CASE NO. 124 OF 1851.. } Judges, S. S. BROWN, Offg. Judge. Special appeal from the decision of F. P. Buller, Esq., Officiating Judge of Furruckabad, dated 25th January 1851. NURUNJUN SINGH, (Defendant), Appellant, versus PERSHAD SINGH, (Plaintiff), Respondent. THIS case will be found reported at pages 9 and 10 of the printed decisions for zillah Furruckabad for the present year. A special appeal was admitted "to determine, whether the reasons assigned by the Judge for decreeing in favor of the plaintiff's claim to the bagh, viz., that his separate possession, before the butwarrah, and ever since has been clearly proved, is sufficient." The Court are of opinion that the decisions of the Moonsiff and Officiating Judge, in this case, are contrary to law, and cannot be sustained. It is admitted by the plaintiff, that a butwarrah, or division of the estate, has been effected by the Revenue Authorities in pursuance of a decree of the Civil Court by the defendants against the plaintiff; and, according to the partition, which has not been objected to, the bagh in question was allotted to the appellant. The distinction attempted to be made by the respondent between the land on which the bagh is situated and the bagh itself is absurd: with equal propriety might the right in the land on which grain is sown, be separated from the right to the produce. When a butwarrah is effected, the produce of the land follows the fate of the land itself; were a different rule to obtain, no partition of an estate could ever be effected. Regulation XIX. of 1814 does not exclude baghs from the general operation of the partition. The only exceptions made, will be found in Sections 9, 10 and 11, and these are stated to be dwelling houses, tanks, reservoirs, water-courses and places of worship. The Court, for the reasons above given, reverse the decisions of the lower Courts, and dismiss the plaintiff's suit with costs. Present: CASE No. 74 OF 1851. The 14th July, 1851. A. W. BEGBIE, Judges, S. S. BROWN, Offg. Judge. { Special appeal from the decision of CHEYDEE LALL AND OTHERS, (Defendants), Appellants, versus MUSSUMAT CHOONNYA AND OTHERS, (Plaintiffs), Respondents. FOR the report of this case see pages 167 and 168 of the printed decisions for zillah Cawnpore for the past year. A special appeal was admitted "to determine, whether the Judge was right in overruling the objection uged by the petitioners in their appeal to him founded on the omission of the name of the defendant Mussumat Soonder Koonwur, in the notice of foreclosure issued at the instance of the plaintiff." The Court observe that the Officiating Judge seems to have misunderstood the nature of the objection made by the appellants. It is not urged by them that "in bringing the suit," there was an omission of the name of Mussumat Soonder Koonwur, and that the names of Jodabullee and Minheen Lall, infants and minors, were not inserted as such. The Judge goes on to say: “the difficulty of ascertaining who, among the children and women, ought or ought not, to have been made defendants, is great; all the principal defendants were impleaded, and the amendment made, subsequently, and properly." Reading the above it would naturally be supposed, that the omission of the name of Mussumat Soonder Koonwur had occurred in the petition of plaint, filed in the regular suit in the Sudder Ameen's Court, and in the itilanamah or notice issued therein to the defendants; but such is not the case. The petition of plaint and itilanamah are chargeable with no such defect. They are perfectly regular and correct. The error complained of by the appellants, is to be found in the notice served on the heirs of the original mortgager, at the instance of the mortgagee, under the provisions of Section 8, Regulation XVII. of 1806. In that notice the name of Soonder Koonwur, the widow of Sheo Buksh Race, son of the original mortgager, and guardian of that person's infant sons, Jodabulles and Minheen Lall, was not entered. The notice was addressed to Cheydee Lall, Bustee Lall, Mohun Lall, Ishree Pershad, Ajoodheya Pershad, Girdharee Lall, and Behadoor Singh, guardians of Jodabullee and Minheen Lall, minors; now, it is quite clear, that the abovenamed persons were not the guardians of the minors, but that their mother, Soonder Koonwur, fills that office, and is as such made a defendant in the Civil suit, consequently, the notice of foreclosure was incomplete and informal by the omission to give the prescribed notice to the real guardian of the minors. It further appears, that out of all the persons indicated in the notice, only one, Ishree Pershad, was actually served with it; the rest being reported as non inventi; upon which return being made, a proclamation was affixed at the Judge's cutcherry, and the residence of the parties. But the Court observe, that Section 8, Regulation XVII. of 1806, does not provide for the substitution of a proclamation, in lieu of an unserved notice, in such cases. The words of the law are: "The Judge, on receiving such written application, shall cause the mortgager, or his legal representative, to be furnished, as soon as possible with a copy of it, and shall, at the same time, notify to him, by a perwannah under his seal and official signature, that if he shall not redeem the property mortgaged, in the manner provided for by the foregoing Section within one year from the date of the notification, the mortgage will be finally foreclosed, and the conditional sale will become conclusive." In this respect, therefore, there is another fatal error in the preliminary proceedings of the mortgagee, which vitiates his subsequent suit. It has been ruled by Construction No. 1140 that "if it was proved, that the notice was not duly issued to the mortgager, the plaintiff ought to be nonsuited, leaving him to apply for the issue of the prescribed notice," and there is a precedent of this Court, as * Baboo Pershad Nurain, Appellant, versus Sheikh Ahmud Ali and others, respondents, 12th March 1845. noted in the margin* quoted by the appellants, in which the rule laid down in the Construction referred to was enforced. In suits for foreclosure of conditional sales, the Courts are not at liberty to infer that the mortgagers or their representatives were cognizant of the mortgagee's proceedings. There must be proof of the actual serving of the notice, any deviation from the strictness of this rule, independently of its illegality would offer inducements to fraud on the part of mortgagees. With reference to the foregoing observations, the Court reverse the decision of the Judge, and nonsuit the plaintiffs. CASE NO. 122 OF 1851. S. S. DEANE,} BROWN, Offg. Judge. Special appeal from the decision of Moulvee Mohumed Ruzzee-ood-deen Khan, Principal Sudder Ameen of Azimgurh, dated 27th January 1851. RAM BUKSH, (Defendant), Appellant, versus KHOOSHAL AND BHAGEERUTH, (Plaintiffs), Respondents. THIS was a suit to obtain separation of 2 biswahs, being half of a thoke of five biswahs of mouzah Roberee, and to obtain a proportionate share of the shamilat, and waste and unculturable lands of the entire village, the jumma being estimated at Rs. 275. Plaintiffs stated, that the tenure of the village was imperfect putteedaree, that it was divided into four thokes, one of the four being designated as that of Tej Singh and Ram Buksh, who were proprietors of equal shares therein. The rights and interests of Tej Singh having been put up to auction sale, in execution of a decree obtained by Dowlut Ram and Moohkun Singh; plaintiffs became the purchasers thereof, for the sum of Rs. 551, and obtained a deed of sale from the Collector, and possession. In consequence, however, of their 2 biswahs not being separated from the 2 biswahs of Ram Buksh, disputes frequently occurred, regarding the division of the profits and loss of the thoke. The building ground (abadee) tanks, waste and pasture of the entire village were, also, undivided. Plaintiff's accordingly sued to obtain a division of the lands of the puttee, and of the shamilat land, &c. of the entire mouzah. The defendant, Ram Buksh, replied, that the suit of the plaintiffs was altogether groundless and vexatious, that the lands in the thoke are already divided, that the object of the plaintiffs is to deprive him of the possession of three wells, which defendant had constructed, in his own land, at a large outlay, and that plaintiff's have cut down the trees in a bagh planted by Tej Singh, which they could not have done, had the lands been in common. The Moonsiff dismissed the suit, observing that the lands of each thoke were distinct, previously to the Settlement: that in the deed of sale obtained by plaintiffs, 127 beegahs 4 biswahs of land, with a jumma of Rs. 275, were specified as the share of Tej Singh, who is shown to have had possession of this much, and no more, and plaintiffs admit having been put in possession of the same, and that any interference with possession is barred by lapse of time: that it is shown that the defendant Ram Buksh constructed wells on his own land, at a great expence, and that he would, consequently, be a sufferer by any new division: that from the evidence of the zemindar and putwarrees, it is clear, that Tej Singh and Ram Buksh's lands and assamees were quite distinct; and, therefore, plaintiffs cannot claim more than Tej Singh himself held. The Principal Sudder Ameen reversed the Moonsiff's decision on the following grounds. He was of opinion, that plaintiffs were entitled to a division under the Regulations of Government, and that the defendant, Ram Buksh, had shown no good reason to the contrary. It is true he observes that plaintiffs have possession of 127 beegahs 4 biswahs; but that is only cultivated land. Plaintiffs are entitled to have a division of the uncultivated lands: that the fact of Ram Buksh having constructed wells in his land was no obstacle to a division: and that plaintiffs' vakeel disavowed any wish to interfere with the ownership of them. A special appeal was admitted "to try whether the reasons assigned by the Principal Sudder Ameen for reversing the decision of the Moonsiff and decreeing in favor of the plaintiffs' claim to a division under the provisions of Regulation XIX. of 1814, are agreeable to law; also whether the plaintiffs can claim a larger portion of the puttee purchased by them than is specified in the deed of sale received by them from the Collector." The Court are of opinion that the decision of the Moonsiff is correct, and that of the Principal Sudder Ameen erroneous. 66 It is quite clear, from an inspection of the record of this case, that the village is of the description designated bhyachara, and, as such, not liable to division, under the provisions of Regulation XIX. of 1814, the provisions of which are expressly declared by Section 30 of the Regulation to be " applicable to joint estates held in common tenancy, viz: where all the sharers have a common right and interest in the whole of the estate, without any separate title to distinct lands or mehals forming part of the estate held under one general assessment." The village, to which the present suit relates, does not fall within the above category. In this, as in all other bhyachara villages, the putteedars have separate titles to distinct lands, and they have from time immemorial held separate possession, under those titles. To cause a division under the provisions of Regulation XIX. of 1814, would be manifestly unjust, and completely upset the tenure of all the lands in the village. In conducting the auction sale, every precaution appears to have been taken by the Revenue Authorities, to guard against such a contingency: the actual |