Authored By : B.K. Mukherjea, Latifur Rahman

B.K. Mukherjea, J.

1. This appeal is on behalf of the plaintiffs and it arisesout of a suit commenced by them for specific performance of a contract embodiedin a petition of compromise which was filed and, made the basis of the decreein T.S. No. 103 of 1931 of the Court of the First Sub-Judge at Alipore. Thefacts are not in controversy. Suresh, the father of the plaintiff and defendant2, who is the father of defendant 1, are two brothers. There was an estatebearing Touzi No. 1300 of the 24 Parganas Collectorate which was purchasedostensibly by defendant 1 at a revenue sale. Upon that, Suit No. 103 of 1931mentioned above was commenced in the Court of the First Sub-Judge at Alipur bySuresh as plaintiff, and his brother Rajendra and his son, the presentdefendant 1, were made parties defendants to that suit. The plaintiff Sureshsought for a declaration in that suit that the purchase in the name ofdefendant 1 was really for the benefit of himself and his brother Rajendra andhe prayed for establishment of his title to the extent of eight annas share inthe estate in. dispute. That suit culminated in a compromise and one of theterms of the compromise which was embodied in para. (4) of the petition filedin Court was as follows : Defendant 1 was declared to be the sixteen annasowner of Taluk No. 1300, which he purchased at the revenue sale but he was togrant a mourashi lease in respect of the eight annas share of the same toSuresh the father of the present plaintiff and Robindra, his eldest son who isplaintiff 1 in this suit, at an annual rental of Rs. 9. He was at the same timeto take a darpattani of the same eight annas as share from the latter at arental of Rs. 61 a year. Defendant 1 was therefore bound in the first place toexecute a potta in favour of plaintiff 1 and his father, and, the latter had toexecute a, darpattani lease in favour of defendant 1 for which he in his turnhad to execute a kabuliyat. Suresh subsequently died and the four plaintiffsare his sons and heirs at law, and as defendant 1 did not execute the mourashipotta and the darpattani kabuliyat in terms of the said compromise theyinstituted the present suit.

2. Various defences were taken by defendant 1 who contestedthe suit. It was contended in the first place that the compromise-petitioncould 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 therewas no consideration for the contract and; defendant 1 was induced by fraud andmisrepresentation to enter into the compromise. Lastly it was pleaded that theproper remedy of the plaintiff lay in an application for execution of thedecree which was passed on the compromise and the present suit was barred underSection 47, Civil P.C. The trial Court overruled all the defences and gave theplaintiff a decree. On appeal the lower Appellate Court reversed the decisionof the Munsif and dismissed the suit on the sole ground that the plaintiffssuit was barred under Section 47, Civil P.C. It is against this decree ofdismissal that the present appeal has been preferred. The point for ourdetermination is as to whether the compromise that is sought to be enforced waswithin the scope of Title Suit No. 103 of 1931 of the Court of the FirstSub-Judge, Alipur, and hence came within the operative part of the decree thatwas passed therein. If this question is answered in the affirmative, it is notdisputed that the remedy of the plaintiffs would be by way of execution of thedecree, and not by instituting a suit for specific performance of thatagreement. Now the suit undoubtedly was to establish the title of the father ofthe present plaintiff to a moiety share of the property in suit, on adeclaration that defendant 1 was his benamidar to that extent.

3. The clause in the compromise petition which declared thatdefendant 1 was the full owner of the property by right of his purchase at arevenue sale,, undoubtedly related to the suit, and was in fact one of theissues directly involved in it. Mr. Chakravarti argues that the clauses comingafter that, viz. that defendant 1 would execute a lease in respect of the sameproperty in favour of plaintiff 1 or his father, was something totallyextraneous to the suit and could not be brought within its scope. It is truethat this matter was not covered by any of the issues in the suit, but if itwas a consideration for matters in the suit, and constituted a necessary and integralpart of the adjustment of the claim therein, it could very well be said torelate to the suit : Gobind Chandra v. Dwarka Nath (1908) 35 Cal. 837 andSoudamini Dassi v. Behari Lal 8 A.I.R. (1921) Cal. 227. To determine this pointit is necessary to look at the facts as a whole. The compromise here did relateto the very property which was the subject-matter of the suit. The plaintiffacknowledged the full title of defendant 1 in respect of the said property, butthe acknowledgment was conditional on defendants executing a deed of lease infavour of the plaintiff in respect of the same. The (execution of the deed oflease was there fore the consideration for and a condition attached to thedeclaration of defendants right. It became in my opinion an "integralpart of the adjustment of the claim" in suit) and as such came within itsscope. I think therefore that the view taken by the Court of appeal below isthe correct one, and the appeal must fail. Had this suit been instituted withinthree years from the date of the decree, the application could certainly havebeen treated as a suit under Section 47, but as this was not done, we have noother alternative but to dismiss the suit. The appeal is dismissed : no orderas to costs.

Latifur Rahman, J.

4. I agree.

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Rabindra Nath Roy Choudhury and Ors. vs. Dhirendra Nath RoyChoudhury and Ors. (19.05.1939 - CALHC)