CASE No. 166 OF 1849. Regular appeal from the decision of MOHUMED HOOSSEIN AND AHMUD HOOSSEIN, (Defendants), Appellants, versus HURRUCK CHUND, (Plaintiff), Respondent. THIS claim is advanced for the recovery of certain balances of an amount formerly decreed to the plaintiff by the Benares Court. The plaintiff obtained a decree on deed of mortgage in the Court at Benares against Sadhoo Lall and Brij Ruttun Dass, and put it in execution. He represented that those defendants were possessed of property in the Azimgurh zillah, in the hands of lessees, and prayed that an order be issued compelling the lessees to execute an agreement, that they would pay to the plaintiff instead of Sadhoo Lall a sum of Rs. 600 per annum, which Sadhoo Lall had to receive from the lessees: an order was made accordingly in March 1837. The rights of Sadhoo Lall and Brij Ruttun Dass were afterwards sold, and bought by the ancestors of the present defendants. The lessees still maintained possession, and the plaintiff, it is said, still received his instalments from the property as before, but at length, after frequent disputes between the lessees and the auction purchasers, the latter succeeded in establishing themselves to the exclusion of the lessees. The plaintiff applied to the Court at Benares for an order to the auction purchasers to continue to pay the instalments, and obtained an order to that effect, which, however, was reversed in appeal by the Sudder Court, on the ground that the right course of proceeding would be a regular suit against the auction purchasers. A regular suit is now brought in the Benares Court. The main point raised in appeal, and the only one with which this Court has to deal, is, whether or not the plaintiff must be nonsuited, in consequence of his having preferred his claim in a Court not having jurisdiction to try it. The plaintiff conténds, indeed, that his cause of action is the order of 13th March 1837, by the Benares Court, issued to the lessees of the original defendants, Sadhoo Lall and Brij Ruttun Dass. But the Court think otherwise. The property, the proceeds of which it is sought to realize, is situated in the Azimgurh zillah, the defendants reside there, and the cause of action has been rightly stated by the appellants, as it appears to the Court, to be the refusal of the defendants to make good the instalments demanded of them. For the above reasons, the judgment of the Court below is annulled, and the plaintiff nonsuited. Present: CASES Nos. 186 AND 196 of 1850. The 31st March, 1851. A. W. BEGBIE, } Judges, H. LUSHINGTON, H. W. DEANE, Offg. Judge. Special appeal from the decision of Tusuddooq Hoossein Khan, Principal Sudder Ameen of Azimgurh, dated 21st May 1850. BIKKURMAHJEET SINGH AND OTHERS, (Defendants), Appellants, versus KOONJUN RAI, (Plaintiff), Respondent. AND GOORDIAL SINGH AND OTHERS, (Defendants,) Appellants, versus KOONJUN RAI, (Plaintiff), Respondent. i THE plaintiff sued to obtain possession, under a deed of sale, of mouzah Moongessur in zillah Azimghur. His claim was dismissed by the Court of first instance, the Court holding the deed to be forged. The Principal Sudder Ameen, in appeal, likewise regarded the deed to be not genuine, but, nevertheless, awarded to the Plaintiff, against certain of the defendants, a twelve-anna share in the mouzah. Two special appeals were preferred. In the case of Bikkurmahjeet Singh and others, a special appeal was allowed to try whether the Principal Sudder Ameen should have decreed a claim founded on a byenamah, which he admitted to be forged. In the case of Goordial Singh and others, a special appeal was granted to try, whether the Principal Sudder Ameen was competent to give the plaintiff a partial decree on the strength of a deed, which the Principal Sudder Ameen himself considered a forgery. 2ndly. Whether the Principal Sudder Ameen was justified in awarding, an application for transfer made to the Collector, in the 1848, indeed, of three of the defendants, but which in the pleadings in the suit is wholly denied by those defendants, as tantamount to a confession of judgment recorded in his own Court, in the absence of proof that the three defendants made such application. 3rdly. Whether, supposing the application aforesaid can be viewed in the light of a confession of judgment, it can be made to affect other persons than those in whose names it was given in. As respects the second and third points of the certificate, in the case of Goordial Singh and others, the Court are not disposed to hold that the Principal Sudder Ameen based his decision on what he considered a confession of judgment, though the-not-veryprecise terms in which the decree is drawn up are to some extent calculated to afford that impression. The Court find the Principal Sudder Ameen to declare that while the deed of sale produced before him must be rejected as not genuine, there is yet ample proof against some of the defendants, independently of the deed, of the alienation in his favor pleaded by the plaintiff. Against a declaration such as this every rule of right reasoning rebels. To hold the deed of sale to be a forgery is necessarily to pronounce against the fact of alienation. No accumulation of proof, therefore, of whatever kind, or from whatever source drawn, can show that to be a fact which has already been found to be not a fact. The judgment of the Principal Sudder Ameen is annulled, and the claim of the plaintiff is dismissed. CASE No. 39 of 1850. A. W. BEGBIE, Judges. Regular appeal from the decision of J. P. Gubbins, Esq., Judge of Dehlie, dated 3rd January 1850. AMEER BEG AND OTHERS, (Plaintiffs), Appellants, versus BEEBEE JUBBUN JAN alias MRS. Foy, (Defendant), Respondent. THIS case will be found reported at page 2 of the printed. decisions for Zillah Dehlie for the month of January 1850. As that decision does not contain a sufficiently full statement of the nature of the pleadings, it is necessary to supply the deficiency, in order that the grounds on which the Court's present decision is based may be made apparent. The plaintiffs assert that in the reign of Alumgeer 2nd, a person by name Abdool Kureem Khan erected a mosque in the neighbourhood of Dureagunge, that the same was for a long period used as a place of worship; that in 1814, Mr. Foy, the husband of the defendant, whose house adjoined the mosque, took forcible possession of the building, notwithstanding which prayers continued to be read there till 1824, by one Azeem, as mootuwalee; that in 1825, Mr. Foy took possession of the entire building, and, in 1827, surrounded it on all sides by a wall, and the reading of prayers was put a stop to; that the defendant can show no good title under which she holds possession of the mosque, her only plea being, that it was lawaris when taken possession of, and converted into a residence; that the mosque in question is wukf, and cannot be converted to any other use than that for which it, was erected, and that although defendant, and those from whom she derived possession, have been in the occupancy for more than twelve years, still, as the original acquisition was made by violent and unjust means, this suit, brought by plaintiffs on behalf of the Mussulman population, is cognizable under the provisions of Section 3, Regulation II. of 1805. The defendant replied that the statement of the plaintiffs, as to the violent and unjust acquisition of the building, was untrue; that Mr. Foy never had possession of it, nor had defendant herself any proprietary title to it, that the proprietor had made it over to her temporarily, but that she did not reside in it; that the real facts are as follows. That when the Government formed the Cantonment at Dureagunge, the ground and the mosque were assigned to Lieutenant Newton to build upon, who took possession accordingly, and erected several rooms and a kitchen; that in 1810, Lieutenant Newton sold the property to Mr. LeMaistre for Rs. 5,000, who, dying, was succeeded by his partner Mr. Benson, who, on his death, left it by will to Mr. Field, who sold it to Mr. Conductor Hauly, (defendant's first husband or protector), on the 8th November 1821, by whom additions were made to it, and the mosque itself converted into a kitchen; and that during the whole of this period, no religious worship had ever been conducted on the premises; that Mr. Hauly died about twenty-five years ago, and was succeeded by his son, who is at present in the Jullunder Doab; that on the death of Mr. Hauly, defendant was married (secondly) to Mr. Foy, but that neither her late husband or herself had any proprietary right in the property; that according to plaintiffs' own statement, their suit was barred by the law of limitation, the building having been for thirty-eight years disused as a place of worship. When the case was first heard by the Judge, he dismissed the claim, on the ground that, as the building was situated within Cantonments, it was not cognizable by the Civil Courts. On a summary appeal to this Court, this decision was annulled, and the Judge was directed to try the case, in the ordinary form, on its merits. The Judge accordingly proceeded, very properly, under the provisions of Section 3, Regulation II. of 1805, to call on the parties to produce their evidence, pro and con, as to the alleged violent and unjust acquisition of the property by the first tenant. The plaintiffs have failed to produce any evidence in support of their statement; they merely filed several decrees (including one of Her Majesty's Privy Council), with the object of showing that where violent possession can be proved, the lapse of twelve years is no bar to a suit, a position which of course is not denied, but these papers do not in any way establish the fact, that the possession of the defendant, or those whom she represents, was in this instance violent, fraudulent or unjust. On the other hand, the defendant has produced documentary evidence as well as oral, in support of her plea, viz., the title deeds for the property, and several witnesses, who depose to the fact of the building having for a very long period been used exclusively as a private residence. Such being the circumstances of this case, there can be no doubt that the Judge has now very properly dismissed the suit, as barred by the law of limitation. But the Court cannot avoid noticing the erroneous view taken by the Judge of the general question as to jurisdiction of the Civil Courts in Cantonments. This Court can by no means assent to the doctrine laid down by the Judge, that all land situate within a Military Cantonment |