1. This is a plaintiff's appeal arising out of a suit for possession of three quarters of a share in a zamindari. The plaintiff mortgaged the whole of the share to the present defendant's predecessor-in-title. The defendant by purchase at an auction-sale in pursuance of the decree of another person became the owner of three quarters of the share. He subsequently brought a suit for the sale of the remaining quarter for a proportionate amount of the mortgage-debt.
2. In 1917 there was a preliminary decree for sale of the quarter which was followed by negotiations between the plaintiff and the defendant for a settlement. These negotiations resulted in an agreement, according to the terms of which the mortgagor was to pay to the mortgagee the whole amount of the mortgage money plus the price which the mortgagee had paid at his auction purchase of three quarters of the share, and in return the plaintiff-mortgagor was to get back the whole of the share as soon as he bad paid the first instalment. For some unexplained reason but apparently by some body's inadvertence the compromise was not embodied in the final decree which was simply for the sale of a quarter. The present plaintiff, the mortgagor, took objections; but before his objections were finally disposed of in his favour partition proceedings had been instituted in 1922.
3. During this period of these partition proceedings it must be noted that the present plaintiff was endeavouring to get the decree amended so as to embody his compromise. He would naturally, there fore make some application to the partition officer in this respect. He could have applied to the partition officer, whether successfully or otherwise, to give effect to the compromise. He did not do so but applied to the partition officer to postpone proceedings pending the result of the efforts he was making in the civil Court. It would appear (but it may be that we have not all the facts) that this was a very reasonable application, but it was refused and a final partition decree was reached under which in the beginning of 1924 the three quarters share in dispute went to the present defendant, the quondam mortgagee.
4. On 2nd August 1924, that is about six months after the partition decree, the plaintiff was finally successful in getting the decree in the mortgage suit amended so as to embody the compromise and he now sues to get back the three quarters. Both Courts have thrown out the plaintiff's suit on the ground that Section 233(k) debars them from interfering or altering in any way the results embodied in a partition decree.
5. The plaintiff appeals. The rule in Section 233(k) obviously does not require support from judicial authority. It is manifest that there must be number of cases that can be quoted in which that Section has been applied. But it is equally clear that the rule cannot be applied in the sense that a distribution made by a partition decree can never at any time be disturbed whatever may have happened since the partition decree or, however, much new facts may have come into existence. It appears to me, therefore, that one should not blindly apply Section 233(k). If I were satisfied in this case that no new fact had come into being since the partition decree I should of Course unhesitatingly hold that the suit was barred by Section 233(k), but the facts of this case require careful examination. At the date when the partition proceedings were going on the plaintiff had at his back a certain compromise, and it is argued for the defendant that compromise was the basis of his title and that he could have and should have put that compromise to the partition officer, that if he did not do so it was his own fault and he must stand the consequences. The case as it may be stated for the plaintiff-appellant is:
Had I put the compromise to the partition officer he would quite rightly have said 'I am not prepared to act on this compromise for it is the subject of legal proceedings now proceeding and it may well be that the civil Court will refuse to recognize that compromise'. In other words, the plaintiff would undoubtedly have been told your alleged title is under a cloud at present' and the partition officer would have refused to assume that the final decree which did not embody the compromise was a wrong decree.
6. The very fact that there was in existence a final decree subsequent to the compromise which did not embody the compromise but decreed the relief as originally claimed would have justified any reasonable man in declining to pay any heed to the compromise in the situation in which it then was. The plaintiff could do no more than ask for a postponement to enable his title to be declared; and this he did. Subsequently to the partition decree which had ignored the compromise, the civil Court declared that the plaintiff was entitled to an amended decree on the basis of the compromise. A new right of the plaintiff was thereby declared by the Court. His title became clear. I may illustrate my view as follows: If after this partition decree the defendant had sold the three quarters share which had been allotted to him back to the plaintiff and having received the consideration money had refused to carry out the transfer, and the plaintiff had been compelled to sue, could the defendant have said:
I had this three quarters share allotted to me in the partition, you cannot disturb a partition decree, the most you can do is to sue me for the return of the money?
7. Manifestly not, and manifestly because a new fact affecting the title of the parties had come into being subsequent to the partition proceedings.
8. Here as it seems to me a new fact very materially affecting the title of the parties had come into being since the partition decree, namely, the declaration of a title in the plaintiff, while the facts existing prior to the partition decree would have suggested to any reasonable cautious person that in the existing state of facts the title was with the present defendant, the mortgagee. For the above reasons I think that Section 233(k) is no bar to the suit.
9. I was invited to consider the decisions referred by the lower Courts, and I in return invited counsel for the respondent to put the strongest of his cases. He referred me to Zorawar Singh v. Bhagwan Singh (1). But admittedly in that case there was no suggestion of any new fact having come into existence subsequent to the partition decree. I would utter a word of caution in reference to the view I have expressed. It is manifestly not any new fact coming into existence that will remove the bar contained in Section 233(k): I am concerned only with the present case; and where the new fact shifts the title, as in my view it does in this case, the alleged bar is not effective.
10. The result is that I allow this appeal and setting aside the decrees of the lower Courts, grant the plaintiff a decree in terms of his reliefs (a) and (c). He will have his costs throughout, None of the other reliefs is pressed.