BACHCHA RAM AND OTHERS Vs. PRITAM DASS

JUDGEMENT

(1.) This is a defendants' appeal and it arises in somewhat peculiar circumstances. The suit was filed by the plaintiff-respondent on the ground that defendant Ram Sewak had given loan to the plaintiff and in lieu of interest he had handed over certain Sirdari plots situate in village Lalpur, district Faizabad to Ram Sewak. During the consolidation operations Ram Sewak suggested to the plaintiff that since village Lalpur lay at a distance from his house if plaintiff was able to gave him less area situate in village Pausara, it would serve his purpose. Plots mentioned in list 'A', attached with the plaint, were never in possession of any of the defendants Nos. I and 2. Plaintiff had no dealings with defendant No. 2. Defendant No. 1 had already three Chaks in village Pausara. Legally, a person could no hold more than three chaks in a village. No objections were preferred by defendant No. 2 against the plaintiff in respect of these plots in village Pausara. Ultimately, it was agreed between plaintiff on one hand and defendants Nos. 1 and 2 on the other that if plaintiff allowed defendant No. 2 to be declared Sirdar of these plots in village Pausara and admitted him as such, defendant No. 1 would give up his right to claim on the basis of the pronotes and this amount would be deemed to have been paid off. It was, however, further agreed that so long as C. H. Form No. 25 was not distributed a pronote be executed in favour of defendant No. I and that pronote and receipt would remain in custody with defendant No. S. After C. H. Form No. 25 was issued in the name of defendant No. 2, the pronotes and receipts in question would be returned by defendant No. 3 to the plaintiff. This agreement was adhered to by the plaintiff. C. H. Form No. 25 was also distributed. Afterwards, when the plaintiff demanded his pronotes back from defendant No. 3, it transpired that all the three defendants were colluding inter-se and they were bent upon receiving money on the basis of the pronotes as well. On these grounds the suit was filed seeking declaration that it be declared that the pronote executed by plaintiff in favour of defendant No. I for Rs. 440.00 dated 4-5-1960 as well as pronote executed by plaintiff in favour of defendant No. 1 for Rs. 500.00 dated 17-6-1960 and another pronote executed by plaintiff in favour of defendant No. 1 for Rs. 150.00dated 5-1-1961 were paid off and nothing remained clue on the basis of those pronotes. Suit was contested. The trial court dismissed the suit. Plaintiff there-upon filed an appeal. The learned Civil and Sessions Judge allowed the appeal, set aside the judgment and decree of the trial court and decreed the suit of the plaintiff.

(2.) Feeling aggrieved, defendants Nos. 1 and 2 have come up in appeal to this Court. It may be noted that appellant No. 1 was dead and his heirs have been duly brought on record.

(3.) One of the points urged before me in appeal by the learned counsel, appearing for appellants, was that the relief claimed for should not have been allowed in as much as such a relief under Sec. 42 of the Specific Relief Act (Old Act) was not permissible. It appeans that this very point was also argued before the learned Civil and Sessions Judge but it did not find favour with him. This argument is full of substance.