1. This second appeal arises out of a suit brought by the plaintiffs for recovery of the moveable and immoveable property of a deceased lady Deuli Manjhiani, widow of a certain Dular Goala, who died in Jail in the year 1867. After his death, the zemindars settled the property with his widows and made them ijaradars and mustagirs under them. The plaintiffs are the legal reversionary heirs of Dular Goala, and apart from the question of confiscation which has been raised in this appeal and from certain allegations of res judicata which we shall deal with presently, there is no possible reason why they should not succeed as reversioners of Dular Goala. But it is argued in this appeal that Rule 27, framed under Section 10 of the Sonthal Perganas Settlement Regulation III of 1872, applies to all persons resident and settled in the Sonthal Perganas and that under that rule the defendants are the preferential heirs to the plaintiffs.
2. Dealing first with the question of confiscation, we find that in neither of the Courts below was there any finding that the Courts had confiscated the property of Dular Goala on his conviction for dacoity during the Mutiny of 1857. On the contrary, the finding of the first Court which has been upheld in appeal in the lower Court clearly shows that daring the 10 years which Dular spent in Jail before his death he was recognized as the owner of the property. There is, therefore, nothing in this point.
3. Then as regards the question of res judicata, the finding of the Settlement Officer on the 28th June 1910 that Mohar had not the kinship to Dular, which he alleged, was clearly stated by the Settlement Officer himself to be unnecessary and to be outside the scope of the proceeding then before him, inasmuch as Mohar had no right to the estate of inheritance during the life-time of the widow, Deuli Manjhiani. He brought a suit to restrain the widow from waste, and as far as the waste was concerned, the suit was decreed in his favour. Twenty-one bighas odd was restored to the estate and the alienations improperly made to the defendants were cancelled. Now, if the Settlement Officer's finding that the plaintiffs had failed to prove their kinship to Dular had been given effect to, no such order could have been passed in that suit, for the plaintiffs would have been non-suited and the suit dismissed on the ground that they had no locus standi. The Settlement Officer's finding appears to have been not only not res judicata but to have been erroneous, and the Court of first instance in this case clearly found that the plaintiffs were the lawful heirs of Dular and the defendants had not ventured to appeal against this finding. There is, therefore, nothing in the second ground.
4. A regards the third point, we think that the learned District Judge has dealt with it in a very satisfactory manner. He has shown what the course of custom and the decision of the Courts has been in the Sonthal Perganas and no instance to the contrary to what he has held has been produced before us. It is perfectly clear that the law governing up-country Goalas who choose to settle in the Sonthal Perganas is their own Hindu Law. We presume that the Regulations of the Southal Perganas have never been sought to be imposed upon the very numerous Bengali gentlemen who have made their domicile within the Sonthal Perganas and there is no reason why the rule which applies to the Kaiyasthas and Brahmins of Bengal should not equally apply to the Goalas of the North-Western Provinces. The rule was clearly made to meet the peculiar custom of the Sonthals and the aborigines in that portion of the country and can have nothing to do with persons who are governed by the Hindu Law. Moreover, exceptions have been made even in the case of the Sonthals themselves and the Rule has always been applied with extreme discretion and has clearly never been held to be applicable to every case. It is also clear from Sections 10 and 11 of the Sonthal Perganas Regulations that the rule is only applicable to suits before Settlement Officers.
5. We, therefore, think that the third point in this appeal also fails and the appeal must be dismissed with costs.