from that expected by the party who signed the blank deed, the Court can regard the transaction in no other light than that of a fraud: a fraud too approaching to the verge of forgery. Nor is the case improved by the nature of the oral evidence. Five witnesses on the one side swear that at the time of executing the deed of sale at Azimgurh 47 suttahs were delivered in their presence to the purchaser; and three witnesses on the other swear that only one receipt was made over on that occasion. It was a material point, for if the plaintiff received 47 blank suttahs when he made the purchase, he could not complain that he had been deceived. Such direct contradictions almost necessarily involving perjury on one side or the other, are unhappily common in this country; but the Court did not expect to find them in a suit in which both parties are Europeans holding a respectable position in society. The Court dismisses the appeal, and confirms the decision of the Court below. The 13th February, 1851. CASE NO. 43 OF 1850. Special appeal from the decision of GOSHEIN MADHO RAOJEE, (Plaintiff), Appellant, versus BETTHUL NATH AND OTHERS, (Defendants), Respondents. THIS case is reported at page 64 of the printed decisions for zillah Agra for the month of September last. A special appeal was admitted to determine "whether the bywustah, agreeable to which the Judge decided the case, was called for in the manner prescribed by judicial usage." On examining the proceedings, I find that the bywustah has been elicited in an unusual and objectionable manner. The order of the officiating Judge, calling for the bywustah, is to the following effect. "It being necessary and proper in this case to send for a bywustah from the Pundit of the Sudder Adawlut, therefore it is ordered that the hearing of the case be postponed this day, and that the record of the case be sent, with the demand for a bywustah, to the Pundit of the Sudder Court, who, after examining the proceedings, will, in the period of one week, forward his bywustah to this Court." This is not the mode in which legal opinions should be called for by the Civil Courts from the law Officers. Clause 1, Section 16, Regulation III. of 1803 provides, that the law Officers "shall attend to expound the law of their respective persuasions, in cases in which recourse may be required to be had to it," and Clause 2, Section 6, Regulation V. of 1831, declares that the Moonsiff's are to obtain an exposition of the law from the law Officers of the zillah Courts, to whom they are to transmit a written abstract of the case for this purpose." In the form of oath prescribed by Section 7, Regulation XI. of 1803 to be taken by Hindoo Law Officers, they are required to answer all questions that may be put to them, in writing, or orally, by the Court. It is the evident intention of the law as well as the established practice of the Courts, that specific questions on points of law only should be laid before the law Officers, and that the facts of the case should be found by the Court itself. But, under the general terms, in which the reference in the present case was made, the Pundit of the Sudder Court was constituted Judge of the facts as well as the law. In short, the Judge has expressed no opinion as to the facts, but has delegated the trial of the entire case to the Pundit, an extent of power and responsibility altogether uncontemplated and unauthorized by the law. The appellant has good reason for objecting to such a proceeding. I annul the decision of the officiating Judge, and remand the case for retrial with reference to the foregoing observations. The 13th February, 1851. CASE No. 42 OF 1851. Special appeal from the decision of MOULVEE NADIR ALI, (Defendant), Appellant, versus PULTOO AND DHAREE, (Plaintiffs), Respondents. THE plaintiffs sued to recover the value of the fruit of some kuthul trees, which had been gathered by the defendant without the consent of plaintiffs, on the plea of his being entitled to a share of the produce, as zemindar of the village. The defendant justified his act, and on this issue was joined. The Moonsiff, being of opinion that the defendants had established their plea of justification, dismissed the plaintiffs' claim. The Additional Principal Sudder Ameen reversed the Moonsiff's decision, and decreed in favor of plaintiffs, on the ground that the claim of the defendant to share in the produce of trees was not supported by any law or custom of the country. A special appeal was granted to determine "whether the Principal Sudder Ameen was justified in setting aside the report of the Ameen, deputed by the Moonsiff to make a local enquiry, without taking measures to test its accuracy. The decision of the Additional Principal Sudder Ameen is unsatisfactory. The Moonsiff, previously to deciding the case, very properly deputed an Ameen to the village to make enquiry relative to the usage alleged by the defendant to exist. The Ameen. reported that such a usage did exist, although the exact share to which the zemindar was entitled did not appear. The report of the Ameen was received by the Moonsiff as evidence, and it formed the groundwork of his decree, a mode of proceeding perfectly regular, and agreeable to the provisions of Section 18, Regulation III. of 1803. The Additional Principal Sudder Ameen was not at liberty to set aside the Ameen's report in the summary mode he has. He should have stated his reasons for discrediting the Ameen's report, and he was at liberty, if he thought proper, to call for a further report, or to take additional evidence. There may be no written law, or general custom, on the subject, as stated by the Additional Principal Sudder Ameen, but there may be a local usage, which has the force of law; and the Additional Principal Sudder Ameen was not competent to declare, ex cathedrá, in the face of the Ameen's report to the contrary, that there was no such usage in existence. Each pergunnah or village may have a peculiar usage which may be unknown to the administrators of the law, until the fact is proved by evidence. I accordingly annul the Additional Principal Sudder Ameen's decision, and remand the suit, in order that he may reconsider his judgment with advertence to the foregoing remarks. The 18th February, 1851. CASE No. 76 or 1849. Regular appeal from the decision of PURSOTUM POOREE, (Plaintiff), Appellant, versus GOSHEM HURKISHOON POOREE, (Defendant), Respondent. THE plaintiff sued to obtain possession of half of six muths, (Hindoo temples) valued at Rs. 25,500, and for Rs. 1,37,500, being half the value of silver and gold ornaments appertaining thereto. He represented himself as entitled to the share above specified as joint successor with the defendant to Raj Pooree, a former incumbent of the muths in question; but that defendant contrived to get entire possession of the muths during plaintiff's absence in Nepaul, whither he had gone for purposes of trade. The plaintiff further represented, that during his occasional residence at Benares, he was in the habit of residing with the defendant. The defendant in reply stated that the plaintiff never was a sharer in the muths, with his (plaintiff's) gooroo Mukhun Pooree, as asserted by him; that the said Mukhun Pooree died fifty-four years ago, leaving only one heir, viz: Duljeet Pooree, who executed a release for himself and his chela Jeet Pooree in favor of defendant; that the original incumbent Raj Pooree died twenty-eight years previous to the presentation of a petition by plaintiff in the Civil Court on the 19th April 1847, and that consequently his suit is barred by the law of limitations. The Principal Sudder Ameen dismissed plaintiff's claim, observing that the suit was barred by lapse of time, the person from whom he professed to inherit having died twenty-eight years ago, within which period plaintiff had not held possession; that the heirs of Mukhun Pooree had executed a release for their claims previously to plaintiff becoming a chela; that according to the established usage of this particular sect, when one chela has obtained his share of the inheritance, no other chela is entitled to any thing more; that defendant's witnesses prove that plaintiff was disqualified for the incumbency in consequence of his having a family; that he lived apart from defendant; and that the latter was the sole proprietor of the muths. I see no reason to interfere with the Principal Sudder Ameen's decision. The evidence adduced by the plaintiff is very unsatisfact ory, the testimony of several of his witnesses being opposed to the justice of his claim and favorable to the defendant; he has not produced a tittle of documentary evidence. On the other hand, the defendant has exhibited numerous decrees and other documents, which demonstrate that he has been uniformly recognized as the sole occupant and proprietor of the muths, and that too for a period far beyond the limit prescribed by law for the institution of adverse claims. The appeal is accordingly dismissed. The 19th February, 1851. CASE No. 46 or 1851. Special appeal from the decision of Moulvee Ahmud Hussun Khan, Principal Sudder Ameen of Mooradabad, dated 16th August 1850. IMDAD HOOSSEIN, (Defendant), Appellant, versus SYED GHOLAM ALI SHAH, (Plaintiff), Respondent. THE plaintiff claims certain building ground in the town of Amroha, resting the claim on a deed of sale, 7th Zeekat, 1224 Fuslee, and subsequent possession. The Moonsiff found that the plaintiff had not been in possession within twelve years, and he accordingly dismissed the suit under the law of limitation. In appeal, the Principal Sudder Ameen finds that the plaintiff has been in possession up to a late period, and conceiving this to be the only disputed point in the case, he did not think it necessary to remand the case to the file of the Moonsiff, but disposing of it himself, recorded a decree in favor of the plaintiff. A special appeal from the decision was admitted to try, whether, in thus disposing of the case himself instead of remanding it, he had acted in conformity with judicial usage. The Court is of opinion that the rule, which provides that the Appellate Court shall not decide on its merits a suit which has been dismissed on a special plea by the lower Court, has been infringed in the present case. The point of possession within the prescribed period has been determined in the plaintiff's favor, but the right is founded on the deed of sale, which is declared by the defendant to be false. How far the fact of possession supports the title deed is matter for the consideration of the Court, which tries the case on its merits, a proceeding which could not properly take place in the Court of the Principal Sudder Ameen. The Principal Sudder Ameen, who appears to have been perfectly well aware of the law, observes, that the Moonsiff does not deny the right of the plaintiff: such inferrible acquiescence on the part of the Moonsiff, who threw out the case on other grounds, does not amount to a judicial finding. The Court accordingly annuls the decision of the Principal Sudder Ameen, with the exception of that part of it which declares the claim to have been brought forward within the prescribed period, and remands the case to the file of the Moonsiff, that is may be tried on its merits. |