1. This is a second appeal by the defendants against a decree of a. lower appellate Court. The facts are that the plaintiff sued as zamindar of an entire mahal against the two defendants for certain acts of trespass alleged to have been committed by the defendants. The Court of first instance granted a relief in regard to para, (c) of the plaint only which was the removal of a brick-kiln from plot 322, area 2 bighas 9 biswas. The plaintiff filed an appeal, and that appeal was argued by the pleaders for the parties on 28th March 1928. The case was then adjourned to 30th March 1928 for judgment. On 30th March 1928 the pleaders for the parties appeared before the lower appellate Court accompanied by the plaintiff, and a statement was taken down by the Court at the dictation of the pleaders for the parties to the effect that the parties had come to terms and the terms were set forth. This statement was signed by the pleaders for each party, and by the plaintiff and by the lower appellate Court.- The lower appellate Court then proceeded to pass a decree in the terms of this compromise.
2. The proceedings of the lower appellate Court were taken under Order 23, Rule 3, Civil P.C. In second appeal various grounds have been taken to the effect that the defendants-appellants never intended to confer upon their pleader Pt. Mangali Parsad any authority to compromise the appeal, and that their vakalatnama had no such authority, and that he could not bind the defendants by a compromise which went beyond the subject-matter of the suit and the appeal. There is nothing on the record to sustain these allegations of the defendants. The defendants rely on an affidavit which they filed in certain proceedings by way of application for review of judgment, and that application was made on 10th April 1928. In the first place we are not sitting in appeal from the order refusing review of judgment; secondly, if we were sitting in appeal from that order, it is obvious that the mere affidavit of a defendant would not be sufficient material for us to come to a finding contrary to the finding of the lower appellate Court under Order 23, Rule 3 that this suit had been adjusted by a compromise between the parties. It was open to the defendants to examine Pt. Mangali Parsad to prove the contention of the defendants that they did not intend to confer authority on him to compromise or that they did not give him instructions that the suit had been compromised. In view of the fact that the defendants made no attempt to examine their vakil on this point, we consider that the mere affidavit of the defendants would be altogether insufficient to establish these allegations of fact. When a pleader, who is authorized by his vakalatnama to appeal for a party, does appear and makes a statement of fact on behalf of that party, the mere allegation of that party to the contrary is not material sufficient to contradict his pleader.
3. The next point which was argued was in regard to the authority which is contained in the vakalatnama of Pt. Mangali Parsad. This vakalatnama clearly states in Clause 2 that authority is given ' ya moqadma men tasfia karen.' It was argued that this only applies to original suits, but the word 'moqadma' is very much more general and should be translated by the word ' case ' and applies not only to an original suit but to an appeal. Further in Clause 2 of the vakalatnama it is also stated ' ya pairavi moqadma hi karen.' If the argument were correct, then the vakil would not have been authorized by his power of attorney to argue the appeal before the lower appellate Court. 'We consider that the vakalatnama clearly gives power to compromise cases to Pt. Mangali Parsad. Some reference was made to various rulings, but the circumstances of these rulings were entirely different and do not throw any light on the present case. As regards the allegation the compromise went beyond the subject-matter of the suit; it is founded on a statement in the terms of the compromise that the defendants should continue to pay Rs. 20 a year to the plaintiff for taking the produce of the trees. We do not consider that this matter travels beyond the subject-matter of the suit and in any case the compromise does not purport to be one which was made by the vakil but it purports to be one which was made by the party. Under these circumstances we consider that there is no force in this appeal and we dismiss it with costs.