On appeal from the Sudder Dewanny Adawlut of Bombay.
Bombay Regulation I of 1800 (Civil Court, Surat), Section 13, Scope of - Land and personal actions Included - Suit for share of lands, some which attached to the hereditary office of Desaye - Limitation. [Para ] The Bombay Regulation I, A.D. 1800, section 13, limiting the light of action to twelve yean, include suits on account of land as well as personal actions. Where therefore, a suit was instituted for the share of certain lands, some of which were attached to the hereditary office of Desaye, and no satisfactory proof was given that any demand had been made in respect thereof within that period, the right of action was held to be absolutely barred. On the 28th of April 1820, the appellants filed their plaint in the Zillah Court of Kaira, against the respondents and two other persons, as defendants, to recover a moiety of half-share of certain heritable property, consisting of the following particulars: First, the share of the produce of several villages in pergunna Thanna, attached to a certain hereditary revenue office under the Mahratta Government, called Desaye. Second, the income of land assigned by Government for the support of village officers, known as pussaita land.* Third, the village of Jhaleea in enam.# And fourth, a portion of the sayer duties or inland customs and taxes of the village of Ulleena. The entire income or inland customs and taxes of village of Ulleena. The entire income or yearly produce of the one-half share of the several descriptions of property mentioned in the plaint, was stated by the appellants to amount to the sum of rupees 1,130.2.*Lands of which the Government share of the revenue is assigned to district and village officers, and to Brahmins, or for the support of temples or colleges, and residences of religious persons, & c.
#Gift or grant from the Government.
The defendants (the respondents) were, at and prior to the time of filing the plaint, in exclusive possession of the entire estate. The district within which the property was situated became part of the British territories in India in 1817, previously to which it was under the Guicowar Government. The little set up by the appellants to the subject to the suit was, that the whole of the estate in question formerly belonged to one Koober-das, who held the office of Desaye, and was the common ancestor of the appellants and the respondents. By the genealogical table filed by the appellants, it appeared that Koober-das had three sone, Hujjewun, who died without issue, Bhookun-das, and Chuttoorbhooj-das: that the appellant Nundram claimed as the fifth, and the other appellants as the sixth in descent from Koober-das through Bhookun-das, and that the defendants were the third and fourth in descent through Chuttoorbhooj-das. At a very remote period, and prior to the year 1765, Bhookun-das, or his immediate descendants, quieted the place of their birth, and the district within which the office of Desaye was exercised, and settled at Surat. The respondents, by their answers to the plaint, and by their rejoinder, denied the right of the appellants to the share claimed by them in the property in dispute, and insisted that the ancestors of the parties, at a remote period, entered into an agreement in writing, which had been lost or destroyed, that the ancestors and family of the appellants should receive from those of the defendants, out of the revenues and income of the property, a fixed yearly sum of twenty rupees, and that this sum had been received and paid for a period of ninety years, and the respondents afterwards produced divers receipts in confirmation of this statement. The office of Desaye, to which the greater part of the property was attached, is an office under the Mahratta Government, requiring a performance of various public duties connected with the land revenue. Every sharer in the profits of the office is liable to be called upon to perform those duties. the ancestors of the appellants, by removing from Ulleena, and placing themselves in domicile at Surat, were beyond the reach of that liability, and avoided the fines and other expenses attending the preservation of the family estate during times of trouble and of change of government. Upon the trial in the Zillah Court, the respondents produced eight receipts, some of them appearing to be signed by ancestors of the appellants, and others by the appellant Nundram Dyaram, for sums received by the parties on account of the twenty rupees per annum, mentioned in the pleadings as the fixed annual payment to which the appellant's branch of the family of Koober-das was entitled. Two of these receipts, both dated Sumvut 1851 (A.D. 1795), were signed by the appellant witnesses, who were examined on the part of the respondents. These receipts recognise the sum of twenty rupees per annum as a fixed and regular payment. On the 20th of November 1821, the Zillah Court, considering that the appellants were early established to be joint descendants with the respondents, of Koober-das, and that the receipts and evidence adduced by the respondents were not entitled to credit, pronounced its decree in favour of the appellants, and ordered that the costs should be borne by the respondents. From this decree Dula-Bhaee Kurparam, and the other respondents, appealed to the Sudder Adawlut at Bombay. The ordinary pleadings upon appeal having been filed by the respective parties, the present appellants, who were respondents in the Sudder Adawlut, examined two additional witnesses, for the purpose of proving payments to them of two sums of money on account of their share of the general fees of the office of Desaye. On the 6th of July 1822, the Sudder Adawlut gave judgment in the appeal. The Court expressed its opinion to be, that at so remote a period it was too late to think of distrubing a possession, which neither the present appellants nor their ancestors, for at least three generations, had done anything to uphold; merely on account of the descent from a common ancestor; but that, as the revenue of the village of Jhaleea rested on somewhat different grounds, and that some of the pussaita land might also have come into the possession of the family by purchase, and thus far would be of the same description of property as the free lands of Jhaleea (that is, not held nor possessed in virtue of the office of Desaye): it was ordered, that the decree of the Zillah Court be reversed, and the suit of the present appellants dismissed, but without prejudice to any suit they might be induced to file for recovery of a share in the free lands of Jhaleea, or of any of the pussaita land which might have been purchased independent of the office of Desaye, or for the recovery of any other private rights inheritable by them under the Regulations: From this decree the present appellants (the original plaintiffs in the suit) appealed to His Majesty in Council, relying on the following reasons:-