The 30th January, 1851. Present: H. LUSHINGTON, Judge. CASE No. 32 OF 1851. Special appeal from the decision of Moul- OODEYRAJ, (Defendant), Appellant, versus JUMEYUT RAI AND OTHERS, (Plaintiffs), Respondents. THE papers in this case have not been drawn up with that attention to perspicuity which is essential to judicial proceedings, nor were the vakeels of the parties able to supply the defects of the record. The settlement map is not in the misl, but there are several others which differ so much that it is difficult to believe that they represent the same ground. However, it appears that the parties are the zemindars of the adjacent villages of Brijnathpore and Koralee, and that the suit has arisen out of a boundary dispute, Jumeyut Rai claiming the land as belonging to qusbeh Koralee, and Ooderaj claiming under the settlement. The disputed ground consists of two parcels, one called "Gondah" upon which several trees are growing, and another upon which a chubootra has been built. These were included at the settlement within the boundaries of Kusbatee Tolah, which plaintiff asserts to be a mohullah of qusbeh Koralee, but which has been settled with the defendant, whether as a separate mouzah, or as part of mouzah Brijnathpore does not clearly appear. The Moonsiff, considering the proof of the plaintiffs' right to be unsatisfactory, and observing that the settlement had been made with the defendant, dismissed the claim. The Principal Sudder Ameen, in appeal, finds, that the disputed parcels of land are in Kusbatee Tolah, which tract was settled with the defendant, and he proceeds to give a decree to the plaintiff, reserving the proprietary right in the land to the defendant. If the Principal Sudder Ameen by this intends to award to the plaintiff only the trees themselves and the chubootra itself, then it appears to the Court that the decree has given that which the plaintiff did not claim, and the special appeal was admitted upon this ground. From the nature of the two parcels, one being, as it is described, part of a ditch, and the other built upon, and both apparently in a town, it is very possible that the zemindaree right cannot be readily discriminated from those of the parties who had planted the trees, or laid down the chubootra. This would only render it the more necessary that decrees of Court in regard to such ground should be definite and distinct beyond the power of questioning. If this suit really be, as the Court, after perusing the plaint and hearing the vakeel, considers it to be a boundary dispute, the Principal Sudder Ameen could not award the ownership of trees and bricks to one party, whilst he left the zemindaree right with the other. Such a decree would be inconsistent with the plaint. The decree of the Court below is therefore annulled, and the case remanded to the file of the Principal Sudder Ameen, who will record a fresh decision. CASE No. 160 or 1850. Judges, H. W. DEANE, Offg. Judge. { Special appeal from the decision of J. S. Boldero, Esq., Judge of Agra, dated 30th April 1850. HEERA LALL, (Plaintiff), Appellant, versus RUTCHPAL, (Defendant), Respondent. A NOTICE of this case will be found in the printed decisions of the Zillah Courts for April 1850. The owner of certain landed property mortgaged it, under peculiar conditions, to the plaintiff in this suit, and subsequently sold it to the defendant. The plaintiff sued in the Sudder Ameen's Court to set aside the deed of sale, with reference to the express terms of his mortgage contract. The Sudder Ameen decreed in his favor. The Judge overruled the decision of the Court below, holding, so far as this Court comprehend the judgment which he has passed, that the case is not taken out of the ordinary rules relating to such transactions, and that the owner of the property might, as of course, first mortgage it, and then sell it while under mortgage. A special appeal was admitted to determine, whether the Judge has not erroneously overruled the decision of the Court of first instance, which had laid it down that the mortgager was not at liberty to alienate by sale the property mortgaged to the plaintiff, in direct violation of the terms of the contract of mortgage. The Court cannot uphold the Judge's decision. Under ordinary circumstances, the right of a proprietor to sell to one party property which he has previously mortgaged to another is not matter of question. But the Court find, on referring to the mortgage deed in this case, an express stipulation by the mortgager that during a period specified he will not sell it. He has sold it notwithstanding, and for this violation of the engagement entered into the plaintiff is entitled to call on the Courts for redress. The decision of the Judge is annulled, and the decree passed by the Sudder Ameen in the plaintiff's favor is affirmed. CASE No. 165 or 1850. A. W. BEGBIE, H. LUSHINGTON, } Judges, H. W. DEANE, Offg. Judge. Special appeal from the decision of GOMANEE LALL, (Plaintiff), Appellant, versus GOORDIAL AND SEETA RAM, (Defendants), Respondents. THE plaintiff instituted an action in the Court of the Sudder Ameen of Goruckpore for the purpose of bringing to sale a dwelling house, the property of Seeta Ram and others, and for reversal of a collusive decree which Goordial had obtained against Seeta Ram. It appears that the Moonsiff of Ghazeepore, on a money claim brought by Gomanee Lall against Seeta Ram, passed an order on the 3rd January 1849, directing that the defendant furnish the required legal security, or, in default thereof, that his property be attached. Upon this, Goordial brought an action for money against Seeta Ram, and, having obtained a decree, brought to sale in satisfaction of it a dwelling house in the Goruckpore district, the property of Seeta Ram. The prescribed legal security not having been given, the same house was attached on the 11th May 1849, in pursuance of the order passed by the Moonsiff of Ghazeepore in the suit in which Gomanee Lall was plaintiff. Gomanee Lall then brought the present action, with the object abovementioned. The Sudder Ameen passed a judgment in favor of the plaintiff. The Appellate Court, holding that the decree obtained by Goordial was not collusive, and that the house was liable to sale in satisfaction of the decree of Goordial, as not then under attachment, reversed the Sudder Ameen's decision. A special appeal was granted to try, whether the Principal Sudder Ameen has not acted in opposition to judicial usage in fixing, in the present case, the 11th May 1849 as the date on which the property of the defendants was attached under Regulation II of 1806, instead of the 3rd January 1849, which is the date of the order for attachment passed by the Ghazeepore Court. The Court hold that there is no irregularity in the Principal Sudder Ameen's proceedings. The disputed property was not actually under attachment till 11th May 1849, and any prior alienation of it was lawful. Section 5, Clause 2, Regulation II of 1806 is decisive on the point. The plaintiff's remedy lay in an action to set aside the decree, which, as he pleads, was fraudulently obtained by Goordial against Seeta Ram; that remedy has in the present instance been resorted to, and has failed. The appeal is therefore dismissed. Présent The 3rd February, 1851. CASE NO. 184 or 1850. A. W. BEGBIE, H. LUSHINGTON, Judges,.. Special appeal from the decision of MUSSUMAT JEETOO, (Defendant), Appellant, versus DOONGUR MULL AND OTHERS, (Plaintiffs), Respondents. THE plaintiffs in this suit formerly brought an action, in 1842, against the present defendant, for rent of a dwelling house, and they asserted on that occasion that rent had been paid to them for four, and was still due to them for seven years immediately preceding the institution of suit. Their claim was rejected by the Court on the 28th April 1843, as having no foundation whatever. The plaintiffs again brought suit in 1847, not, however, for the recovery of rent, but to establish a proprietary title to the house. The Court of first instance dismissed the claim, on the ground that the plaintiffs had been out of possession for more than twelve years. The Principal Sudder Ameen, in appeal, reversed that decision. A special appeal was allowed to try, whether the Principal Sudder Ameen has not erred in ruling that the suit of the plaintiffs. is not barred by lapse of time. The judgment of the Principal Sudder Ameen is manifestly wrong. He has misunderstood the purport of Section 18, Clause 3, Regulation II. of 1803. It was ruled by the Court in 1843, that for eleven years previously to that year, the plaintiffs had derived no rent from the house, and were possessed of no title to levy it. It cannot be that the plaintiffs should be found, under the |