Present: The 23rd July, 1851. CASE No. 159 or 1851. { A. W. BEGBIE,} Judyes, H. W. DEANE, S. S. BROWN, Offg. Judge. Special appeal from the decision of C. C. Jackson, Esq., Officiating Judge of Meerut, dated 25th January 1851. GUNGA DASS, (Plaintiff), Appellant, versus MUSSUMAT MUHTABY, (Defendant), Respondent. THE order of remand the same as in the case No. 137. Present: The 23rd July, 1851. CASE No. 59 OF 1851. Regular appeal from the decision of Mohumed Villayet Ali Khan, Principal Sudder Ameen of Allahabad, dated 14th January 1851. RAJAH CHITPAL SINGH, (Defendant), Appellant, versus MOOZUFFER HOOSSEIN KHAN, (Plaintiff), Respondent. THE suit is brought to recover a loan of Rs. 1,00,000, advanced on mortgage, under an award of private arbitration, dated the 12th December 1849. The loan, it appears, was secured by three separate instruments, executed by the defendant, which conveyed a mortgage interest in the form of a conditional sale with possession of certain estates, and comprised other conditions which in time gave rise to law-suits between the parties. Ultimately, on the recommendation of the Officiating Judge of Allahabad, they consented to refer their respective claims to private arbitration, and agreements to that effect were taken from them, conveying full power to the arbitrator chosen by them to dispose of all claims, of every description arising from the transaction, that were then pending or might afterwards be advanced. This agreement was followed by another of ten days' later date, by which each party binds himself to abide by the arbitrator's decision on the claims contained in the Schedule then submitted. The arbitrator proceeded accordingly to dispose of the conflicting claims of both parties, and after an interval of more than a year, recorded a separate award for the release of the mortgage itself. The award directed that the mortgager, Rajah Chitpal Singh, should repay the loan, and that the estates should be surrendered to him by the mortgagee, who has now brought his action under it. The defendant in his answer, amongst other arguments, denied that the terms of the arbitration agreements empowered the arbitrator to take up and decide this matter, and he pleaded that the award was consequently of no force. The Principal Sudder Ameem was of opinion that the arbitration agreements conferred the requisite anthority to decide the question, but did not assign any particular reasons for his conclusion, and considering the award to be a valid document, he decreed the suit. The Court, after an attentive examination of the two agreements, are unable to concur in this decision. They observe that although the terms of the original agreement were unusually comprehensive in committing all pending claims, and all that might arise thereafter in any way connected with the mortgage transaction to the decision of the arbitrator, without reservation, the intent of the supplemental agreement must be understood as limiting the power of arbitration to the several claims contained in the Schedules given in by each party. It is clear that the object of the second agreement was to reduce the general terms of the first to a definite form from the proviso which it contains that any claim of which proof shall not have been adduced up to a date fixed shall be rejected. The cancelment of the mortgage had not been discussed by either party up to that time, nor was it brought before the arbitrator until long after. The arbitrator, no doubt, acted in good faith, and misled by the terms of the original agreement considered himself anthorized to extend his decision to this matter also, but the Court are of opinion that if the extension of the arbitration to any matters not in the Schedule were desired or deemed necessary, fresh agreements should have been taken from the parties, and that without these the award cannot be held valid as a ground of suit. This is the only point that presents itself for decision in the case; and the rejection of the award will necessarily be fatal to the suit in its present form. The Court accordingly reverse the decision of the Principal Sudder Ameen, and nonsuit the respondent, with costs. The 26th July, 1851. Present: A. W. BEGBIE, Judge. CASE No. 121 of 1850. Regular appeal from the decision of Moulvee Mohumed Abdoor Ruhman CHITUMBURNATH KOOMAR SAMEE, (Defendant), Appellant, versus THAKOOR HURSURN SINGH, mookhteear or MAHARAJAH ISHREEPERSHAD NARAIN SINGH, (Plaintiff), Respondent. THE plaintiff sues the appellant and Hunooman Pershad Singh, defendant, to recover possession of a baráduree, with the ground attached to it, situate in the mohullah Sonarpoora of the city of Benares, value Rs. 6,100, by virtue of a mortgage held by him, under date 8th October 1821, and for Rs. 1,300 being the amount of rent of the said building from 26th March 1838, the date of his dispossession, to the date of the institution of his suit. The plaintiff states his case as follows: Baboo Hunooman Pershad Singh mortgaged the premises in question, on the date above specified, for the sum of Rs. 15,000, to Maharajah Oodut Narain Singh, deceased, plaintiff's predecessor, for the period of twenty years, the deed being drawn out in the name of Ajeet Singh, gomashta of the then Maharajah: possession was given and enjoyed by the latter without any interruption till 1831, when, in execution of a decree, obtained by Dabee Dial Singh and Pertab Narain Singh against Benee Dutt Singh, the latter named the defendant, Hunooman Pershad, as his security, whose property, consisting of houses in mohullah Sonarpoora, were accordingly entered in the Schedule annexed to the security bond, and was attached by order of the Sudder Dewanny Adawlut. This part of the plaintiff's statement is not at all clear; but it would appear, to be his meaning, that when the attachment of Hunooman Pershad's property was made, the barâduree was included in it; and that when it was taken off, the defendant, Chitumburnath's predecessor, Ayarub Koomar managed, in collusion with the Nazir of the Judge's Court, to obtain possession of the baráduree, by virtue of a deed of mortgage, executed in his favor by the defendant, Hunooman Pershad. The plaintiff petitioned the Judge repeatedly, but without success, to recover possession of the baráduree: and was consequently, compelled to institute the present suit. In support of his title, the plaintiff produced two previous mortgage deeds, for the same property, of dates antecedent to his own, which had been made over to him by the previous incumbents. The fact of this property having been mortgaged since 1796 is sufficient to invalidate the mortgage deed under which the defendant, Chitumburnath, claims possession, which is dated in 1819. If the defendant's title were good, the previous title deeds would have been made over to him. The defendant, Chitumburnath replied, that it was evident from plaintiff's statement, that the alleged mortgage deed of 1821, under which he claimed possession of the baráduree, had no existence; that even if it had, there was no proof that the Rajah was entitled to sue on a deed executed in favor of Ajeet Singh; that the amount of rent claimed by the plaintiff was exaggerated; that if, as stated by the plaintiff, he was in possession up to the end of 1837, why does he claim rent only from 26th March 1838? that on the barúduree being attached, in the case of Gungotegir, plaintiff, versus Hunooman Pershad, defendant, and again in the case of Rajah Oodut Narain Singh, plaintiff, versus the same defendant, Ayarub Koomar Samee, (defendant's predecessor) appeared, as objector, under the mortgage deed of 1819, and a deed of sale dated 9th October 1837, when Hunooman Pershad acknowledged the sale; and, after a summary inquiry, the property was released to the objector, in preference to the claim preferred by the Rajah: that it is absurd to suppose, that if the Rajah held the baráduree in mortgage he would have caused it to be attached, in execution of his own decree, and that in the summary inquiry, made in execution of the decree of Dabee Dial Singh and Pertab Narain Singh, plaintiffs, versus Benee Dutt Singh, defendant, it was proved that defendant was in possession of the baráduree in 1837, under his mortgage deed. The defendant, Hunooman Pershad Singh, in his reply, admitted that he had executed the mortgage deed in favor of plaintiff in 1821: but alleged, that the transaction was never completed, because the Rajah's predecessor had not fulfilled its stipulations, and that the defendant's predecessor Ayarub Koomar, had held possession, under the mortgage of 1819, till the 9th October 1837, when he, Hunooman Pershad, sold the property to the said Ayarub Koomar. In short this defendant contradicted the statement of the plaintiff in every material point, and supported that of the other defendant, Chitumburnath. Subsequently, when the case came to a final hearing, Hunooman Pershad retracted all that he had stated in his jawab dawa, alleging that it had been fraudulently given in by his mookhtearkar without his knowledge or consent, and in collusion with the defendant Chitumburnath. He now admitted the truth of the plaintiff's statement; and affirmed, that the latter had held possession of the baráduree under the mortgage deed of 1821, in common with the rest of the property therein specified. The Principal Sudder Ameen decreed in favor of the plaintiff's claim. He was of opinion, that the mortgage deed, produced by the plaintiff, was genuine, both it and the receipt of Hunooman Pershad for the consideration, having been duly registered: a fact incompatible with the assertion of the defendant Chitumburnath of its being a forgery, this view was supported by the subsequent statement of the defendant Hunooman Pershad, and the evidence of plaintiff's witnesses, and it was proved, that the plaintiff was, up to this time, in possession of the rest of the property specified in the mortgage deed; the plaintiff was clearly entitled, also, to the amount of rent claimed by him for the period of his dispossession, it being shown, that the baráduree had yielded this rent, and the defendant Chitumburnath, although he asserts in general terms, that plaintiff has over-estimated the rent, does not specify any other sum as the proper one. The Principal Sudder Ameen believes that, in the confusion arising out of the claims of the several objectors at the time of the attachment, the defendant's predecessor, Ayarub Koomar, by some trickery managed to get possession of the building; and, then, to strengthen his case, fabricated the mortgage deed now produced by him. Until so unexceptionable a deed, as that in possession of plaintiff, is satisfied, neither of the defendants can have any claim to possession. It is not at all improbable, that the first reply of the defendant, Hunooman Pershad, was fraudulently given in, without that person's knowledge. Moreover, it is worthy of remark, that the defendant, Chitumburnath, has not produced the original of the mortgage deed of 1819, under which he affirms, that he obtained possession; nor has he produced any evidence to establish its execution. His predecessor Ayarub Koomar did not even make any mention of it, when he appeared, as oozurdar in the case of Gungotegir, an omission altogether irreconcilable with the supposition of such a deed being then in existence. Neither, has the defendant produced the original of the deed of sale, said to have been executed in 1837, or produced any evidence in proof of it. When the case was ripe for decision, the defendant's vakeel produced copies of the mortgage deed, and deed of sale, alleging that the originals had been lost: a statement not entitled to belief. The probability is, that he was afraid to produce the originals from a fear that they should be declared to be forgeries. The recognition of the defendant's possession, in the summary enquiry cannot be regarded as a sufficient proof of his possession, as these summary enquiries are neces |