wa.

zaree profits within twelve years, though their replication makes it appear that they received a part of the sayer produce; and they urge that the objection, as to limitation, is got over by the expressed opinion in favor of Hingun Singh of the Presidency Court, and by the fact that the possession of Rampergass Singh was possession by force. The Principal Sudder Ameen considered it to be quite clear, however, that as Hingun Singh was not a party to the suit in the course of the decision of which the Sudder Court at Calcutta recorded an opinion favorable to the pretensions of Hingun Singh, that opinion could not be taken into present consideration, and, as respects the plea of forcible occupancy by Rampergass Singh, the Principal Sudder Ameen was of opinion that it is not sustainable, no complaint on that head having been anywhere preferred, and the claim of Hingun Singh, of whatever value it may have been originally, having been extinguished by the tender in 1827 of the bazdaThe suit in which the bazdawa was entered up is essentially the same with the present suit. The plaintiffs urge indeed, that Mirza Ali made Hingun Singh a defendant on the ground of Hingun Singh's possession; but this plea, under the view taken by the lower Court, is idle, the plaintiffs having themselves admitted that Hingun Singh drew no share of the malgoozaree profits, and though the fact that Hingun Singh was in possession of julkur and bunkur is contended for in the pleadings, the Principal Sudder Ameen held the averment to be unsupported by adequate proof, especially as Hingun Singh declared in the body of the bazdawa that he had placed Rampergass Singh in full and exclusive possession. The review of judg ment applied for was not granted, and the lapse of more than twelve years since the application was made does away with any argument that might be founded on the fact that the application was made. Certain petitions adverted to by the plaintiffs as having been given into Court when Mirza Ali's suit was pending, the lower Court held to be entirely valueless for the purpose of warding off the penalty, which attaches to default to sne within the prescribed legal period. The suit was dismissed, as barred by the limitation law.

The substance of the pleas in appeal are as follows. The Principal Sudder Ameen erred in allowing any opinion on the merits to accompany his order for dismission under the statute of limitations. In the judgment of the lower Court, two points have been insisted on, the bar by lapse of time, and the tender of the bazdawa; but neither of these, it is urged, is adverse to the claim. If the period is calculated from 1831 (the date of the decision of the Calcutta Sudder Court on the appeal of Sheomanogh Singh) the appellants are within the legal time for bringing

suit under Section 3, Regulation II. of 1805. The right of Hingun Singh, as opposed to the adoption of Rampergass Singh, was recognized by the Presidency Court, and Rampergass Singh having no where shown, since the date of the Sudder Court's judgment, that Hingun Singh had no rights, the possession by force of Rampergass Singh is clearly made out. So earnest was Hingun Singh in his endeavors to obtain kubooleeuts from the assamees, that the disputes which took place on that occasion eventually led to the imprisonment of Hingun Singh in the criminal Jail. When Mirza Ali applied to bring the property to sale, Hingun Singh objected that the property was his; he put forward the decree of the Sudder Court; he, in short, did all that it was possible for him to do in the way of proving his title. Further, it is laid down by Section 14, Regulation III. of 1793, and Section 8, Regulation VII. of 1795, that if a defendant admits the justness of a claim within twelve years from the date of suit, the claim may be heard, and since Rampergass Singh has admitted this claim, and it has been held to be a good claim by the Presidency Court, the finding of the Principal Sudder Ameen, that the suit falls under the limitation law, is clearly erroneous. Until the sale took place in 1837, Hingun Singh derived a share of the sayer produce, and twelve years have not elapsed since that time to the date of suit. The bazdawa should be placed out of sight altogether, as having nothing whatever to do with this case. The costs of suit, it is likewise argued in appeal, have been wrongly charged, because, though separate answers were filed by the defendants, they were to the same purport, and, under the rules in force, the fees receiveable by one vakeel only should have been sanctioned by the Court below.

In the opinion of the Court, the judgment of the Principal Sudder Ameen must be affirmed. It might indeed have been held by the lower Court not that the suit falls under the limitation law, but that, as it differs from the claim brought by the father of Bhan Purgass Narain Singh in 1827, only in respect to the extent of the interest sought to be recovered, that suit having been brought for possession of the whole puttee, and the present suit for possession of one-half of it, and as the suit in 1827 terminated in a bazdaua, or formal withdrawal of the claim, and as the subsequent application for a review of judgment was disallowed, there exists no legitimate ground of action whatever. The cause might have been regarded by the Principal Sudder Ameen as one which has been heard and determined, and, therefore, under Sections 12 and 16 of Regulation III. of 1793, not entertainable by a Civil

Court. But if it be assumed that any thing contained in the judg

*Under these circumstances, I hold that the third "share of the talooqua in dispute is divisible among "the heirs of Prem Narain. Now apparently those surviving, on the death of Net Koonwur, are the "appellant, (Sheomanogh Singh) and Hingun "Singh, father of the respondent, (Rampergass "Singh) who have equal interests. I propose "therefore to amend the decision of the lower "Court by awarding appellant one-half of the "claimed share; costs to be rateably paid by the "parties. Hingun Singh had also prosecuted his "son in regard to the same share, and his action "had been disposed of by the Court, as if retract"ed; but the Court had applied to review this "order. As it seemed therefore that no adjust"ment had taken place between the father and son, "Mr. Turnbull did not deem it necessary to make any provision as to the share to which Hingun "Singh seemed entitled. The case was next heard by Mr. Shakespear, who concurred in the propriety of the decree."

46

* Construction No 813.

ment* of the Presidency Court, dated 20th July 1831, (of which an extract is given in the margin,) taken in connection with the application for a review of judgment, has placed the plaintiffs in a position to revive the claim, which was formerly advanced by Hingun Singh and disposed of, the new suit should undoubtedly have been brought within twelve years

from the asserted cause of action. The application for a review of judgment was a proceeding in the miscellaneous department, and a miscellaneous* application does not operate to save the legal laches. This difficulty is necessarily in no way diminished by a reference to any of the other objections and petitions in the same department put in from time to time by Hingun Singh. If the fact of possession be looked to, it is abundantly clear that Rampergass Singh maintained uniform adverse possession, under an apparently just and honest title, from the date on which the bazdawa was filed by Hingun Singh up to the time when the property passed into the hands of the auction purchaser. On this point of possession, the pleas of the appellants are not consistent: they affirm that Hingun Singh was in possession of the sayer produce; that he thus enjoyed a possession, which the law recognizes as sufficient to bring the claim within the legal limit, and yet at the same time they point attention to the fact that the occupancy of Rampergass Singh was forcible, and that therefore the provisions of Section 3, Regulation II. of 1805 are citeable in support of their case. The Court do not find, with reference to the plea of the appellants, that the Principal Sudder Ameen has expressed an opinion on the merits in association with his order of dismission under legal bar, that that officer has entered any farther into the merits than was necessary to an exposition of his reasons for declaring the suit to be barred; neither do the Court admit the validity of the objection raised as to the costs. Separate replies were filed by parties who were

impleaded on the ground of their being inferior sharers under the auction purchaser, Thakoor Dutt Singh. They denied that they were sharers under him; they could not unite with him in a common defence, and they were needlessly impleaded; consequently, the plaintiffs became justly liable for the separate costs of these parties. The Court dismiss the appeal.

CASE NO. 111 OF 1851.

{

Special appeal from the decision of G. F. Harvey, Esq. Judge of Cawnpore, dated 22nd February 1851.

MUNNEERAM, Tewarree, (Defendant,) Appellant,

versus

SOBHA SINGH (Plaintiff), Respondent.

THE Volume of printed decisions for February 1851 contains the particulars of this case.

A special appeal was admitted to try, whether the order of the Judge, that each party pay his own costs, is not opposed to judicial usage, the Judge having, in appeal, reversed the decision under which the plaintiff had obtained a decree.

The Court are of opinion that although it is conformable to judicial usage to charge, in ordinary cases, costs to the losing party, a discretionary power is nevertheless vested in the Courts of deviating from that practice, whenever, for reasons assigned, they may see occasion to do so. Section 27, Regulation XXVII. of 1814 contains this injunction. "Such costs and expences shall be ultimately charged to the parties cast, or to the parties respectively, in such proportions as the Court may deem equitable." In the case with which the Court are now dealing, the Judge writes," and, moreover, although in strictness of law the plaintiff's claim cannot stand to recover the balance overpaid, yet in practice I think it equitable to divide the costs, as undue advantage appears to have been taken of the plaintiff, whose payment would in fairness have released a larger portion of the land than he at present holds, and thus payment as well as the land pass to the defendant." Without at all committing themselves to an approval of the Judge's reasons for compelling the appellant to bear a portion of the costs, the Court hold it to be enough, under the law above quoted, that the Judge has deemed it equitable to make such order, assigning certain rea

sons for it; consequently, his proceeding does not afford a ground of special appeal. The appeal is dismissed.

The 10th September, 1851.

Present:

CASE No. 191 of 1851.

A. W. BEGBIE, Judges,
H. W. DEANE,

S. S. BROWN, Offg. Judge.

Special appeal from the decision of C. Allen, Esq., Judge of Furruckabad, dated 28th August, 1850.

KOSHALIE AND OTHERS (Plaintiffs), Appellants,

versus

MUSSUMAT SIBNEE AND OTHERS, (Defendants), Respondents. THE particulars of this claim are given in the usual place in the volume of printed decisions.

A special appeal was granted to try, whether the Judge was right in declaring the widow, Mussumat Sibnee, competent to alienate the property left by her husband.

The Court find the Judge to rule the fact that in this case the property in dispute was ancestral, was separately possessed by the husband, and descended from him to his widow in separate possession. The Judge goes on to declare that the widow" has not a right to alienate property thus acquired to a stranger, but that she has a right to make it over to her son-in-law, who would be the next heir, if his wife, the daughter, lived."

With reference to this doctrine, the Court called for a byewusteh from the Hindoo Law Officer of the Sudder Court. The answer received from him is to this effect. "Ancestral property held separately by the husband, and so descending from him to his childless widow, may be alienated by the widow for worthy purposes, not for frivolous or immoral purposes."

Under this exposition, the power of alienation is general, unless the case can be brought under the reservations specified; and the Judge was right when he held that the widow might alienate to her son-in-law, and only wrong when he restricted the alienation to the son-in-law, and declared that the property could not lawfully pass to a stranger. The Court accordingly dismiss the appeal.