1878 WOOMA v. that the zemindar had at any time acknowledged their tenancy. The fact that in April 1874 the Chatterjees, defendants, brought CHATTERJEE a suit against the zemindar to compel registration, does not show at what time their cause of action accrued by the refusal of the zemindar, and I remark that that suit was brought one year after the decree, which is under consideration in the present case, was passed. On these grounds, it appears to me to be clear that this tenure is liable to sale in satisfaction of the decree of the 8th of April 1873. KADAMBINI Judgment. PRINSEP, J. If it is necessary in the present case to express any opinion on the point of limitation which may possibly be raised in execution of this decree, I would state my opinion that the effect of the decree in the present suit would be, as has been recently held by me, sitting with Mr. Justice MARKBY, to revive the execution from the point at which the adverse order to the decreeholder was passed, that is, on the 13th of May 1876. The proceedings in execution, therefore, would not be barred under section 58 of the Rent Law, inasmuch as the property being under attachment, and at that time being at the point of being sold, it would not be necessary to issue any fresh process of execution. To complete the proceedings, it would only be necessary to issue a fresh notification of sale, and, therefore, execution could not be held to be barred. I, therefore, dismiss. the special appeal with costs. MCDONELL, J. MCDONELL, J.:— I concur in holding that this appeal must be dismissed with costs. It has not been shown to us that there was any error of law in the decision of the lower Appellate Court, and the points raised in special appeal have been fully answered by Mr. Justice PRINSER. Revenue Auction Sale-Arrears of Revenue-Sale-Purchaser-Auctionpurchaser-Cause of Action-Limitation-Res Judicata. Where, at an auction sale for arrears of revenue, a person purchases a permanently-settled zemindary, his cause of action, for possession of lands which he alleges to have formed a part of his permanentlysettled zemindary, and for which he still pays Government revenue, will be held to have arisen at the date of his purchase. Such a purchaser is not barred by adverse possession which has barred the former (defaulting) proprietor, nor by decrees in suits for possession brought by the former (defaulting) proprietor, in respect of the same lands, and against the same parties. Dewan Ramjiwan Singh vs. The Collector of Shahabad, 18 W. R., p. 64; The Collector of Moorshedabad vs. Roy Dhunput Singh Bahadoor, 23 W. R., 38, cited. REGULAR APPEAL from a decree passed by the Deputy Magistrate and Collector of Rajmehal, dismissing the plaintiff's suit. The suit was for possession of certain lands called Taruf Hosainpur alias Manick Chuck, which were alleged to form portion of a zemindary which was purchased by the plaintiff at an auction sale for arrears of revenue, on the 21st of May 1874. The plaint alleged that the zemindary was one which had been permanently settled in 1793, at a jumma of Rs. 1,477-2, which jumma plaintiff still continued to pay; that the Ganges then formed the south-western boundary of this zemindary, the lands in dispute forming a portion of the north-eastern bank of the river; that in 1848 the lands in dispute were measured as part of plaintiff's zemindary, though they were then under water in consequence of the river having gradually shifted its channel to the north-east; that in consequence of the continued shifting of the channel to the north-east, the lands in dispute re-formed on 1878 NARAIN CHUNDER CHOWDHRY v. TAYLOR. Judgment. the south-western in the year 1863, and the following years; and that the defendants then took possession of them. The It appeared that the former proprietor of the zemindary, Sheoba Nath Misser, instituted a suit against the present defendants in the Court of the Deputy Collector of Bhaugulpore for possession of these lands as forming part of the zemindary, but on the 28th of February 1866 that claim was dismissed. plaintiff in the present suit held that that decision was not binding on him, he being an auction-purchaser under Act XI of 1859, but the lower Court held that it was. The Court held also that the suit was barred under the 12 years rule of limitation. The fifth issue framed by the lower Court was: "The lands in dispute having been settled with defendant under section 6, Act IX of 1847, which settlement is declared to be a final proceeding, is not the plaintiff debarred from bringing this suit which is virtually a suit to set aside such settlement? The learned Judge says in his judgment: "With reference to the fifth issue this suit cannot be brought. Section 5, Act IX of 1847, states that when an estate diluviates, the revenue shall be remitted proportionately. It is not optional to the proprietor to continue to pay and to hold a lien on the diluviated land in case of its re-forming, as the plaintiff appears to think. The case of Dewan Ramjiwan Singh vs. Collector of Shahabad, 18 W. R., 64, lays this down most clearly, though the Act itself is so clear that a ruling is not necessary." The plaintiff appealed. Baboo Unnoda Prosad Banerjea, and Baboo Nullit Chunder Sen, for Appellants. Baboo Tarucknath Dutt, for Respondent. The judgment of the High Court (1) is as follows: This suit was brought for possession of Hosainpur alias Manick Chuck in Pergunnah Kakjole, in Towjee No. 518, and for wasilat from the date of suit laid at Rs. 23,000, the marketvalue of the property. (1) JACKSON and TOTTENHAM, J.J. Upon the written statement of the defendants it appears that 1878 b NARAIN CHUNDER v. a permanent settlement and assessment of rent in respect of the land in dispute had been made under the orders of the Board of CHOWDHRY Revenue, and it was insisted that such settlement was final, and not open to question in a civil suit. The ground of limitation was also set up. The Extra Assistant Commissioner, without going into the merits, threw out the plaintiff's suit, first, on the ground that the plaintiff was barred, inasmuch as twelve years had elapsed from the time of the accretion of the land, and the taking possession by the defendants; secondly, because three years limitation applied from the date of the survey Deputy Collector's award; and, lastly, because by Act IX of 1847, the Court was debarred from entertaining the suit. As to the first two grounds, it is clear that the plaintiff would not be barred, because he is an auction-purchaser of the estate, and, as such, is entitled to recover it free of all encumbrances; and his cause of action, by whatever period of limitation restricted, would arise from the time of his purchase, and the period of limitation is to be computed from that time; and it seems that the present suit is brought within three years from the date of the plaintiff's purchase. As regards the objection under Act IX of 1847, the Judge has quite misconceived, it seems to us, the case in 18 W. R., 64Dewan Ramjiwan Singh vs. Collector of Shahabad, to which reference has been made, and there is an express authority in 23 W. R., 38-case of The Collector of Moorshedabad vs. Roy Dhunput Singh Bahadoor, for holding that while, no doubt, the action taken by the Revenue authorities as to a settlement is final and cannot be questioned, that by no means debars a proprietor from bringing before a Civil Court his right to hold the property under any settlement that may be made. The judgment of the Court below, therefore, must be set aside as erroneous, and the case must go back in order to a trial on the merits. TAYLOR. Judgment. VOL. III 20 20 Estoppel-Legal Representative-Creditor-Debts of deceased-Party to Suit. If the sole legal representative of a deceased Hindoo knowingly permits a stranger to continue in possession of the deceased property as his widow, and suffers a creditor of the deceased to sue the woman and get a decree against her under the belief that she is the representative of the deceased, he will not, as against the decree-holder, be allowed to say, that the property of the deceased which had been in the stranger's possession is not liable to be taken in execution of the decree. Mir Ashruf Ali vs. Roy Lutchmiput Singh, 2 C. L. R., 223, cited. SPECIAL APPEAL from a decree passed by the Subordinate Judge of Moorshedabad affirming that of the Moonsiff of Baboo Gooroo Das Banerjee, for Appellant. The judgment of the High Court (1) was delivered by MARKEY, J. MARKBY, J. : In the year 1872, one Prankristo Chuckerbutty died, leaving no child or near relation. Prior to his death he had been living with one Briputy Bhushun Dey, as his wife, and at his death this woman managed the ceremonies of his funeral, no other relative having then come forward, and she continued to live in Prankristo's house and took possession of his property. About a year before his death, Prankristo had obtained a loan from the present plaintiff for a small amount. After Prankristo's death the plaintiff sued Briputy as representative of Pran (1) MARKBY and PRINSEP, J.J. · |