RADHAJIBAN MUSTAFI Vs. TARAMANI DASI

JUDGEMENT

(1.) Their Lordships are of opinion that no ground has been laid for prolonging this unfortunate litigation by the allowance of these appeals. It is unnecessary to state the earlier proceedings in the first cause. It seems sufficient to begin with the order of the 30th August 1862, which has been admitted to be final. By that order it was held, that Sarbeswar had established his right to take out execution for the mesne profits claimed by him, as well as for the possession of the land included in the fourth article of the compromise; and that it was no bar to his execution that it had been alleged that he had broken trust, inasmuch as he had not carried out the terms in accordance with which it was agreed that he should hold possession. This order was neither the subject of appeal, nor in their Lordships' opinion could have been successfully made so. There is no ground, as it appears to them, for saying that the proof of the performance of the religious ceremonies was a condition precedent to the enforcement of the claim for the rents which the fourth article of the compromise gave to Sarbeswar. And without inquiring whether many of the points, which are now taken, might not have been raised in the litigation which led to the order in question, or are concluded by it, it is sufficient to state that its effect was, that, as between the two brothers, Sarbeswar was entitled to take out the execution which he claimed to take out, and that the respondent, if he had any claim by reason of the non-performance of the religious ceremonies, or any other breach of the agreement, was bound to prefer that claim in a regular suit.

(2.) In anticipation of that order, the younger brother (the appellant) had commenced the suit out of which the other appeal has arisen. It will be convenient to consider the nature of that suit, and the right of the party to have the decree that has been made in it reversed or altered, before we proceed to the subsequent proceedings in the original suit.

(3.) The suit which was so instituted was not exactly such a suit as that suggested by the judgment of the 30th of August 1862. What the Judges of the High Court said was, that if the appellant, on the ground of any breach of agreement, claimed a right to dispossess the respondent, he might prefer that claim in a regular suit. But the suit really instituted was of the following nature. It was a suit in which the party alleged that, by reason of the nonperformance by Sarbeswar of the duty which he had undertaken under the fourth article of the compromise, he, the plaintiff, had been compelled to perform certain religious ceremonies at his own cost, and that he had a right of action over against Sarbeswar for the moneys expended in the performance of those ceremonies. It was, therefore, essential, in such a suit, that he should show that he really had that right of action; that there not only had been the breach of duty alleged, but that by reason of it he was entitled to recover the damages which he had sustained from his brother. And he had of course to prove the amount of those damages.