The Court are of opinion, that the decisions both of the Moonsiff and Principal Sudder Ameen are erroneous. It is true that the sale notice, in conformity to which the first sale was held, indicated for sale the right and interest of Asud Ali and Surufraz Khan in mouzah Beera, of which the jumma is Rs. 369. But the Court cannot regard this as anything more than a mistake on the part of the Collector, since, at that time, the real jumma of Beera was, by reason of the increase effected by the recovered land, Rs. 436, and it is not competent to a Collector, on bringing to sale the interest of a sharer, to sever off from the mouzah a tract of land, and to declare that the interest sold does not embrace the sale of any interest in the severed tract. Had no dispute existed between the plaintiff and defendant, and the plaintiff had purchased the rights of certain sharers in a mouzah of which the jumma might be found to have been, through accident, incorrectly set down in the sale papers, it could be no matter of question whatever, whether, in consequence of such mistake, the plaintiff had or had not bought the entire rights of those sharers. Upon these considerations, the Court annul the judgments of both the lower Courts, and pass a decree in the plaintiff's favor.

CASE No. 66 or 1850.

Judges,

H. W. DEANE, Offg. Judge.

Special appeal from the decision of J. P. Gubbins, Esq., Judge of Dehlie, dated 17th July, 1850.

COLLECTOR OF GOORGOAN, (Defendant), Appellant,

versus

MUNGNEE AND OTHERS, (Plaintiffs), Respondents.

For the particulars of this decision see pages 103 to 105 of the printed decision for zillah Dehlie for the past year.

A special appeal was admitted "to determine, 1st, whether "the Judge had not acted irregularly in adjudicating on a point "not set forth in the pleadings of the parties, such a proceeding being in contravention of the rule laid down in the Circular "Order No. 33 under date 13th September 1843; 2ndly, on the ground of the present decision of the Judge being inconsistent "with a former judgment passed by him in a similar case."

The Court are unanimous in opinion, that the Judge was not competent to pass a decree in favor of the plaintiffs on the ground

assigned by him, viz. that the Government had not delegated the power of confiscation to the Sudder Board of Revenue. The plaintiffs themselves do not urge this objection. They merely plead, that the confiscation was not made by the Collector in conformity with the rules in force in the Dehli territory, which they state to be, that the sanction of the Sudder Board, both prior to, and subsequent to, the act of confiscation, was essential, but which sanction had not been applied for or obtained by the Collector. The Principal Sudder Ameen very properly confined his judgment to this, the only point at issue, according to the pleadings of the parties, and having decided that the sanction of the Sudder Board had been obtained, dismissed the suit, and the Judge would have done well had he followed this course and not gone out of his way to find reason for objecting to the Collector's proceedings, which had not occurred to the parties themselves. It was the more necessary to adhere to the established rules of pleading in this case, when it is allowed by the Judge himself that in regard to the Dehlie territory, the regulations have not to this day been fully introduced there.

The Court annul the decision of the Judge, and remand the suit, in order that he may pass a fresh decision with reference to the foregoing observations. The suit being remanded on the first point specified in the certificate of special appeal, it is unnecessary to record any opinion on the second.

Present:

The 31st March, 1851.

CASE No. 67 of 1850.

Special appeal from the decision of J. P. Gubbins, Esq., Judge of Dehlie, dated 17th July, 1849.

SUNEE KHAN AND OTHERS, (Defendants), Appellants,

versus

MUNGNEE AND OTHERS, (Plaintiffs), Respondents.

THIS is a separate special appeal in the case No. 66, preferred by the new occupants of the village who were located by the Collector in the place of the plaintiffs. The grounds of appeal are precisely the same as in the preceding case, and for the reasons therein recorded, the decision of the Judge is annulled, and the case remanded.

Present:

The 31st March, 1851.

CASE No. 68 or 1850.

A. W. BEGBIE,

H. LUSHINGTON, Judges,
H. W. DEANE, Offg. Judge.

Special appeal from the decision of J. P. Gubbins, Esq., Judge of Dehlie, dated 20th July 1850.

THE COLLECTOR OF GOORGAON, (Defendant), Appellant,

versus

BHEEM SINGH AND OTHERS, (Plaintiffs), Respondents. THIS case will be found reported at page 106 of the printed decisions for zillah Dehlie for the past year. With the exception of the cause of action having arisen in a different village, the circumstances are precisely the same as those in the two cases, Nos. 66 and 67, this day decided, and for the reasons recorded in case No. 66, the decision of the Judge is annulled, and the case remanded.

KALKA PANDE AND OTHERS, (Plaintiffs), Appellants,

versus

MUSSUMAT ROOKMA AND OTHERS, (Defendants), Respondents. This case will be found reported at pages 222 to 224 of the printed decisions for zillah Goruckpore for the year 1849.

A special appeal was granted "to determine, whether the facts "found by the Judge are sufficient to establish a proprietary right in behalf of the appellants; and whether his decision is "consistent with previous decisions of this Court."

The above certificate was granted because the decision appealed from appeared to involve a question * Section 1, Act III. of 1843. of "law, usage or practice, upon "which there may be reasonable doubts."*

The Court are unanimously of opinion that no sufficient reason is shown by the appellants for interfering with the decision of the Judge. The main argument of the appellants is, that the present decision of the Judge is opposed to a decision of this Court in a parallel case, that of Bhyro Dutt Pandé and Mittur Dutt Pandé, appellants, versus Ram Lall Pandé and others, respondents, under date 9th August 1847, connected with this same village. But the Court cannot admit the justice of this statement. In the case of the 9th August 1847, the Court assumed the facts, as found by the Judge, which were held to be incompatible with dispossession of the plaintiffs from their zemindaree rights. In the present case, the Court must also take the facts as found by the Judge, who has recorded his opinion, that the only fact which the plaintiffs have established is their possession of seer land from 1834 to the year of the resumption of the maaffee tenure in 1842, and that the only privilege enjoyed by them in respect to other cultivators was a reduction of four annas in the village rates, and that they did not share in the julkur and bunkur proceeds. This is a very different finding from that in the case of 1847, in which the Judge ruled, that the plaintiffs had enjoyed not only seer lands, but also malikana, and had never paid rent as ryots. It does not follow, that because some of the claimants to the zemindaree right in the particular village have obtained a decree, that all persons preferring similar claims are entitled to decrees also. Each case must be determined on its own merits. It must be presumed, that the successful litigants were more successful than their neighbours in resisting the encroachments on their rights on the part of the defendants. All may have been originally in the same position, but all may not have been able to maintain that position. The narratives contained in the respective petitions of plaint may be identical, but if the zillah Judge draws, from the evidence adduced, inferences opposed to those adopted by his predecessor, this Court cannot interfere with his decision. To do so would be to treat this case as a regular instead of a special appeal.

The appeal is accordingly dismissed, with costs. But as it appears to the Court that the defendants have unnecessarily employed three vakeels and filed three distinct replies, apparently, with no other object than to harass their opponents, the Court will not charge the plaintiffs with the costs of more than one vakeel.

The 31st March, 1851.

Present: A. W. BEGBIE, Judge.

CASE No. 169 or 1851.

Special appeal from the decision of
Moulvee Mohumed Abdoor Ruhman
Khan, Officiating Principal Sudder
Ameen of Benares, dated 25th Sep-
tember 1850.

BABOO HURREE DASS, (Defendant), Appellant,

versus

ABDOOLLAH AND OTHERS, (Plaintiffs), Respondents.

THIS was a suit instituted in the Court of the Moonsiff of Juggutgunge, to enforce the opening of a road to a mosque, which the defendants, as purchasers of the bagh in which it was situated, had closed: the damages being laid at Rs. 119-9-6. The Moonsiff gave a decree in favor of the plaintiff, assessing the damages, however, at the amount of Rs. 9-9-6, with costs in proportion to the amount decreed and dismissed, but omitting to specify at the foot of the decree the amount of costs to be paid by the defendant. This decision was upheld on appeal by the officiating Principal Sudder Ameen.

A special appeal was admitted "to determine, whether the "decrees of the lower Courts are not faulty, inasmuch as the "memorandum at the foot of the decrees does not contain any "specification of the proportion of costs to be paid by the par"ties under the decree, as directed by paragraph 10 of the "Circular Order Sudder Dewanny Adawlut of the 12th Febru " ary 1847."

The Moonsiff and Principal Sudder Ameen are clearly chargeable with an oversight, in having omitted to specify at the foot of their decrees the amount of costs chargeable to each party, respectively, as required by the Circular Order referred to in the certificate: as the decrees now stand, the defendants might be called upon to pay the whole of the plaintiffs' costs, although the decree expressly declares that the defendant should be charged only with costs in proportion to the amount decreed. I remand the case to the Principal Sudder Ameen and Moonsiff, in order that the error now pointed out may be rectified.