the decision of the lower Court, and returns the case to the file of the Principal Sudder Ameen, that he may pass a fresh decree after disposing of all the pleas of the parties to the suit. The 11th March, 1851. CASE No. 50 or 1850. Regular appeal from the decision of J. O'B. SAUNDERS, (Defendant), Appellant, versus RAO KHOMAN SINGH, (Plaintiff), Respondent. THIS is an action brought to redeem the mortgage of mouzah Gumbheera, 19 villages, on the ground that the mortgage money, with legal interest, had been realized by the usufruct of the land. The Principal Sudder Ameen has dismissed the claim of the plaintiff, on the ground that the sum due to the mortgagee has not been realized; but, in coming to this conclusion, he has alluded to two separate principles upon which the calculation might be made, one of which shows a larger, and the other a smaller, balance against the mortgager. The object of the mortgagee, appellant, is to expunge from the decree all mention of the account, which shows the smaller balance in his favor. The Principal Sudder Ameen has not declared any fixed sum to be due from the mortgager. All he has declared is that, whether the account be made up on the one principle, or on the other, the mortgage has not been redeemed, The appeal is dismissed accordingly. CASE No. 61 of 1851. Special appeal from the decision of SHEIKH ZEEAOOLLAH, (Defendant), Appellant, versus SHEIKH HINGOO, (Plaintiff), Respondent. THE plaintiff sues to render absolute a conditional sale made to him by the defendants, Sheikh Zeeaoollah and Sheikh Madoo, (deceased) of a four-anna share in mouzah Goordhunnah, under date Bhadoon Budy 2nd, 1244 Fuslee. The defendant denies the execution of the bond, and, amongst other objections, he urges the plea, that Sheikh Madhoo at the date of the alleged execution of the deed of sale was a minor, and, therefore, had no power to alienate the property. The plea was urged in the juwab-davee and in the petition of appeal presented to the Principal Sudder Ameen, but neither of those Courts has disposed of it. The appellant now, again, in special appeal, urges, that the plea has not been adjudicated; and as this appears to be the case, the decisions of the lower Courts are annulled, and the case is remanded to the file of the Moonsiff, that he may pass a fresh decision, after disposing of all the pleas advanced by the parties. The 15th March, 1851. Present: A. W. BEGBIE, Judge. CASE No. 221 of 1850. { Special appeal from the decision of H. Lushington, Esq., Judge of Mooradabad, dated 2nd January 1849. BELASS RAI AND MUSSUMAT SAHIB KUOR, (Defendants), Appellants, versus KHUWANEE SINGH AND GHOSEE RAM, (Plaintiffs), Respondents. THIS case will be found reported at pages 2-6 of the printed decisions for zillah Mooradabad for the year 1849. A special appeal was admitted by a former Judge of this Court, "to determine whether the suit should not, in conformity with established precedents, have been remanded by the Judge to the Principal Sudder Ameen for decision on the merits." The precedents, agreeably to which this certificate was granted, are specified by the certifying Judge, viz. the cases of Sher Ali and others, appellants, versus Imam Ali and others, respondents, decided on the 27th March 1849, and Sheikh Zeeaoollah and others, appellants, versus Hyat Mohumed, respondent, decided on the 26th December 1849. But I find a third precedent of the same year, as the two above quoted, viz. the case of Himmochul Pandé and others, appellants, versus Madho Pandé and others, respondents, disposed of on the 1st March 1849, which shews that no general rule obtains for the remand of suits to be tried on the merits where the order of the lower Court, dismissing them under the law of limitation, has been overruled by the appellate Court. Whether a suit should be remanded or not, must depend on the circumstances of each case, and I am of opinion, that there is no necessity for remanding the present case, in which the right to possession is so intimately connected with the fact of possession, that the determination of the latter point necessarily involves that of the former. The Principal Sudder Ameen was of opinion, that the plaintiffs never had possession of the property claimed by them; and from the continued adverse possession of the defendants, he inferred, that the plaintiffs had no right to possession. The Judge, on the other hand, considered, that the fact of the plaintiffs' possession, within twelve years antecedent to the institution of their suit, was established. He says, (6 they (the punchayet) declare, unanimously, that plaintiffs had held possession of their zemindaree rights up to the end of the English settlement, and that they were dispossessed at the ninth." The Judge accepts this decision, which he declares to be "of more value than the evidence of any number of witnesses taken in the usual manner." Were this suit to be remanded to the Principal Sudder Ameen for retrial on the merits, it would be tantamount to dictating to him the revised judgment to be passed; for the Judge has determined both the right and the actual possession in favor of the plaintiffs. The Principal Sudder Ameen would have to unsay all that he had previously said, in opposition to his own judgment, a position quite incompatible with the independence of the judicial character. I am quite ready to admit that in many cases, wherein the suit has been held by the lower Court to be barred by the law of limitations, and that finding has been overruled by the appellate Court, it may be advisable, indeed absolutely necessary, to remand the suit for retrial on its merits, e. g., in cases wherein the Court of first instance has not allowed the deduction of the period during which a nonsuited case may have been pending or for minority; or when it may have overlooked the exception in favor of mortgagers and depositions, contained in Clause 4, Section 3, Regulation II. of 1805, and in similar instances, which will suggest themselves to experienced judicial officers, and therefore need not be enumerated. For the reasons above specified, I dismiss this appeal, with costs. Present: The 24th March, 1851. CASE No. 203 of 1850. A. W. BEGBIE, H. LUSHINGTON, Judges, H. W. DEANE, Offg. Judge. Special appeal from the decision of J. Lean, Esq., Offg. Judge of Mooradabad, dated 18th June 1850. BULDEO DASS AND OTHERS, (Plaintiffs), Appellants, versus HURKISSEN, (Defendant), Respondent. THE printed decisions for June 1850 give the particulars of this case. A special appeal was allowed to try, whether the Judge has not acted in opposition to judicial usage in dismissing the entire claim of the plaintiff, notwithstanding that one of the defendants (Hurkissen) partially admitted the justness of the claim. The Court are of opinion that the Judge has deviated from established judicial practice in refusing to pass a decree in favor of the plaintiffs for the sum which the defendant Hurkissen admitted to be due. They accordingly modify the judgment of the Zillah Court, and decree to the plaintiff the above amount, with costs in proportion. IKRAM ALI KHAN, (Defendant), Respondent. THE plaintiff sued in the lower Courts to set aside a sale under the following circumstances. At the settlement a boundary dispute existed between the zemindars of mouzah Beera and mouzah Nundwa, and a parcel of land, (225 beegahs) known under the name of mouzah Islampore, which had previously formed part of mouzah Beera, was severed from Beera, and incorporated with mouzah Nundwa. The zemindars of Beera sued in the Courts to get it re-attached to their village, obtained a decree in 1837, and duly executed it. A sum of Rs. 67, the estimated jumma on the land so adjudged, was taken off from the jumma of Nundwa, and added to that of Beera. By this increase, the jumma of Beera, formerly Rs. 369, became Rs. 436. Sometime afterwards, the right and interest, in Beera, of Asud Ali and Surufraz Khan, zemindars of that village, calculated at a five-anna share, were sold by public auction, at the instance of the present defendant, who held a decree against them, and were purchased by the present plaintiff. The same decreeholder, viz. the defendant Ikram Ali Khan, then brought about the sale of what he termed the rights of Asud Ali and Surufraz Khan in the recovered property, and purchased them himself. The object of the action is to set aside this second sale, the plaintiff contending that the entire rights of Asud Ali and Surufraz Khan, in the whole of mouzah Beera, without any reservation, on account of the tract of Islampore, were bought by himself at the first sale. The Moonsiff and the Principal Sudder Ameen recognized the validity of the second sale, and dismissed the plaintiff's claim. A special appeal was allowed, "to try whether the lower Courts were not in error in holding that the entire rights of Asud Ali and Surufraz Khan had not been previously disposed of at the public sale at which the plaintiff was purchaser. |