursue but to give the appellant the benefit of the law, and the Court determined that the plaintiff was entitled to a nonsuit. It first occurred to my mind that the intendment of the Court's decision was, that the period, which had elapsed from the 27th May 1819 to the 23rd March 1847, should be rejected in computing the time, with reference to the law of limitations, and the decision of the Sudder Court, Western Provinces, in the case of Bishoon Dial Dass and others, versus Unmool Singh and others, decided 6th June 1843, which, in concurrence with the decision of the Calcutta Court in the case of Imam Buksh Khan, versus Nuwab Delawur Jung, decided on the 22nd June 1807, in which case the cause of action arose in 1190 Fuslee, and the second suit was instituted in 1205 Fuslee, fifteen years after, rules, that the time a case is pending in Court shall, on the claim being nonsuited, be rejected from the computation of time. Defendants' party however file copy of a decision of the Western Court of a later date, in the case of Sheo Narain Chowbé, versus Baboo Bulram Dass, decided on the 28th April 1845, in which it is distinctly declared that the time a case is pending in Court on being nonsuited shall not be rejected in the computation of time. The grounds of that decision are, that when the Sudder Ameen nonsuited the plaintiff he ought to have appealed. In the present case, the nonsuit has emanated from the Sudder Court, from whose order there was no appeal in the case: it appears to me therefore that the plaintiff has no remedy, and that the claim must be thrown out as barred by time. Costs against plaintiff." From this decision, the plaintiff appeals. On the 6th March 1849, the record of the case was received from the Zillah, on the 22nd January 1850, the respondents filed a vakalutnamah; but their vakeel dying, the hearing of the case was, in consequence, delayed. On the 22nd January 1851, they appointed another vakeel; who, on the 25th of that month, represented that the plaintiff had died on the 4th idem. The usual notice was issued for the appearance of her heir; and, on the 10th February, a person, styling himself "Rajah Jugnath Singh, heir and adopted son" of the deceased plaintiff, appeared, by petition, and claimed to represent her in the appeal. The respondents' vakeel objected to this application, stating, that the plaintiff had left no heir, and that the petitioner was an impostor. It became necessary, therefore, before proceeding farther with the appeal, to dispose of this question; and, for the following reasons, I have come to the conclusion that the application of the petitioner, to carry on the suit, as the representative of the deceased plaintiff, is inadmissible. 1st. From 1833, up to the date of the Ranee's death in January last (a period of eighteen years), no mention was made by her of the existence of the petitioner, or of his adoption, either by herself, or the deceased Rajah. She herself has throughout prosecuted the original suit, and appeal, as the heir of the Rajah. 2nd. In the three petitions presented by the petitioner, to this and the Zillah Court, he represents himself as the adopted son of the Ranee. Now a Hindoo widow cannot adopt without the permission of her husband. It must be satisfactorily proved that the husband had, previously to his demise, granted such permission. But this is not even alleged by the petitioner, in his petitions above referred to. He seems to have thought that the Ranee was competent to adopt of her own free will. 3rd. The witnesses produced by the petitioner in the Court of the Principal Sudder Ameen at Bareilly, to prove his adoption, give evidence quite opposed to the statement of the petitioner himself; they declare, that the Rajah adopted the petitioner, in his life-time, and made over the management of all his affairs to him; a statement not only inconsistent with that of the petitioner, but with the proceedings of the Ranee, who would, of course, have made known the circumstance to the Court, and have caused the petitioner to be recorded as the Rajah's heir instead of carrying on the suit herself. It is evident that the petitioner having, subsequently, discovered the mistake he had made in representing himself as the adopted son of the Ranee, without reference to her husband's consent to such a measure, sought to rectify it, by instructing his witnesses to depose in the manner they have done. I accordingly direct that the case be struck off the file, in consequence of the abatement of the appeal by the death of the appellant without heirs. The 30th June, 1851. Present: A. W. BEGBIE, Judge. CASE No. 130 of 1850. Regular appeal from the decision of MODUZZUM KHAN AND OTHERS, (Defendants), Appellants, versus KHOONDUN SINGH AND OTHERS, (Plaintiffs), Respondents. THIS was a suit to obtain possession, by redemption of a mortgage, of ten biswahs in mouzah Utrowlee, and to recover Rs. 8,438-9, principal and interest of the surplus mesne proceeds. Plaintiffs state that the ten biswahs in question are their hereditary property; that, on the 5th March 1826 a. D., Nuwul Singh (the father of the plaintiffs, Khoondun Singh and Sher Singh) in conjunction with Nusrut Khan (grandfather of the plaintiffs, Seroo Khan and Bhikum Khan) and Chutter Singh (who is represented by Dowlut Singh and Kesree Singh, plaintiffs) mortgaged the property to Bhugwan Dass and Seeta Ram, for Rs. 1,714-5, and, at the same time, executed a deed of kutkinnah for the period of four and a half years, viz. from the Rubbee of 1233 to the end of 1237 Fuslee, agreeing to receive a malikana allowance of Rs. 107-2-6 per annum and no more, and possession was given to the mortgagees on the 1st July 1826. The mortgagees, after some years, submortgaged the property to Moouzzum Khan and others, defendants, who were claimants to the zemindaree, though not in possession. These latter brought a suit against plaintiffs to recover two-thirds of the ten biswahs, but were nonsuited on the 20th July 1841. Plaintiffs then sued Moouzzum Khan and others for redemption of the mortgage, but were likewise non-suited on the 7th March 1843. Moouzzum Khan and his party having subsequently obtained a decree against Bhugwan Dass and Seeta Ram, the original mortgagees, obtained possession of the estate, and, notwithstanding the mortgage has been more than redeemed by the profits, they refuse to relinquish possession. Mittum Singh and others, defendants, are likewise descendants of the original mortgagees, but as they have coalesced with Moouzzum Khan's party in the sub-mortgage, and would not unite with plaintiffs in this suit, plaintiffs had no option but to make them defendants; but they express their readiness to restore to them their portion of the ten biswahs, when the same shall have been redeemed. The defendants, Moouzzum Khan, Methum Singh and others, reply, that plaintiff's have a right to a very small portion only of the ten biswahs, that as defendants are themselves co-proprietors, plaintiffs have no right to sue them for wasilát: they urge that plaintiffs have not, in their present suit, rectified the irregularities which led to their being nonsuited in their former suit. Defendants have purchased the mortgage held by Bhugwan Dass and Seeta Ram, in which transaction Mendoo Khan (the father of Seroo Khan and Bhikum Khan plaintiffs) was a partner, his sons, therefore, can have no claim to wasilát from them. Sher Singh and Khoondun Singh, plaintiffs, have, moreover, given receipts to the original mortgagees, Bhugwan Dass and Secta Ram, for the vasilât. They can, therefore, sue for no more than the redemption of their own portion of the estate. Defendants, further, hold two other bonds of the plaintiffs, which have been tacked on to the original mortgage, to the amount of Rs. 1,068, and they have incurred sundry heavy charges connected with the estate: so that it will be found, on calculation, that a balance is due to them, instead of from them. The mortgagees, Bhugwan Dass and Seeta Ram, plead that, having transferred their mortgage to Moouzzum Khan and others, they have no personal interest left in the matter under litigation, and that Moouzzum Khan and others are solely responsible to the plaintiffs. The Principal Sudder Ameen gave a decree in favor of the plaintiffs. He observed that the plaintiffs were fully justified by judicial precedents in suing for the redemption of the whole ten biswahs; that as all the representatives of the original mortgagers are joined in the suit, the objections, which necessitated the nonsuit in the former case, were obviated: he determined the balance due to the plaintiff's to be Rs. 5,903-4-94 instead of Rs. 8438-9, as claimed by them. He disallowed the deductions claimed by the defendants on account of balances of rent, said to be due from plaintiffs, and other cultivators; nor would he regard the defendants in any other light than that of mortgagees; it being improper in a suit for redemption of a mortgage to determine the specific shares of the parties. The Principal Sudder Ameen did not consider the mere entry of Mendoo Khan's name in the bond given to the original mortgagees a sufficient ground for withholding mesne proceeds from his representatives, Bhekhun Khan and Seroo Khan, seeing that Mendoo Khan's name was not in the byenamah, and because the bond itself is still the subject of judicial enquiry. The receipt for wasilât, purporting to have been given to the original |