NARAIN Vs. BASDEO

JUDGEMENT

(1.) This is a plaintiff's appeal arising oat of a suit brought by him in the Court of the Munsif, Muttra, in which the relief claimed by him was a declaration that he was entitled to the allotment of three jajmans which had fallen to the share of the defendant by the decree of a previous partition suit, for recovery of Rs. 200/-as the approximate profit which the defendant had derived during one year from those jajmans and for future damages at the rate of Rs. 200/- per year. The appeal raises an interesting point of law. The facts are simple.

(2.) Narain, plaintiff, appellant, Basdeo, defendant-respondent, and one Girraj are three brothers who are Chaubey by caste and are residents of Muttra. Their profession is Birt jajmani. In 1933 Narain and Basdeo brought a suit in the Court of the Civil Judge against Girraj for the partition of their share of the property. A preliminary decree for partition was passed on 22nd December 1942. An Amin was deputed to divide the property. Except the Birt jajmani lights he was able to divide the rest of the property. It appears that there was a keen contest among the brothers as to the allotment of the jajmans and the division of the bahis in which entries relating to them appeared. Several well-to-do persons of Benares and elsewhere were the jajmans of this family, Girraj offered to solve the problem about the division of the jajmans. He said that he would prepare three lots and would ask Naraiu and Basdeo to pick up first any two of them and agreed himself to take the remaining third lot. Each lot contained the names of the jajmans. Narain picked up lot No. 3, Basdeo picked up lot No. l and thus the remaining lot No. 2 went to Girraj. Everyone agreed to the allotment of the lots aforesaid and a final decree for partition was passed accordingly on 20th August 1943. By this decree the share of each of the three brothers was divided. Soon after this decree, Narain appellant brought the suit against Basdeo from which this appeal arises. His case was that there was an agreement prior to the final decree between him and Basdeo that he would pick up lot No. 3 and Basdeo would pick up lot No. 1, but after the decree the latter would deliver to him the pages of the bahi containing the entries of certain jajmans mentioned in Para 6 of the plaint. His contention was that the lots were unequal and by this arrangement they had agreed to make them equal.

(3.) The suit was contested by the defendant and inter alia he pleaded the bar of Section 92, Evidence Act and Section 11, Civil P. C. Learned Munsif took up these preliminary issues and held that the claim was barred by res judicata and that, having regard to Section 92, Evidence Act, it was not open to the plaintiff to set up a pre-decree oral agreement so as to vary the terms of the decree.