made under a decree of Court of Surat; or, in the alter- 1859. native, if the sale could not be sustained, a further SUMBHOOLALL GIRDHURLALL question arose, whether the purchase-money paid by him into Court ought not to be refunded.

The principal points raised in the Court below and at issue in the appeal were, first, whether a Tora garas huk (a species of hereditary local tenure in Bombay) was subject to attachment and sale by the Sheriff, like other species of property, in execution of a decree of a Civil Court; secondly, whether the Government Collector, who received from the villagers and paid to the proprietors of the Tora garas periodically the money in respect thereof, was justified in refusing to register the name of the Appellant as purchaser and transferee, and to pay him the money received; and, thirdly, whether in the event of the first question being decided in the negative, and the second in the affirmative, the Appellant as purchaser at the Sheriff's sale of the Toras garas huk, had any claim for reimbursement against the Respondent, Nusserwanjee Pestonjee, the execution creditor, out of the nett proceeds of the sale paid to him by the Sheriff in satisfaction of the decree passed in his favour in a suit brought by him against the then Grassia.

The facts of the case were as follows:

The Respondent, Nusserwanjee Pestonjee, having in the year 1839, obtained a decree against one Bharmulsungjee Kooversungjee, in the Court of the

tion of military service, and commuted for a pecuniary payment out of the revenue paid by the villagers." A fixed payment made to military and predatory chiefs in Guzerat and Malwa, especially in lieu of lands held by them, or in purchase of their refraining from plunder.

v.

THE COLLECTOR OF SURAT.

1859.

v.

THE

COLLECTOR OF

SURAT.

Principal Sudder Ameen of Surat, for the sum of SUMBHOOLALL RS. 12,145, applied, pursuant to the provisions of GIRDHURLALL Reg. IV. of 1827, ch. xiv. of the Bombay Code of Procedure, sec. lxiii., clauses 1, 2, for the attachment and sale of certain Tora garas, of the Pergunnah of Orpad, amounting to Rs. 347. 13 a., which belonged to Bharmulsungjee Kooversungjee. An application was afterwards made to the Court by Bharmulsungiee Kooversungjee to stay the sale for six months, to enable him to make an arrangement to discharge the decree, but the Court declined to make any order. The property was accordingly attached, and proclamation having been made, without any adverse claim having been preferred, the Tora garas was sold by auction to the Appellant, for the sum of Rs. 3,430, which amount he paid into Court. The Judge of the Court thereupon executed the usual instrument of sale, dated the 23rd of January, 1840, assigning the Tora garas to the Appellant, and the Nazir of the Court paid over the purchase-money to the Respondent, Nusserwanjee Pestonjee, in accordance with the ordinary practice.

The Collector of Surat being in receipt of the revenue of the Pergunnah of Orpad, out of which the Tora garas was payable, the Appellant to complete his purchase and enable him to receive the Tora garas, applied to him to order the Mamlutdar to enter the Appellant's name as the owner of the Tora garas, and to pay the same to him yearly. Upon this, an order was issued by the Collector as requested; but the Mamlutdar having made a report to the Collector that the Tora garas ought not to have been taken from Bharmulsungjee, the Appellant's

1859.

name was not entered as owner, nor was the Tora garas paid over to him, the amount being paid into SUMBHOOLALL the Government treasury.

GIRDHURLALL

v.

COLLECTOR OF

SURAT.

The Appellant, on the 22nd of July, 1840, pre- THE sented a petition to the Judge of the Zillah Court of Surat, for redress, upon which the Judge ordered a communication to be addressed to the Collector to enter the Appellant's name as the owner thereof, and to pay the same to him accordingly. The Collector, however, reported to the Revenue Commissioners that the Appellant's purchase-money should be refunded to him, with interest, out of the public treasury, and that the Tora garas should be appropriated to Government, or that the Appellant's name should be entered as the owner of it. The Appellant then applied to the Revenue Commissioners, when he was informed, in reply, that a reference had been made. to Government on the subject, and that an answer would be communicated on receipt of the final orders of Government. The Appellant having been at last informed by the Collector of Surat that his remedy was to file a suit to substantiate his claim, appealed to the Sudder Dewanny Adawlut of Bombay for redress; but on the 28th of February, 1843, that Court likewise left it to the Appellant to file a suit on the civil side of the Court to establish his right.

Accordingly, on the 16th of October, 1843, the Appellant filed a plaint in the Zillah Court of Surat, against the Respondents, insisting that Tora garas had been repeatedly sold, and that the purchasers were in the enjoyment of the produce thereof, and praying that the Collector might be ordered to enter the Tora garas purchased by the Appellant, amounting to the yearly sum of Rs. 347. 13 a., in his

1859.

V.

COLLECTOR OF

CASES IN THE PRIVY COUNCIL

name, according to the Bill of sale, and to pay him SUMBHOOLALL the arrears accrued for the preceding four years, GIRDHURLALL amounting to Rs. 1,391. 4 a., or, that if it should THE appear to the Court, that the Respondent, NusserSURAT. wunjee Pestonjee, caused the Tora garas to be improperly sold, then that he might be ordered to refund to the Appellant the sum of Rs. 4,821. 4 a., being the amount of the purchase-money and interest for four years.

The Collector of Surat by his answer alleged, that from the origin of Tora garas, the Grassia people used to levy certain Huks and necessaries from the cultivators, in order that they should not oppress the villagers by plundering, &c.: and that it was the pleasure of the cultivators whether they paid the same or not; that they did not receive that Huk by means of an order on the part of Government, or by means of any sunnuds. That after the English Government took the country, an agreement was entered into that the Grassias were to receive the Huk from the Government treasury and not from the villagers, in order that the villagers should not suffer any oppression; and that the custom had hitherto been to pay the Huk to the Grassias alone. That the Government had not agreed to pay the Huk to any one else, for, by so doing, the agreement made by the Government would be broken; because, if the Grassias got nothing to eat, they would again begin to plunder; that the Government would then suffer loss, and the villagers would suffer oppression. That the Government had settled the personal property of the Grassias, and, if that property did not reach them, the claim of the Government to the same existed; that, even if Tora garas had been sold as alleged in the plaint, the right

1859.

SUMBHOOLALL

ย.

SURAT.

of the Government was not done away with, because it was agreed to pay the Huk to the Grassias alone. The Respondent, Nusserwanjee Pestonjee, by his GIRDHURLALL answer admitted the material facts stated in the THE COLLECTOR OF plaint, and submitted that he was improperly made a party to the suit, and that it was contrary to the Regulations to sue him; for as the Appellant had admitted that the Tora garas was regularly sold, he should have sued the Collector alone to recover the amount of it which had been paid into the Government treasury.

The Appellant replied to both answers, stating that if any objections to the sale had appeared to the Collector, he should have filed a suit as soon as the property was attached, and have caused the sale to be stayed according to the provisions of the Regulations; and that not having done so, the objection that the Tora garas was not saleable ought not now to be entertained; and, in answer to the objection of the Respondent, Nusserwanjee Pestonjee, stated that so long as the Appellant's name was not entered in the books of the Collector, the Appellant's claim against the Respondent, Nusserwanjee Pestonjee, was valid, as he had caused the Tora garas to be sold, and had received the purchase-money, and that when judicial sales were avoided, the Court always directed the purchase-money to be refunded to the purchaser, whereupon the decree, for the satisfaction of which the property was sold, remained in force.

Evidence was adduced on behalf of the Appellant, which established that judicial sales had been made of other Tora garas in the Pergunnah of Orpad, one of which had been enforced in a suit in the civil Court of Surat, and that other sales had been recognised