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Shaik Ohid Bux and ors. Vs. Sheikh Dorshu and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal959,95Ind.Cas.144
AppellantShaik Ohid Bux and ors.
RespondentSheikh Dorshu and anr.
Excerpt:
fraud - contract, rescission of--contract, whether can be rescinded, in part. - .....of the third court of the same place. the defendant demised to the plaintiffs in this suit certain plots of land in consideration of a selami of rs. 400 and a payment of an annual rental of rs. 6-4-0. the lands are described as extending to 5 bighas of land as set, out in the schedule. the schedule sets out four plots with certain boundaries. plot no. 4 is described as having an area of 1 bigha. the plaintiffs contend that there is no such plot in existence and that it is merely, a fictitious plot and they accordingly commenced this suit for partial cancellation of the lease on this ground. both the courts decreed the suit and in the results the lease was varied by reducing the amount of rent.2. three points were urged before us on appeal, first, that the suit is not maintainable;.....
Judgment:

Greaves, J.

1. This is an appeal by the defendants against a decision of the Subordinate Judge of Burdwan, modifying a decision of the Munsif of the Third Court of the same place. The defendant demised to the plaintiffs in this suit certain plots of land in consideration of a selami of Rs. 400 and a payment of an annual rental of Rs. 6-4-0. The lands are described as extending to 5 bighas of land as set, out in the schedule. The schedule sets out four plots with certain boundaries. Plot No. 4 is described as having an area of 1 bigha. The plaintiffs contend that there is no such plot in existence and that it is merely, a fictitious plot and they accordingly commenced this suit for partial cancellation of the lease on this ground. Both the Courts decreed the suit and in the results the lease was varied by reducing the amount of rent.

2. Three points were urged before us on appeal, first, that the suit is not maintainable; secondly, that on the contract only 5 bighas were let out; thirdly, on the ground that the plaintiffs have been found in possession of more land than was leased out. It appears that there was a previous litigation between the parties. The plaintiffs in the present suit sought to get possession of certain land which, they allege represents plot No. 4. The defendants in the present suit resisted this and sued for declaration of their interest in and title to the land that was claimed as representing plot No. 4. It was found in that suit that the fraud which was alleged with regard to plot No. 4 was not proved. Accordingly, it is not open to the plaintiffs in this suit to allege any fraud on the part of the defendants with regard to the lease. But even if they could, in my opinion, the suit in this form could not lie. It is a well-recognised principle of the law of contract that if you seek on the ground of fraud to cancel or set aside the contract you must set aside the contract as a whole and not a part thereof, that is to say, the person who impeaches the contract must make up his mind to take it as it stands or repudiate it in toto. It is not open to the plaintiffs to take a middle course to accept a contract in part and to reject the other part and apart from fraud which is not open to the plaintiffs in this case it is impossible, to rectify or alter a contract even on the ground of mistake unless the mistake is a mutual one but that is not the case in the proceedings before us. The result is that we think that the whole suit is misconceived and that no such suit can lie.

3. In the result the appeal is allowed and the plaintiffs' suit dismissed with costs in all Courts.

4. It is not necessary in the view we take on the first point to consider the second and the third points that were urged by the appellants before us.

Panton, J.

5. I agree.


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