1878 THOMAS M. PIGOU v. MED ABOO Mr. Phillips, on behalf of Mr. Pigou, the surety in the first case and the judgment-debtor in the other two, objects to those sales, and says that they took place irregularly, because they were sales under all three decrees, whereas the order for sale was only in SYED MOHArespect of one decree, and he urges that they are a nullity; and, that if they are not a nullity, the whole transaction was fraudulent. Dealing with the last point first, it seems to me that there is not the slightest evidence of fraud. The plaintiff has come forward and made a most reckless allegation, charging an officer of Court and the defendants in this suit with fraud, but that allegation is entirely unsupported by any evidence. Then the question arises whether the sale is a nullity. It is objected by the respondent that the case cannot go on owing to the fact that similar proceedings have been already taken in another suit of an exactly similar character, and that the point raised now was decided then. The judgment in the former suit is printed at page 52 of the paper-book, and it is said there that "in this suit the plaintiff seeks for possession and for determination of his right to four bighas of land which was not sold, a two-storeyed house with appurtenances which were sold, two bighas of land which were not sold, and a bungalow which were sold in execution of decrees, all properties being in the city of Patua. The declaration further seeks for cancellation of the sale in question, which took place on the 13th June 1863," that is to say in pursuance of the order of the 10th of June 1863, to which I have already alluded. The properties with which that suit had to do include the properties involved in this suit. But it is said by Mr. Phillips that the two suits are not identical, because in the former suit the plaintiff sought to set aside the sales for irregularity, and on this occasion he sues to recover property on the ground that the sales were void ab initio. The question is not whether the two suits were in point of form the same, or whether the form of asking for relief was the same; but whether the same substantial question was adjudicated upon, and the same substantial relief was asked for. There has been a very recent decision of the Judicial Committee of the Privy Council on the subject, (res-judicata,) passed Judgment. BROUGH TON, J. 1878 THOMAS M. PIGOU บ. MED ABOO SYED. Judgment. in the year 1872-Wooma Tara Dabee vs. Unnopoorna Dasee, 2 Bengal L. R. A. C. 102, in the Original Court, and 11 B. L. R., 158, in the Privy Council. The facts in that case were, that the SYED MOHA plaintiff claimed the land in her first suit as taufir, but failing to recover in that suit she brought a fresh one for the recovery of the land as part of her talook. The Judicial Committee declined to allow her to do this, and referred to the principle which had been laid down by Lord WESTBURY in the case of Katama Natchiar (11 Moore's Indian Appeals, page 50). Their Lordships say: "In that case a party had brought a suit claiming under a will, having, as defendant in a former suit, abandoned his title under that will, admitting that the will did not amount to a devise, and resting his title upon the issue whether the estate was separate or undivided, and Lord WESTBURY said: That being the state of the case, we are now called upon to approve of a suit subsequently instituted by the very person who had deliberately given this character to the instrument-a suit founded upon an allegation wholly contradicting what he had stated to this Court of Justice, and insisting upon this paper as being a valid will and testament. It is impossible that any such suit should be allowed to proceed. In the first place it is clear upon the former record that the appellant had then the power of relying upon that document as being a valid will. He in effect stated, or might have stated, his defence in the suit of 1856 in the alternative. He might first have insisted that it was an undivided property, and that therefore the plaintiffs in those suits had no interest therein; and, secondly, he might have pleaded, but if it shall turn out to be a divided property, then my title arises under this instrument, and I plead and rely upon it as amounting to a valid devise in my favour. When a plaintiff claims an estate, and the defendant being in possession resists that claim, he is bound to resist it upon all the grounds that it is possible for him according to his knowledge then to bring forward." In the same way when a plaintiff makes a claim he is bound to bring forward everything which, according to his knowledge, he can bring forward. In the present case, the plaintiff originally sued to set aside these sales as irregular, and failing in that he brings the present 1878 THOMAS M. PIGOU ย. MED ABOO Judgment. suit on the ground that the sales are a nullity, because the order directing them was issued in the name of the Clerk of the Court instead of in that of the Judge. He says he did not ascertain that until the year 1871, that is, after the decision of the other SYED MOHAsuit. It is impossible to take that statement as true, because in these proceedings public notifications are given, and the record itself shows, and he himself states in his evidence, that he was constantly about the Court, and therefore must have known how these things were done; and the slightest diligence on his part would have enabled him to ascertain that these documents were signed by the Clerk as he says they were. He was bound to put forward his case in its fullest bearing, and also to exercise due diligence. It appears to me, therefore, that the decision of the Privy Council in the case of Wooma Tara Dabia vs. Unnopoorna Dassee, 11 Bengal Law Reports, page 158, and the principle laid down by Lord WESTBURY in the case in 11 Moore's Indian Appeals, page 50, are strictly applicable to this case; and that on the ground of res-judicata the plaintiff's suit must fail. I think, therefore, that this appeal ought to be dismissed with costs. BROUGH TON, J. VOL. III. 33 Jurisdiction-Civil Courts-Revenue Courts-Zemindar-Agent-Dewan Act X of 1859, section 24. In a district where Act X of 1859 is still in force, a suit against a dewan for the recovery of money alleged to have been misappropriated, and a large portion of which was received by the dewan not in the course of his employment, is cognizable by the Civil Courts. SPECIAL APPEAL from the decree of the Judge of the Assam Valley, affirming that of the Deputy Commissioner of Baboo Hem Chunder Banerjee, for Appellant. Baboo Aubinash Chunder Banerjee, for Respondent. The facts of the case are sufficiently set forth in the judgment of the Court (1) which was delivered by JACKSON, J. JACKSON, J.: The plaintiff, who is the Rajah of Bijni, a place in Assam, sued the defendant, who held the post of dewan in his service, to recover Rs. 4,714-5-1, misappropriated and spent improperly and unnecessarily on the strength of an illegal and fraudulent contract and in the particulars of the case it was stated that the plaintiff, on attaining the age of majority, took charge of his property and appointed the defendant to the post of dewan; that on arrival at Goalundo, he advanced from his own hands Rs. 1,000 to the defendant, and sent him to Goalpara; that after that the defendant, in the course of his employment, retained certain special officers already in employment, appointed others, who were his own relatives and defendants, on extravagant rates of pay, and made out a bill for their salaries for the time ending (1) JACKSON and TOTTENHAM, J.J. 1878 NARAIN v. PURNO CHUNDER ROY Judgment. in December 1874, under a false allegation of having engaged them; that he had unjustly debited the plaintiff with that and RAJA KUMUD other sums of money; that he had also ijarah pottahs to be written out, and finally had absconded, taking away with him Rs. 794-2-7, being the amount of the cash then in his hands. He further charges that, besides doing this, the defend- CHOWDHURY. ant obtained a sum of money intended, as I understand, for payment to the Oriental Bank, and appropriated it, together with the cash in hand, to himself, and by debiting a part of it to the JACKSON, J. salaries of himself and some other servants, and the remainder to the sum alleged to be due to him under a stipulation which he fraudulently inserted at the foot of the letter of appointment, setting out that in the event of his being dismissed he should get Rs. 500 for five years. The plaintiff, therefore, sued to recover all this money as per account. The first plea set up in defence by the naib was, that Act X of 1859 being still in force in Assam, and the defendant being in charge of the collections from the plaintiff's estate, he was liable to be sued under section 24 of that Act, and not otherwise. This plea appears to have been accepted by the Deputy Commissioner, who says: "I have gone over the account filed by the plaintiff, and find that the sums alleged to have been misused were received by the defendant as rents of the plaintiff's estate, he being at the time the plaintiff's duly constituted land agent, or dewan, and authorized to receive revenue collections of the plaintiff's estate. He says, the suit is brought for recovery of a portion of the money so received by the defendant, on the ground that the expenditure incurred by him under certain heads were wasteful, extravagant and improper. I do not think that the manner in which the defendant may have misappropriated the money can give this Court jurisdiction in a matter which, under section 24, Act X of 1859, is cognizable only by a Revenue Court." On appeal, the Judge of the Assam Valley Districts observes :"There is no doubt whatever that this is a case coming under section 24, Act X of 1859, which is still in force in Assam, and therefore not cognizable in the Civil Courts. The dewan is admitted by the appellant's pleader to have been employed |