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1855.

v. BABoo JANKEE Doss.

evidence, on the 23rd of November, 1850, the Judge of the Zillah Court pronounced a judgment which I Dwarka Doss must say entitles him to very great credit. He examines the case with the utmost care. He discusses the principles upon which the judgment is to be founded. He gives his opinion as to the weight to be attributed to each distinct portion of the evidence, and he comes to the conclusion, that in the absence of all evidence on the part of the Defendant (who produced no evidence whatever), there was sufficient to entitle the Plaintiff to the judgment which he claimed. And, accordingly, judgment was pronounced in his favour for the amount of the debt, with costs.

On the 30th of December, 1850, the Respondent presented a petition for a review of that judgment, and the first paragraph in the petition for review strongly confirms the view which their Lordships take of this case, namely, that the real question between the parties were these and these only; first, as to the accuracy of the two items complained of in the Plaintiff's account of Rs. 1,500 and Rs. 4,800; and, on the other hand, the set-off alleged on the part of the Defendant, the fact of the balance being turned in his favour, as he alleged, by various other accounts subsisting between the parties, and which ought to be taken into consideration when they were dealing with the Benares account. For in that petition for review he states, “ The following was substantially the reply which the Petitioner made to the above-named charge, namely, that according to the accounts, Petitioner has large sums to receive from Plaintiff on account of agencies in other Districts, and that the present suit cannot be brought against Petitioner.”

VOL. VI.

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1835.

V. BABOO JANKEE Doss.

That petition of review was refused, and on the Dwarka Doss 31st of December he presented a regular petition of

appeal.

The appeal came on for hearing on the 20th of April, 1852, and the Judges of the Sudder Court reversed the judgment of the Zillah Court, and they appear to have proceeded upon three grounds : First, that the accounts had not been satisfactorily made out. Secondly, that the award was not sufficiently proved, and it was in itself open to great suspicion. And, thirdly, that the evidence proving or affecting to prove the admissions of the Respondent was not worthy of credit.

On the last of these grounds their Lordships are not, as I have already intimated, disposed to differ from the Judges of the Sudder Court. But we feel ourselves unable to agree with them upon the other two grounds of their judgment. It is perfectly true that the regular proof of books and accounts, requires that the clerks who have kept those accounts, or some person competent to speak to the facts, should be called to prove that they have been regularly kept, and to prove their general accuracy. But the question is, whether having regard to the issue joined between these parties, and the facts which must be taken to have been impliedly admitted between them, and to what took place before the Inspector when those books were produced to him, whether, having regard to these circumstances, the necessity of that strict proof was not removed, and whether it is possible for the Court to hold that any doubt can exist as to the genuineness of those accounts, or as to the accuracy of those accounts, excepting in the par

1855.

BBco

.

Of course,

ticulars to which objections have been specifically made, and which objections had been distinctly, and Dwarka Doss in our opinion properly, overruled.

Now, their Lordships are of opinion, that what had JANKEE Doss. taken place was abundantly sufficient to remove the objection on the ground of the absence of that strict proof. It appears that witnesses, to afford that proof, had been tendered for examination, that a commission issued at Calcutta for the purpose, and that that commission had been returned without any evidence being taken under it. It is alleged that it happened by mistake. There is no proof of that. therefore, we do not at all found our judgment upon that. But having regard to the fact that the genuineness of those books was not disputed when they were offered to the Inspector, and that their accuracy was not disputed by the Respondent's agent, who attended to examine them, but that, on the contrary, their general accuracy was admitted ; that the accounts contained in those books had been for several months open to the inspection of the Respondent, with power to him to point out any inaccuracies, if any inaccuracies existed, and that he had in his own possession means at any moment of disproving the accuracy of those books (if inaccurate they were) by the production of his own accounts, books, and vouchers, their Lordships are of opinion that there was a primâ facie case for the establishment of those accounts, and that then the only question was, whether the particular items objected to had been made out by the Appellant, and whether the set-off alleged on the part of the Respondent had been established.

Now, with respect to the award, the Judges of the Suliler Court state, that it is open to great suspicion

1855.

V.

BABoo

on the ground that the award was not made for more DWARKA Doss than twelve months after the submission to arbitra

tion. Their Lordships cannot think that that is a JANKEE Doss. sufficient ground for doubting the fact of the award

having been made. Some determination must have been come to under the submission, which is not denied; and the fact of that award having been made is distinctly sworn to by the arbitrator who made it, and by another witness who was present upon the occasion of its being signed.

Upon the whole, therefore, their Lordships are of opinion, that the judgment of the Sudder Court must be reversed, that the judgment of the Zillah Court must be re-established, and that the costs of the proceedings in the Sudder Court must be paid by the Respondent to the Appellant; but that considering the great weight which is to be attributed to the judgment of the Sudder Court, and the doubt which unquestionably exists upon some parts of the case, it will not be fit to award any costs of the proceedings in this Court.

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On appeal from the Court of the Special Commissioner's

for the Districts of Calcutta and Moorshedabad. In this suit the Government of Bengal sought to

13th, 14th & establish their right to resume and assess with re

15th June,

1855. venue certain Ghatwally lands, containing 755 beghns,

By the

tenure of * Present: The Right Hon. T. Pemberton Leigh, the Right Ghatwally, Hon. the Lord Justice Knight Bruce, the Right Hon. Sir Edward the lands are Ryan, the Right Hon. the Lord Justice Turner, and the Right held under a Hon. Sir John Patteson.

grant from the ruling power,

by the performance of the defined duty of the Ghatwal guarding the Ghats or passes.

Upon the death of the Ghatwal last seised, the lands descend entire to a male heir, as Ghatwal.

Exposition of the principles which induced the Government to recognise the title of the Zemindars in Bengal, as landowners, and to make the Settlement with them for a permanent annual jumma.

Under the provisions of the Decennial Settlement of 1789, the Bengal Government, in 1790, assessed the whole of the Zemindary of Khuruckpore, including certain Ghatwally lands, at a fixed jumma. This Settlement was made perpetual in 1796, under Ben. Reg. I., of 1793, at the same fixed jumma. In 1838, the Government set up a claim to resume, for the purpose of revenue assessment, the Ghatwally lands in this Zemindary. Such claim dismissed, by reason,

First. That the Ghatwally lands were part of the Zemindary of Khuruckpore, and were included in the Permanent Settlement of the Zemindary, and covered by the jumma assessed on that Zemindary; and

Second. That lands of Ghatwally tenure were not liable to resumption under cl. 4, sec. 8, Ben. Reg. I., of 1793, as included in allowances made to Zemindars for Tannah, or police establishments.

In circumstances respecting the enforcement by Government of their claim to resume these lands, the Judicial Committee, in reversing the decree of the Special Commissioners, decreed all the costs incurred in the proceedings in India and in this Court, to be paid by the Bengal Government.

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