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Rabindra Nath Roy Choudhury and ors. Vs. Dhirendra Nath Roy Choudhury and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1940Cal82
AppellantRabindra Nath Roy Choudhury and ors.
RespondentDhirendra Nath Roy Choudhury and anr.
Cases Referred and Soudamini Dassi v. Behari Lal
Excerpt:
- .....the mourashi potta and the darpattani kabuliat in terms of the said compromise they instituted the present suit.2. various defences were taken by defendant 1 who contested the suit. it was contended in the first place that the compromise-petition could not be enforced piecemeal, and the various clauses being interdependent, a suit would not lie to enforce one of its terms only. it was said also that there was no consideration for the contract and; defendant 1 was induced by fraud and misrepresentation to enter into the compromise. lastly it was pleaded that the proper remedy of the plaintiff lay in an application for execution of the decree which was passed on the compromise and the present suit was barred under section 47, civil p.c. the trial court overruled all the defences and gave.....
Judgment:

B.K. Mukherjea, J.

1. This appeal is on behalf of the plaintiffs and it arises out of a suit commenced by them for specific performance of a contract embodied in a petition of compromise which was filed and, made the basis of the decree in T.S. No. 103 of 1931 of the Court of the First Sub-Judge at Alipore. The facts are not in controversy. Suresh, the father of the plaintiff and defendant 2, who is the father of defendant 1, are two brothers. There was an estate bearing Touzi No. 1300 of the 24 Parganas Collectorate which was purchased ostensibly by defendant 1 at a revenue sale. Upon that, Suit No. 103 of 1931 mentioned above was commenced in the Court of the First Sub-Judge at Alipur by Suresh as plaintiff, and his brother Rajendra and his son, the present defendant 1, were made parties defendants to that suit. The plaintiff Suresh sought for a declaration in that suit that the purchase in the name of defendant 1 was really for the benefit of himself and his brother Rajendra and he prayed for establishment of his title to the extent of eight annas share in the estate in. dispute. That suit culminated in a compromise and one of the terms of the compromise which was embodied in para. (4) of the petition filed in Court was as follows : Defendant 1 was declared to be the sixteen annas owner of Taluk No. 1300, which he purchased at the revenue sale but he was to grant a mourashi lease in respect of the eight annas share of the same to Suresh the father of the present plaintiff and Robindra, his eldest son who is plaintiff 1 in this suit, at an annual rental of Rs. 9. He was at the same time to take a darpattani of the same eight annas as share from the latter at a rental of Rs. 61 a year. Defendant 1 was therefore bound in the first place to execute a potta in favour of plaintiff 1 and his father, and, the latter had to execute a, darpattani lease in favour of defendant 1 for which he in his turn had to execute a kabuliat. Suresh subsequently died and the four plaintiffs are his sons and heirs at law, and as defendant 1 did not execute the mourashi potta and the darpattani kabuliat in terms of the said compromise they instituted the present suit.

2. Various defences were taken by defendant 1 who contested the suit. It was contended in the first place that the compromise-petition could not be enforced piecemeal, and the various clauses being interdependent, a suit would not lie to enforce one of its terms only. It was said also that there was no consideration for the contract and; defendant 1 was induced by fraud and misrepresentation to enter into the compromise. Lastly it was pleaded that the proper remedy of the plaintiff lay in an application for execution of the decree which was passed on the compromise and the present suit was barred under Section 47, Civil P.C. The trial Court overruled all the defences and gave the plaintiff a decree. On appeal the lower Appellate Court reversed the decision of the Munsif and dismissed the suit on the sole ground that the plaintiff's suit was barred under Section 47, Civil P.C. It is against this decree of dismissal that the present appeal has been preferred. The point for our determination is as to whether the compromise that is sought to be enforced was within the scope of Title Suit No. 103 of 1931 of the Court of the First Sub-Judge, Alipur, and hence came within the operative part of the decree that was passed therein. If this question is answered in the affirmative, it is not disputed that the remedy of the plaintiffs would be by way of execution of the decree, and not by instituting a suit for specific performance of that agreement. Now the suit undoubtedly was to establish the title of the father of the present plaintiff to a moiety share of the property in suit, on a declaration that defendant 1 was his benamidar to that extent.

3. The clause in the compromise petition which declared that defendant 1 was the full owner of the property by right of his purchase at a revenue sale,, undoubtedly related to the suit, and was in fact one of the issues directly involved in it. Mr. Chakravarti argues that the clauses coming after that, viz. that defendant 1 would execute a lease in respect of the same property in favour of plaintiff 1 or his father, was something totally extraneous to the suit and could not be brought within its scope. It is true that this matter was not covered by any of the issues in the suit, but if it was a consideration for matters in the suit, and constituted a necessary and integral part of the adjustment of the claim therein, it could very well be said to relate to the suit : Gobind Chandra v. Dwarka Nath (1908) 35 Cal. 837 and Soudamini Dassi v. Behari Lal (1921) 8 A.I.R. Cal. 227. To determine this point it is necessary to look at the facts as a whole. The compromise here did relate to the very property which was the subject-matter of the suit. The plaintiff acknowledged the full title of defendant 1 in respect of the said property, but the acknowledgment was conditional on defendant's executing a deed of lease in favour of the plaintiff in respect of the same. The (execution of the deed of lease was there fore the consideration for and a condition attached to the declaration of defendant's right. It became in my opinion an 'integral part of the adjustment of the claim' in suit) and as such came within its scope. I think therefore that the view taken by the Court of appeal below is the correct one, and the appeal must fail. Had this suit been instituted within three years from the date of the decree, the application could certainly have been treated as a suit under Section 47, but as this was not done, we have no other alternative but to dismiss the suit. The appeal is dismissed : no order as to costs.

Latifur Rahman, J.

4. I agree.


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