ALI KHAN v. AKBAR ALI holding under such title by the defendants for a period which 1877 would exclude his co-sharers from advancing their claims; but as SHEIKH ASUD the case stands, it appears to me that the judgment of the Judge does not go so far as this. It is, therefore, necessary to remand SHEIKH the case to him in order that he may determine on the evidence, not merely whether there has been sole possession by the defendant, but whether such sole possession has been, either from the nature of the case or from some distinct acts of denial of the rights of the co-sharers, such as to create an adverse title by prescription in favour of the defendant, and to put an end to the original joint ownership. Baboo Aukhil Chunder Sen, for Appellant, contended that the judgment of the learned Judge was not law. Exclusive possession for more than twelve years being sufficient proof of adverse possession, if not rebutted. Baboo Pran Kisto Biswas, for Respondent. The judgment of the Court' was delivered by GARTH, C.J. (BIRCH, J., concurring) :— We think there is no ground for this appeal. It may be that when the case goes back to the Judge, he may find as he did before; but what Mr. Justice AINSLIE has pointed out is very true, that the Judge does not appear to have taken into consideration the possibility of the defendant's apparently exclusive possession being consistent with the fact of the joint ownership between the parties still subsisting. It often happens that, by arrangement between cosharers, a portion of the joint property remains for many years in the exclusive possession of one of them, and such possession is quite consistent with the continuance of the joint ownership. This is the case which the plaintiff seeks to establish here. What the Judge ought to ascertain is, whether the exclusive possession by the defendant was due to his title being really a separate one from the plaintiffs, and could not be accounted for by the fact of some arrangement having been come to at a previous time between the parties. The appeal is dismissed with costs. 1 GARTH, O.J., and BIRCH, J. Judgment. AINSLIE, J. GARTH, C.J. The right of a zemindar to exact from a tenant payment of rent for a certain piece of land, in no way depends on whether he does or does not pay revenue for that land. SPECIAL PECIAL APPEAL from a decision passed by the Judge of Midnapore, reversing a decree of the Sudder Moonsiff of that District. This was a suit for a declaration of mal right, the defendants claimed the land as lakhiraj. It was proved that, from 1815 to 1869, a peshkush or quit-rent had been paid to the zemindar, though the land had always been called lakhiraj; and that in 1841 a decree was passed in a resumption suit, instituted by the Government against the ancestor of the defendants, releasing the lands from liability for the payment of revenue. The Court of First Instance gave plaintiff a decree, which was set aside on appeal; the Judge holding that the zemindar's right to demand rent was based on his own liability to pay the Government revenue, and that the zemindar was not, of right, entitled to receive rent from the "grantees" of revenue-free lands. Plaintiff appealed. Baboo Srinath Das and Baboo Chunder Madhub Ghose, for Appellant. Moonshee Mahomed Yusuf, for Respondent. The judgment of the Court' was delivered by GARTH, C.J. GARTH, C.J.: We think that the District Judge has made a mistake in this case. He seems to think that because the zemindar pays no 1877 MOHUN TAGORE v. AYMUN OTHERS. Judgment. revenue to Government for this particular land, the defendant cannot legally be the zemindar's tenant or liable to pay him rent. JOTENDRO But the Moonsiff has found that, ever since the year 1815, the defendant and his ancestors have been paying rent to the zemindar down to the year 1869. We do not quite understand whether BEEbee and the Judge adopted that finding of the Moonsiff; but what he says is that, assuming it to be correct, the zemindar cannot, as a matter of law, be entitled to demand rent from the defendant, GARTH, C.J. because he pays no revenue for the land himself. We do not see the force of this, and we think the Judge has made a mistake. The case must go back to him for re-trial; and he must decide upon the whole of the evidence, whether the plaintiffs are entitled to recover. The appellant must have the costs of this appeal. MAHARANEE RAJ ROOP KOOER . . DECREE-HOLDER. Application for stay of execution of a decree, an appeal from which has been filed, should, under Act VIII of 1859, section 338, be made to the Court of Appeal and not to the Court which passed the order under appeal. REGULAR APPEAL from an order of the Subordinate Judge of Gya. This was an application made on the 30th June 1877, to the Subordinate Judge of Gya, for a stay of execution of a decree, from which the applicant had preferred an appeal to the High Court in the early part of the year 1876. The application was refused, and the applicant appealed. Baboo Nogendro Nath Roy, for Appellant. The judgment of the High Court' was delivered by On the face of the petition of appeal it appears that a regular appeal was filed in this Court in the year 1876. Consequently, under the terms of section 338 of the Civil Procedure Code, the application ought to have been made to this Court, and not to the Court below. The appeal must be dismissed with costs. Conditional Sale-Foreclosure-Service of Notice-Regulation XVII of 1806. In proceedings under Regulation XVII of 1806, section 8, the functions of the Judge are purely ministerial and not judicial. It is his duty to take certain proceedings as therein laid down and make a record of them; but he can give no judgment in any way binding on the parties, whose rights are regulated entirely by the Regulation itself. Forbes vs. Ameeroonissa Begum, 10 Moore's Ind. App., 340; 3 W. R., 47, P. C., cited and approved. The condition of foreclosure required by Regulation XVII of 1806, section 8, is that the mortgagor should be furnished with a copy of the petition, and should have a notification from the Judge, in order that he may, within a year from the time of such notice, redeem the property. In an action brought to recover possession as upon a foreclosure, it is essential for the plaintiff to satisfy the Court, by evidence, that the foregoing condition has been complied with. Syud Yusuf Ali Khan vs. Mussamut Azumtooissa, W. R., 1864, p. 49; and Madho Singh vs. Mahtab Singh, 3 Alla., 325, cited and approved. It is doubtful whether the finding of the Judge, recorded by him in the proceedings upon the foreclosure petition, would be even primâ facie evidence of the fact of service of notice. Proof of service of notice on the parties entitled may be waived by an admission by them that the notice was properly served upon them at the time at which the mortgagee alleges it to have been, or that they had knowledge of it at a time which would have justified the foreclosure. When the mortgagee seeks to foreclose he must discover and serve notice of foreclosure on the persons who are the then owners of the estate whether in possession or not. The purchaser of the equity of redemption, though not in possession, is therefore entitled to receive notice. Mohun Lall Sookul vs. Goluck Chunder Dutt, 10 Moore's Ind. App. 1; 1 W. R., 19, P. C., quoted. 1877 November 22. |