1. The facts out of which this appeal arises very fully appear from the judgments in the lower Courts. Both these Courts have taken the same view of the facts. The original defendant was one Ram Autar. He left his village on an outbreak of plague leaving his worldly goods with the plaintiff. The plaintiff is said to have misappropriated these goods and after Ram Autar's return ho instituted criminal proceedings for criminal breach of trust against the plaintiff. Neighbours intervened: it was found that the plaintiff was indebted to Ram Antar in Rs. 800 or thereabouts. The plaintiff executed hundis for part of the debt of Rs. 800 and sold a house for Rs. 100 (the balance of the debt).
2. The prosecution was dropped. This is the view taken by both the Courts below of the general facts. The present suit was instituted to recover possession of the house. it is necessary to refer particularly to the pleadings. The plaintiff pleaded that he was induced to execute the sale-deed by undue pressure of a false criminal charge brought against him by Ram Autar and that there was no consideration of any kind for the deed. It must be noted that the plaintiff never pleaded that the contract was void because it was made for the unlawful consideration of hushing up a crime.
3. The Court of first instance finding that there was no false charge or undue pressure and that the plaintiff was really indebted to Ram Autar to the amount of the sale price (Rs. 100) dismissed the suit. The learned District Judge in no way differs from the finding of the first Court on the general facts. He finds that there was no false charge, no coercion and that the plaintiff really owed the Rs. 100 (the consideration) to Ram Autar. He, however, infers from the fact that the prosecution was dropped that the consideration was the restoration of the value of the misappropriated goods on the one side and the dropping of the prosecution on the other. He says the transaction is on all fours with illustration (b) to Clause 23 of the Indian Contract Act. I think the learned Judge rather strained the facts in favour of the plaintiff. I have already pointed out that the plaintiff never pleaded Section 23 of the Indian Contract Act. Had he done so the finding of the Court would be binding or me.
4. The plaintiff made a very different case and pleaded facts which have been found by both Courts to be false. They were facts which if true would have entitled him to relief. It is, of course, probable that there was a sort of an understanding between the parties that the prosecution would be dropped but it was never before the Court to consider how far the dropping of the prosecution entered into the bargain. It may have been that the evidence would not have justified a conviction for fraudulent breach of trust. Whether the prosecution had gone on or not the plaintiff would have remained indebted to Ram Autar in Rs. 800 until the debt was discharged or satisfied. I think the defendant is entitled to rely on the 1st ground of appeal to this Court and that the lower appellate Court ought not to have decided the case on a plea not raised by the pleadings or in the grounds of appeal to the lower Court.
5. I allow the appeal and setting aside the decree of the lower appellate Court restore the decree of the Court of first instance with costs in all Courts.