to Jograj, and also that he should not be made liable for any amount of interest prior to the date on which the final division of the assets was made. Had a stranger become the purchaser, Jograj would not, even constructively, have had the money to make over to the plaintiff, until the final adjustment of disputes with the other decreeholders, and it does not at all affect the question that Jograj, happening to become the purchaser, was constructively in possession of the money, because, according to usual practice, he put into Court receipts for the amount of the sale price. It may be remarked too, that this demand for interest is at variance with the plaintiff's own statement in his petition of plaint, for he therein distinctly allows that he consented to await a division of assets. So far the judgment of the Principal Sudder Ameen is upheld. The Court differ from the Principal Sudder Ameen as respects the deductions made on the ground of the plaintiff's want of vigour in preferring his claims on the attached property, since the agreement does not annex any penalty to negligence or indolence, on whichever side manifested, but clearly leaves it to be understood that of the whole sum realized, be it what it may, half shall be assigned to one party, and half to the other. This objection on the score of the plaintiff's negligence forms a new plea, and if it were a sound objection, it is most improbable that it should not have occurred to the defendant, when, in 1847, he refused to divide money, but expressed his readiness to divide property, under certain reservations. The roobakaree of Court dated 22nd June 1847, which is filed with the record, followed the order for a rateable division, and it shows that it was not in virtue of any such objection as is now raised, that the defendant disputed the plaintiff's demand. The decision of the lower Court is altered in favor of the plaintiff as explained in the foregoing remarks. Present: The 29th July, 1851. CASE No. 165 or 1849. Regular appeal from the decision of JOGRAJ, (Defendant), Appellant, versus GIRDHAREE LALL, (Plaintiff), Respondent. THE particulars of this case are given in case No. 152 decided this day. For the reasons therein assigned, the appeal is dismissed. Present: The 29th July, 1851. CASE No. 110 or 1851. A. W. BEGBIe, H. W. DEANE, Judges, Special appeal from the decision of Doobé SURNAM SINGH AND OTHERS, (Defendants), Appellants, versus JESREE SINGH AND OTHERS, (Plaintiffs), Respondents. Mohuntpore THE plaintiffs in this action lay claim to a 2-anna 8-pie share or one-sixth of the entire mouzahs of Indrowlee, Manheree, Mulkow lee hore Oodeypore, and May, pleading that the above share devolves on them by inheritance. They assert that they were in possession till 1253 Fuslee Sumbut, when the Settlement Officer ejected them. It is urged in defence that the claim being founded on inheritance, and the plaintiffs having sued formerly for the share accruing to them from the common ancestor Luchmun Singh, the plaintiffs cannot renew a claim for a part of the property of Luchmun Singh, inasmuch as it should have been included in their previous suit. Both the lower Courts found the fact of possession up to the A special appeal was allowed to try, whether, this being a claim founded on a right of inheritance, it should not have be included in a former suit instituted by the plaintiffs in 183: and whether the allegation of the plaintiffs, that they were then in possession of the property now claimed, is a sufficient reason for not having included it in their previous suit. The Court find from the record of the case that the plaintiffs sued in 1832 for one-third of half (or in the proportion in which they sue now) of the talooqah in which the abovenamed villages are situated, alleging distinctly that they sued for the full extent of their ancestral share, and that they were in possession, but desired to have through the Court dukul kamil and partition. That suit resulted in a decree in their favor. The present claim is therefore inconsistent with the claim urged previously; and with respect to a plea advanced by the plaintiffs that they were at the time of the first suit, in possession of the rights they now seek to recover, so as to render unnecessary the inclusion of them in the previous plaint, the Court observe, that the same reason, which induced the plaintiffs to sue for other property of which they declared themselves to be in possession, would have equally induced them to sue for this property, even though they were in possession of it. The necessity or expediency must have been exactly the same in both cases according to the terms of their former plaint; the property now sued for falls within its scope; if so, the same suit is brought a second time, which is illegal; if not so, the institution of the present suit amounts to a splitting of the cause of action, which is opposed to the practice of our Courts, and is in contravention of the rule laid down in the Circular Order of 11th January 1839. The Court, for the above reasons, annul the decisions of both the lower Courts, and dismiss the claim of the plaintiffs. CASE NO. 160 of 1851. H. W. DEANE, S. S. BROWN, Offg. Judge. { Special appeal from the decision of J. S. Clarke, Esq., Judge of Azimgurh, dated 7th September 1850. SREE GOPAL AND OTHERS, (Plaintiffs), Appellants, versus DABEEDIAL SINGH AND OTHERS, (Defendants,) Respondents. THE plaintiffs are the zemindars of Madhoram puttee, and the defendants are proprietors of Buhadoorpore. On the occasion of the demarcation in 1834, preparatorily to the general Settlement, it became necessary to mark out the boundary between the two estates which had been in dispute for many years previously, and the Deputy Collector, who was charged with the duty, appointed a punchayet for that purpose, under the provisions of Sections 6 and 7, Regulation IX. of 1833, who, after a local enquiry which lasted more than two months, gave in an award. In the award, the rights and holdings of both parties are set down in detail, and 119 beegahs 16 biswahs of land designated as a quarter share of Shahpore, which were recorded as being at that time in possession of talooqah Buhadoorpore, were formally awarded to Madhoram puttee. No objection having been advanced by either party to the award, the Deputy Collector recorded an order accepting it as a valid one. At the time of the assessment, about a year afterwards, the Collector found some difficulty in ascertaining where the land awarded to Madhoram puttee was situated, and passed an order that the Settlement should be made on the basis of actual possession. The plaintiffs eventually instituted a suit for possession of the 119 beegahs 16 biswahs under the award, and obtained a decree from the Principal Sudder Ameen, which was reversed by the Judge in appeal under the statute of limitation. On special appeal, the reversal was overruled, and the case remanded. On its retrial, the Judge was of opinion, that the suit was opposed to the ruling of the Court in the Construction 895, and the plaintiffs were nonsuited. A special appeal was admitted to try, whether the Judge's order of nonsuit under the Construction was correct. The point ruled in this Construction was that the decisions of punchayets, appointed under Regulation IX. of 1833, should be enforced by the Revenue Authorities, judicial functionaries having no power to carry them into effect. It arose from a reference to the Court, in regard to the authority possessed by the Civil Courts to give a summary enforcement to such awards on the application of the parties in the manner prescribed for the execution of private arbitration awards in Clause 2, Section 3, Regulation VI. of 1813, and is inapplicable to this case. The appellants have incautiously used in their plaint, the words ijraee fysala as indicative of the object of their suit, but the ground of their action is clearly explained. They have come into Court, as any other claimant might do, to obtain possession of a right under an alleged title deed, and there is nothing to prevent the case being heard. The fact of the land awarded to them being traceable, together with the validity of the award, and any other questions that may present themselves, on the points, which the suit has been brought to determine, and which should be tried. The Court therefore annul the decision, and remand the case for retrial in advertence to the foregoing remarks. CASE No. 51 or 1851. S. S. BROWN, Offg. Judge. Regular appeal from the decision of A. Lang, Esq., Judge of Allahabad, dated 26th December 1850. MR. BERRILL AND OTHERS, (Plaintiffs), Appellants, versus SHEO SUHAE, (Defendant), Respondent. THE suit was brought by the plaintiffs as managers of the Inland Transit Company to recover Rs. 1,580, damages with interest for breach of contract. The particulars of the case are given in the Judge's decision in the printed volume. It appears that whilst the suit was in progress, the parties agreed to submit their case to arbitration. Arbitration bonds were executed, specifying a certain period for the completion of the award, on the expiration of which the arbitrator's powers were to cease, and an injunction to that effect was addressed by the Court to the arbitrator, who was desired to send in his award on the date fixed. An extension of the time was afterwards allowed by the Court, the latest date being fixed for the 27th September 1850. The award was completed on that date, but did not reach the Court until the following day, when the Judge set it aside on the |