lodged in the banker's hands by Aitma Ram was not received by the plaintiffs, the plaintiffs might sue for it. Accordingly, the Principal Sudder Ameen threw out the claim.

I concur in the judgment passed by the Court below. The soolehnamah was filed by Soondur Dass and Ghunseam Dass through their duly constituted vakeel. In its letter not less than in its spirit, it is a complete renunciation of all demands on the estate which they had held in mortgage. It is true that the son Ghunseam Dass, in consequence, as it would seem, of some dispute with the purchaser Aitma Ram, afterwards presented a petition for the recall of the soolehnamah, on the plea that he was not a party to it; but this application was unheeded by the Judge, and the case was struck off the file in virtue of the soolehnamah, with a full knowledge at that time possessed by the Judge, and a notice by him in his roobakaree, of the attempted revocation. The plaintiffs were not then allowed, nor can they now be allowed to recede from an act advisedly performed. The appeal is dismissed.

The 7th July, 1851.

A. W. BEGBIE, Judges,

Present: H. W. DEANE,

CASE No. 30 or 1851.

{

S. S. BROWN, Offg. Judge.

Special appeal from the decision of S. Fraser, Esq., Judge of Bareilly, dated 26th July 1850.

HEERA SINGH AND OTHERS, (Plaintiffs), Appellants,

versus

BYAN-OOLLAH AND OTHERS, (Defendants), Respondents.

THE particulars of this case are stated in the printed decisions of the month.

A special appeal was granted to determine, whether the Judge's decision is according to law.

The plaintiffs sued under a hereditary title for the separation and possession of the lands of Gungapore Belah attached to puttee Duttee, engagements for which had been refused by them at the time of Settlement, with arrears of profits. The Principal Sudder Ameen recognized the proprietary right as belonging exclusively to plaintiffs, and decreed the possession and separation, but dismissed the claim to profits, and declared the malgoozaree right to be in abeyance. The Judge in appeal concurred in the finding of the lower Court on the facts of the case, and noticed the obvious error committed by the Principal Sudder

Ameen in decreeing during the currency of the existing engagements, possession and separation to a proprietor who had been excluded by his own act, but proceeds to observe, "The present suit has evidently been brought with a view to disturb the Settlement, but as the Settlement was perfectly regular, the action will not lie, and under any circumstances the claim is not regularly assessed." On these grounds a nonsuit was declared.

The Judge's decision leaves it in doubt on which of the two grounds the nonsuit was based, but as the Court do not find that any objection was taken to the suit by the opposite party in either Court on the score of undervaluation, or that there was any self-evident infraction of the rule in Clause 1, note to Article 8, Schedule B, Regulation X. of 1829 to call for a nonsuit, they regard the intention of the Judge to have been rather to nonsuit on the first ground, and they see no reason to interfere with the decision, which is consonant with the decision of the Court in a parallel case, Mookut Singh, versus Urjoon Singh, No. 166, 9th September 1850. The plaintiffs having sued for what the Courts cannot give them, an order of dismissal of the suit would have been more regular, but the appellants cannot be placed in consequence of their appeal in a worse position than before, and the appeal is therefore dismissed with costs.

CASE No. 47 OF 1851.

Special appeal from the decision of C. Allen, Esq., Judge of Furruckabad dated 6th September 1850.

KOONWUR GOOKDIAL SINGH, (Plaintiff), Appellant,

versus

KOONWUR ROSHUN SINGH, (Defendants), Respondents.

THIS case will be found reported at pages 192 and 193 of the printed decisions for Furruckabad for the month of September last.

A special appeal was admitted to try, "whether the Judge's declaration, that the award of a private arbitration for money cannot be made the sole ground of a decree;' and his dismissal of the suit, because with that exception of the award there is no proof in this case of the liability of the appellant for the sum demanded,' be agreeable to law or otherwise."

The Court observe that the question mooted in the certificate of special appeal has already been decided by this Court in the case of Punchum, kussodhun, appellant, versus Purumsookh, respondent, under date 14th January 1846, in which the cause of action was precisely the same as in the present case. On that occasion the Court ruled, that "the engagement to arbitrate, and to fulfil any award which may be passed thereon, must be regarded in the same light as any other engagement between parties, capable of fulfilment, and the plaintiff may, therefore, bring his action to recover any amount adjudged by the arbitrators to be due to him." The rule above recited must govern the present case also, and the Court, accordingly, annul the decision of the Judge, and remand the case to be tried on its merits, or in other words, that enquiry may be made into the fact of arbitration, which is denied by the respondent, and judgment passed agreeably to the result of that enquiry. The Court do not understand the Judge to have recorded any opinion on this point. Had such been the case, the appeal might have been at once disposed of by this Court, without the necessity of a remand.

Present:

CASE No. 60 or 1851.

The 8th July, 1851.

A. W. BEGBIE,

H. W. DEANE,

Judges,

S. S. BROWN, Offg. Judge.

Special appeal from the decision of R. J. Tayler, Esq., Judge of Jounpore, dated 15th August 1850.

MUJJOO SINGH, (Plaintiff), Appellant,

versus

RAJAH SHEO GHOOLAM DOOBE, (Defendant), Respondent. THIS case will be found reported at pages 92 and 93 of the printed decisions for Zillah Jounpore for the past year.

A special appeal was admitted to determine, " whether the reasons assigned by the Judge for giving a decree in favor of the defendant agreeably to the jummabundee papers are sufficient, and according to law."

The Court are of opinion that the decision of the Judge is erroneous, and cannot be sustained, the reasons assigned by him, for dismissing the appellant's claim, are stated to be "because the ishtechar at the Settlement Court was published after the decree was granted," and because" the plaintiff neither objected or petitioned to have the jummabundee altered," and it is further

stated that "each year's jummabundee exhibited the land and jumma, as stated by the defendant." The Court observe, that it is apparent on the record, that so far back as December 1840, the rate per beegah, payable by the appellant, had been fixed by a regular decree of the Civil Court at one rupee, and that in 1847, the defendant obtained a decree against the appellant, for Rs. 54-11 on 54 beegahs 14 biswahs of land; being exactly the rate previously fixed by the decree of 1840. The demand now made by the defendant is for Rs. 68-6, on the above quantity of land, being at the enhanced rate of Rs. 1-4 per beegah. The statement of the respondent, therefore, that the appellant has always cultivated this land, at the rent now sued for, and the remarks of the Judge, that " each year's jummabundee exhibited the land and jumma, as stated by the defendant," are not correct, and it is clear, that the jummabundee affixed at the Collector's Office, which the Judge recognizes as the only legitimate standard, whereby to regulate the demands of the zemindar on the cultivators, has, in the present instance at least, been set aside, and superseded by the subsequent decree obtained by the defendant himself in 1847.

The Court for the reasons above recorded, reverse the decision of the Judge, and uphold the decision of the Court of first instance, which is in their opinion in accordance with the law.

CASE No. 15 or 1851.

Special appeal from the decision of S. Fraser, Esq., Judge of Bareilly, dated 27th September 1850.

LALJEE, (Plaintiff), Appellant,

versus

THAKOOR MOTEE SINGH AND OTHERS, (Defendants),

Respondents.

FOR the particulars of this case, the reader is referred to the printed decisions of the Zillah Courts for September 1850, page 189.

A special appeal was admitted to try, whether the Judge was authorized to set aside the plaintiff's claim of preemption.

The Court are of opinion that the main point on which the decision in the present suit must turn has not been tried by the

Judge. The plaintiff's claim of preemption has been rejected, on the ground of delay to urge it, but under the wajib-ool-urz of Settlement, it was not competent to Mookram, the seller, to dispose of the property to a stranger, until the plaintiff, Laljee, had been allowed the option of purchase, and had declined to purchase. It is asserted by the seller that he duly made an offer tò Laljee, while it is pleaded by Laljee, on the other hand, that the transaction was studiously concealed from him. It will depend on the value which the lower Court may attach to these pleas, whether the claim of Laljee is sustainable or not.

The suit is therefore sent back to the Judge, in order that he re-try it with reference to these observations.

CASE No. 83 of 1851.

S. S. BROWN, Offg. Judge.

Special appeal from the decision of A. Lang, Esq., Judge of Allahabad, dated 9th September 1850.

RIKEE RAM, (Plaintiff), Appellant,

versus

ZALIM SINGH, (Defendant), Respondent.

THE volume of the printed decisions for the month contains the particulars of this case.

A special appeal was granted to try, "whether the Judge has not contravened judicial usage; that is to say, whether the Judge is not wrong in declaring that the plaintiff's suit to set aside a fraudulent transfer must necessarily be thrown out, because the property in dispute was not attached pending the adjudication of the plaintiff's suit against Khoshal Singh, and because the deed held by the defendant is registered, and that held by the plaintiff not registered; whereas the claim of the plaintiff in the present suit is founded on the decree of Court, formerly passed in his favor, not on the deed of sale which he holds."

The Judge's decision is, in the opinion of the Court, erroneous. He has adopted so much of the reasoning of the defendant as is of no force, and has omitted a finding on the only plea in defence, the proof of which would justify the Court in withholding from the plaintiff the decree he seeks. It was nothing for the defendant to plead in answer, and for the Judge to urge in his decision, that the plaintiff did not attach the property