KARTIK CHANDRA BERA Vs. BHUSAN CHANDRA GURIA

JUDGEMENT

(1.) This Rule was issued at the instance of the plaintiff in Title Suit No. 357 of 1967 in the Court of 1st Mun-sif, Tamluk against the order No. 47 dated Sep. 21, 1973, whereby the suit was dismissed after contest in terms of Sole-nama which was made a part of the decree. The relevant facts are as follows : The plaintiff filed the above Title Suit for declaration of title and recovery of possession of the suit property on eviction therefrom of the defendant the opposite party No. 1 and the State of West Bengal. It was stated that the opposite party No. 1 was allowed to live in the suit property as the licensee and as he failed to vacate on demand the suit was instituted for recovery of possession on declaration of title. The opposite party No. 1 filed a written statement stating that he was a tenant under the plaintiff's father since 1347 B. S. and his right was also perfected by adverse possession and his name was duly entered in the record of rights as a raiyat under the State. A written statement was also filed on behalf of the State of West Bengal stating that the opposite party No. 1 was a tenant under the State. The suit became ready for hearing on April 16, 1969 when both the parties namely the petitioner and the opposite party No. 1 submitted that they would file a petition of compromise. Thereafter on April 17, 1969 both parties filed a petition of compromise. The terms of Solenama in English rendering are as follows :-- "1. We the plaintiff and the defendant No. 1 on the advice of our well-wishers and considering all circumstances have decided to settle the suit amicably on compromise on the following terms.

(2.) We the plaintiff and the opposite party No. 1 hereby mutually admit and egree that

(3.) Mr. Gopal Chandra Mukherjee, learned Advocate appearing for the petitioner, submitted that the trial court should have held on the interpretation of the Solenama that time was not essence of the. contract; further even if it were so, in view of the substantial compliance of the provisions of the contract by the plaintiff end on equitable consideration the court should have granted the relief to the plaintiff by decreeing the suit in terms of the Solenama instead of dismissing the same. He further submitted that in any event the contract in the Solenama was a voidable one and the opposite party No. 1 did not even avoid the contract by any overt act. He was accordingly not entitled to challenge the compromise contract. For all this reasons it was submitted that the judgment challenged in the rule should be set aside and suit should be decreed in favour of the plaintiff in terms of the Solenama. Mr. Tapas Roy learned Advocate appearing for the opposite party No. 1 contended that time was the essence of the contract and the plaintiff failed to perform his part of the contract as required and was not entitled to any relief.