- (1.) Their Lordships having had very full opportunity of considering the facts in this case, and the arguments which have been addressed to them, are now prepared to dispose of it. The matter has been conveniently divided into three stages. The first litigation is that which commenced in the year 1836 with a suit by the present appellants, before the Assistant Collector. That appears to have been a suit instituted by them for the recovery of the villages in question. On that occasion, it appears that the defendants did not enter into any evidence, and, accordingly, upon the evidence which then existed, which was entirely on one side, in August 1838, a judgment was given by the Assistant Collector in favour of the present appellants.
(2.) That judgment was appealed against to the District Judge, who remanded the case for re-trial before the Principal Sudder Ameen. The trial proceeded, and, in the course of this, which was the first litigation in which the respondents entered into any evidence, the bond of the 24th February 1792 was put forward by the respondents in support of their case. By that bond, after mortgaging the share in the village for the sum of money which is there mentioned, it is stipulated that the money shall be paid with interest; and if the mortgagors do not pay it with interest within ten years, "the said villages shall become 'aghat,'--an absolute transfer in your favour." This bond was filed and deposited in Court on the 23rd January 1841, and it has ever since remained there. With reference to the argument as to the evidence in support of this bond, and particularly with respect to the custody of the bond, it is, in their Lordships' opinion, sufficient to state that the bond was produced in the usual manner by the persons who claimed title under the provisions of it, and who therefore were entitled to the possession of it; so that the bond must be held to have come from the proper custody. On the 14th July 1841 evidence was given in support of that bond. The witness, No. 11, states that" the bond was written "out by me. I do not remember by whose hands the signatures were made." He says, "I do not know whether I made them or caused to make them." The names of the persons who made the signatures are written in the said "signatures. I do not know who attested the writing."
(3.) That suit proceeded until the 14th December 1841, when it was dismissed on the application of the plaintiffs, and on that occasion the razinama, upon which so much discussion has since arisen, was recorded as the foundation of that dismissal. Whether the practice of the Indian Courts be exactly in accordance with the practice of our own Courts, by which a plaintiff may, up to a certain stage, dismiss his own suit upon obtaining an order for its dismissal with costs, it is unnecessary to inquire; because we think it is quite sufficient to say that, on the face of these proceedings, it is apparent that the razinama was entered upon the record as the ground for the withdrawal of the suit. At the same time, it is equally clear that it was stated expressly upon the record itself that the defendants' vakil represented that they were not aware of the razinama, but, as the plaintiffs' vakil admitted the razinama, the Court removed the suit from the file, and ordered that the plaintiffs should bear all the costs; in other words, the Court says the defendants do not in the least degree admit any of the statements contained in the razinama, for they state they were not at all aware of the razinama; but as the plaintiff admits that he desires to withdraw his suit, and to pay the costs, with that precautionary recital in favour of the defendants, the justice of the case was obviously met by allowing the plaintiffs to withdraw their suit, and ordering them to pay the costs of the suit thus withdrawn. But, at the same time, with reference to the questions of fact with which their Lordships have now to deal, it is very material to see what were the terms which, by this razinama, were alleged to have been entered into and agreed to by the parties. The razinama states, "the said case is pending in this Court, but we plaintiffs and defendants appointed arbitrators in regard to this case, and got the case decided by the arbitrators as follows: that the defendants should make over to the plaintiffs possession of the two villages of Waodi and Tugdi, in Pergunna Gogo; that the plaintiffs should pay to the defendants Rs. 7,150 of sicca currency; that until the payment of the said money, the defendants do enjoy, in lieu of interest, half of the income of the villages, after deducting the assessment, and the plaintiffs do enjoy the other half, and that the defendants being the descendants of Devaji Sutaji their shares in the villages be upheld." Therefore, that is in plain terms a statement of an agreement of preference to arbitration and a subsequent award, and that under that award the plaintiffs were to be put in possession of the whole; consequently, that the plaintiffs being in possession were to bear the burdens incident to that position; that is, they were to pay the assessment, and that then the defendants, in lieu of interest, should enjoy half of the income of the villages after deducting the assessment. It is material also to observe that the evidence in the case certainly does not come up to anything like the performance during any period of time of that agreement or award, so stated in the razinama; but by that razinama, and by the consequent dismissal of the suit, the first litigation is put an end to.;