Bolee Beebee, Dan Beebee, and Taj Beebee. The defendant, Hoossein Buksh Khan, has relied, the Court remark, on possession in virtue of the hibbehnamah from Shumsheer Khan, and his witnesses depose to his possession in general terms; the hibbehnamah would, however, appear to have been authoritatively declared to be invalid, and if so, it is not open to Hoossein Buksh Khan first to plead possession in virtue of the hibbehnamah, and when that plea fails him, to plead possession irrespectively of the hibbehnamah. The Court, entertaining no doubt whatever that the suit may be lawfully tried on its merits, remand it to the file of the Principal Sudder Ameen for that purpose. Present: The 27th January, 1851. A. W. BEGBIE, H. LUSHINGTON, Judges, CASE No. 119 or 1850. Special appeal from the decision of RAJAH ODEYNARAIN MULL, (Plaintiff), Appellant, versus THAKOOR SINGH AND OTHERS, (Defendants), Respondents. THIS suit was brought to obtain possession of eight beegahs of land, stated to appertain to the plaintiff's village of Acre Berinjee, together with wasilát, from 1244 to the rubbee kists of 1255 Fuslee. The plaintiff's claim was dismissed by the Court of first instance, and the decision was affirmed in appeal by the Principal Sudder Ameen. A special appeal was allowed to try, whether the lower Court has not erred in dismissing the plaintiff's claim under the statute of limitations, inasmuch as the plaintiff was admitted to engagements by the Revenue authorities within 12 years from the date of institution of suit. The Court are not disposed to think that the judgment of the lower Court can be disturbed under the above certificate. The plaintiff is proprietor of the village of Acre Berinjee, and the defendants own the adjoining mouzah of Kuthowleea. At the settlement effected in 1836, the piece of land in dispute was measured within the rugbeh of mouzah Acre Berinjee. It was however cultivated by the defendants, residents of Kuthowleea, and a summary suit by the plaintiff for rent of the land was thrown out by the Revenue Court. The plaintiff then applied to the Civil Court for an order which should recognize his proprietary title to the land. The Court of first instance found that it had been formerly settled with the defendants as part of mouzah Kuthowleea, and that they had been in possession of it from time immemorial, and the Court rejected the plaintiff's claim under the limitation law. appeal was carried up to the Court of the Principal Sudder Ameen, and though that authority has not found the fact of former settlement with the defendants so distinctly as the Sudder Ameen had found it, he yet has entirely concurred with the Court of first instance in holding that possession by the defendants had been proved for a length of time sufficient to bar the cognizance of the suit. The circumstance, that the disputed land was measured within the ruqbeh of the plaintiff's village in 1836, whether this were brought about by fraud on the part of the plaintiff, or inadvertence on the part of the settlement authority, cannot, in the opinion of the Court, in any way affect the right of the lower Courts to pronounce the decision at which they have arrived. The appeal is therefore dismissed. CASE NO. 198 of 1850. A. W. BEGBIE, }" H. LUSHINGTON, Judges, Special appeal from the decision of A. Lang, Esq., Judge of Allahabad, dated 29th May 1850. SEETUL BUKSH, (Plaintiff), Appellant, versus ADHAR SINGH AND JURBUNDHUN SINGH, (Defendants), Respondents. THE particulars of this case will be found at page 129 of the printed decisions of the Zillah Courts for May 1850. A special appeal was admitted to determine, whether the plaintiff's suit has been correctly found by the lower Courts to be barred by the statute of limitations. The plaintiff in this suit is the brother of Gundhuruf Singh, (deceased), and uncle of the two defendants. Gundhuruf Singh died in 1843, and his sons, the defendants, have been recorded in the Collector's books in succession to him. The plaintiff has brought suit for his share of the property, which, as he asserts, he held conjointly with Gundhuruf Singh. The Principal Sudder Ameen rejected his claim, as barred by lapse of time. The Judge affirmed this decision in the following words. "The Principal Sudder Ameen has dismissed the plaintiff's claim, considering the pleas set forth by the defendants established, and as it is quite clear that the plaintiff's claim is inadmissible under the limitation Regulations, the defendants having been in undisturbed possession of the property claimed for considerably more than 12 years, I see no reason for interfering with the Principal Sudder Ameen's decision; without summoning the respondents, therefore, I dismiss the appeal." The Court consider the above finding of the Judge to be too vague. The record of the case shows, that at the settlement in 1833, Gundhuruf Singh expressly allowed the right of the plaintiff to a share in the property, and assigned, as his reason for not effecting a division, that the property was too small to be divided. The question, therefore, which arises, is, whether Seetul Buksh maintained, until the death of his brother in 1843, possession of the right, which, in 1833, his brother Gundhuruf Singh had admitted to belong to him. If Seetul Buksh did maintain such possession, the suit is clearly not barred; if not, it is incumbent on the Judge, in deciding that the suit is barred under the limitation law, to fix the period of dispossession. The suit is remanded for retrial to the Judge's file, with reference to the above remarks. The 29th January, 1851. CASE No. 29 or 1851. Special appeal from the decision of MOULVEE GHOLAM HUSSUN AND OTHERS, (Plaintiffs), Appellants, versus SHAH MUHBOOB ALLUM AND OTHERS, (Defendants), Respondents. THE suit was instituted to recover Rs. 8-11, the rent of a field (No. 454) for the year 1255 Fuslee. The moonsiff finds that the plaintiffs have collected rent from the ryot, who cultivates the field, from the time of the settlement of the village to the year 1254, and that the land is recorded as belonging to the plaintiffs. A special appeal was granted to try, "whether the Principal Sudder Ameen has acted in conformity with judicial usage in having directed the plaintiff to establish his right to the field before he can sue for the rent." It appears that a butwarrah had been made between the parties of their respective fields, but never carried into execution. The defendants, after a long period, applied to the Revenue authority to enforce this butwarrah, but their application was unsuccessful. The butwarrah not having been carried into effect, and the land having been recorded as the property of the plaintiffs, the Principal Sudder Ameen acted irregularly in referring the plaintiffs to a regular suit to establish that right to the land. The point on which the decision rests, is, whether the plaintiff's have been in possession of the land and have received the rent from the time of the settlement to the year 1254 Fuslee. The Principal Sudder Ameen's decision is reversed, and the suit remanded, in order that he may pass another decision with reference to the foregoing remarks. The 29th January, 1851. CASE No. 28 OF 1851. Special appeal from the decision of GHOLAM HUSSUN, (Plaintiff), Appellant, versus FUSSEE-OOLLAH, (Defendant), Respondent. THE suit was brought for the recovery of five biswahs of land, forming part of a portion comprising one beegah and a half. A special appeal was granted to try, "whether the Principal Sudder Ameen had not acted contrary to judicial usage in having omitted to determine an important plea material to the issue." The plaintiff's right to the quantity of land, claimed by him, is not denied by the defendant. The Moonsiff, after going himself to the spot, and making a careful investigation, decided that the five biswahs sued for was included in the one and a half beegah. The Principal Sudder Ameen, although the suit was brought to set aside the entries in the putwarree's papers, as erroneous, appears to have decided the case on the putwarree's evidence, he reversed the Moonsiff's decision without determining whether the land formed a portion of the one and a half beegah or not. As the Principal Sudder Ameen has omitted to determine whether the five biswahs is in excess of the one and a half beegahs of land claimed by the plaintiff, his decision is reversed, and the suit remanded, in order that he may consider this point, and pass a decision with reference to the plea of the plaintiff, the determination of which is material to the adjudication of the suit. |