nothing to say that a decision, if in favor of Hardie, would not be consentaneous to the decision formerly passed in favor of the plaintiffs, as against Stonehouse, for this is no more than must take place whenever the same thing is contested under conflicting titles, by different parties in different suits. The judgments of the Courts are founded on the materials before them, and do not reach interests other than those of the parties before them. As there is no doubt that had Hardie held possession, not in virtue of an attachment, but of an alleged purchase from the proprietor, the Courts would have authority to determine which title by purchase was valid, that set up by the plaintiffs, or that set up by Hardie; so also it is open to them to try, whether a preferable title is conveyed by the attachment or the purchase. In the opinion of the Court, the right of the defendant, the representative of Hardie, to retain possession under the attachment, is wholly unimpregnable by any sale transaction, which can be pleaded as between the plaintiffs and Stonehouse. There was no registry of any deed of sale, the deed itself is not forthcoming, and is not shown ever to have had existence; the order for attachment was passed on the 6th December 1841, and it was not till after this order that an application was made to the Collector for transfer of names, on the 18th December, by Stonehouse; that application was made not, as is usual, by both parties, who desire the transfer, but by Stonehouse alone; and further, it is shown that though a suzawul took possession, by order of the Court directing the attachment, on the 11th January, it was not till May following, that the plaintiffs preferred objections to the attachment. It is true that, as noticed by the Principal Sudder Ameen, the sale to the plaintiffs was admitted by Hardie in a suit brought against him by Holroyd and admitted apparently for the purpose of repelling the claim of Holroyd; but this is not an admission, of which, when it stands alone, advantage can be taken by a plaintiff who utterly fails to establish his claim, to the satisfaction of the Court, by direct proof. In the present case, when the Court look to the proofs offered by the plaintiffs, they find them to be quite insufficient to warrant a decree in their favor. The Court reverse the judgment of the Principal Sudder Ameen, and dismiss the plaintiffs' claim. CASE No. 44 or 1850. A. W. BEGBIE, H. W. DEANE, } Judges, S. S. BROWN, Offg. Judge. Regular appeal from the decision of Moul- GOLAB RAE AND OTHERS, (Defendants), Appellants, versus NADIRA BEEBEE, MOHUMED TUKEE, SIRDAR KHAN AND OTHERS, (Plaintiffs), Respondents. THE suit is brought for possession of 200 beegahs of land, according to the boundaries specified in the plaint, and for the recovery of Rs. 4,400, wasilát, from 1244 to 1255 Fuslee: total estimate of suit Rs. 6,400. The plaintiffs are the proprietors of mouzah Banka, and the defendants are the zemindars of mouzah Rikowlee. The land, which is the subject of the suit, lies between three mouzahs, Banka, Rikowlee and Sehora. It appears from the history of the case, that this land, along with other land, has been contested by the three mouzahs, one with another, at different times, in the form of boundary disputes. The first dispute was between Sehora and Rikowlee, which was brought by Sehora, as plaintiffs, into the Civil Court in 1815; whilst this case was pending, Rikowlee and Banka settled amongst themselves, by arbitration in 1819, a claim, which had been advanced by Banka against Rikowlee for a portion of the land then in litigation between Rikowlee, and Sehora. In 1825, the Sehora people were successful in their long pending suit with Rikowlee, and obtained a decree, the execution of which necessarily brought them into collision with Banka, whose possession was maintained by an order of the Criminal Court. Sehora then brought an action in the Civil Court to set aside the order, and for recovery of possession of the land by virtue of the decree obtained by them in their snit with Rikowlee, and a decree was given in their favor, which was put in execution in 1835. In the following year, the decree, in the original suit between Schora and Rikowlee, was reversed in appeal, and the Sehora people withdrew from all further litigation. Execution of the decree, which had been passed by the appeal Court in their favor, was taken out by Rikowlee in 1837, and by the process they were put in possession of the area, inclusive of the portion which Sehora had recovered from Banka in 1835. The present suit has been brought by the proprietors of Banka to recover as much of this area as had been previously awarded to them in their dispute with the defendants in 1819, and they put forth the decree and its execution in 1837, as the means of their dispossession and cause of action. The defendants, amongst other reasons, urged the plea of limitation. The Principal Sudder Ameen overruled this plea. He observed that the events of this suit, between the defendants and Sehora, must be excluded from consideration, as they could not affect the rights of three persons not a party to the suit, and that two points in the case were clearly shown; 1st, that from the time of the award up to the year 1836 the land did not at any time revert to the possession of the defendants, and 2ndly, that by the decision of the Criminal Court the fact of the intermediate possession of the plaintiffs was proved: how or when their possession was lost was not clear, but as defendants' claim was based on the issue of their litigation with Sehora in 1836, the dispossession of the plaintiffs by the defendants must have taken place subsequently, and the suit, which had been brought within twelve years from the date of that decision, was consequently in time. The Court, under the view taken by them of the case, do not think it necessary to enter into the other reasons recorded by the Principal Sudder Ameen on the merits. There is not any new matter in the pleadings in appeal, with exception of an assertion of the respondents, who urge that the appellants have themselves raised a bar to their plea of limitation by an admission in the pleadings that the suit had been brought within the twelve years from the date of the decision in 1836. The Court do not consider that this meaning can be attached to the appellants' answer to the plaint. They first deny the plaintiffs' possession, and plead the limitation statute on several distinct grounds, and end by observing that the plaintiffs, who had lately acquired their right of suit by purchase of the mouzah, had come forward with it only two days within the twelve years from the decision of 1836: as a reason, it is equally weak and superfluous, but it is certainly no admission of what they had just before denied. The Court are of opinion that the decision of the lower Court, in regard to the limitation, is wrong. The Principal Sudder Ameen has overlooked the important fact of the possession of the land in dispute, which was intermediately acquired by Sehora under the execution of their decree against Banka. The date of this execution is fixed by respondents' acknowledgment in the pleadings in the year 1835, and there is no trace of any possession having been re-acquired by respondents between that year and the year 1837, when the appellants succeeded, by exe cution of their decree against Sehora, to the possession held by the latter over the entire area. The Principal Sudder Ameen appears to have been of opinion that the possession, which was lost by the respondents in 1835, was only lost relatively to Sehora, and that the adverse possession of the appellants would date from the decree of 1836, or from its execution in 1837; but in order to bring the suit within the limitation, it is not sufficient for the respondents to plead the date of possession of the opposite party. The point to be considered in the case is, not the possession of the appellants, but the dispossession of the respondents, and unless the respondents can show that they had themselves held possession of the land at some time within the twelve years from the date of their suit, they have no cause of action against the appellants or any other party. This they have failed to do, and the suit, which was brought on the 29th December 1848, is therefore beyond the limitation. The Court accordingly reverse the decision of the Principal Sudder Ameen, and dismiss the suit with costs. CASE No. 227 or 1851. } Judges, S. S. BROWN, Offg. Judge. Special appeal from the decision of Moul- GIRUND SINGH, (Defendant), Appellant, versus GHUNSAM SINGH, (Plaintiff), Respondent. THE suit is for possession and division of a two and half-biswahs share of mouzah Mirzapore Rehta, and for the malgoozaree rights in the same. The mouzah came under Settlement in the year 1835, and, in consequence of the recusance of some of the proprietors and the non-attendance of others, the Settlement was made with the defendant and another, who were also proprietors, to the exclusion of the other sharers. On the occasion of the completion of the record of rights under Section 3, Regulation IX. of 1833, several years afterwards, the malgoozars of the Settlement consented to admit the plaintiff to the malgoozaree and possession of his share, on condition of his satisfying his quota of an outstanding village debt. The present suit has been brought to enforce the fulfilment of this agreement, and a decree for possession and division has been given by the lower Courts, who at the same time declared their inability to decree the malgoozaree, and referred plaintiff for this part of his claim to the revenue Court. A special appeal was admitted to try; "1st, whether the lower Courts were competent to decree possession and division in this case, and 2nd, whether the plaintiff, not having first discharged his part of the agreement by the payment of the sum stipulated, was in a position to sue." It has been already ruled in the case of Mookut Singh, versus Urjoon Singh, No. 166, 9th September 1850, that the Civil Courts have no jurisdiction in claims for the alteration of the Settlement arrangements, which are consequent on the exercise of the malgoozaree right. Possession and division are rights appertaining to those who hold the malgoozaree, and cannot be decreed when the malgoozaree is held by others under engagements with the Government. It is not in this case, as when possession and division are decreed on establishment of proprietary right. The proprietary right here is not denied, but its exercise is in abeyance, pending the current Settlement, and the Settlement contract being between the malgoozars of that engagement and the Government, it is not in the power of the former, of their own accord, to re-admit, or, of the Courts, to decree the re-admission of a third party. In this case, the Courts allow their want of jurisdiction in regard to the malgoozaree right, but they very inconsistently decree other rights which necessarily follow on malgoozaree possession. Under this view of the case, the second point in the certificate need not be entered upon. The decision is reversed, and the suit dismissed, with costs. |