DURGA PRASAD SHARMA Vs. SADASIB BISWAL

JUDGEMENT

(1.) THIS second appeal has been preferred by the defendant against a modifying judgment. The plaintiff-respondent was an employee of the defendant. On 19-659, there was a settlement between the parties at which it was ascertained that defendant was to pay in all Rs. 2,482 (Rs. 1,620/- towards arrears of salary plus rs. 862/- alleged to have been spent by plaintiff in the management of defendant's properties ). This liability was acknowledged by the defendant who paid Rs. 610/- in cash and for the balance of Rs. 1,872/-, it was agreed that defendant would execute a sale deed and transfer bhogra lands described in schedule A of the plaint after abolition of gountiaship and conversion of bhogra into raiyati. The settlement was endorsed in writing in the note book marked Ex. 1. Plaintiff continued to serve defendant till Chaitra 1960 and for the subsequent period arrears of salary amounted to Rs. 300/ -. Due to some differences between the parties, defendant filed T. S. No. 41/60 in the Court of Munsif, Bamra for declaration of his right, title and interest in the A schedule lands which was decreed in his favour. Therefore, plaintiff claims to be entitled to recover Rs. 1,872/- which had been agreed to be adjusted towards the sale plus Rs. 300 towards arrears of salary for the post-settlement period which comes to Rs. 2,172/ -. He, however, filed the suit to recover Rs. 1,995/- relinquishing the balance. Defendant admits to have accepted the liability under the settlement dated 19-6-59 as alleged. He, however, states that he agreed to the plaintiff's proposal to possess the A Sch. Bhogra lands for few years in satisfaction of his claim on the understanding that if the bhogra lands would be converted into raiyati, plaintiff would purchase the same at the then market rate. Subsequently, however, plaintiff declined to take the lands and demanded payment of his dues amounting to Rs. 1872/ -. Therefore, defendant withdrew Rs. 2,000 in two instalments from his postal savings bank account on 4-7-59 and 7-7-59 and made full payment of the plaintiff's dues. Alternatively, he has pleaded that even if the alleged payment of Rs. 1,872/- by him is not believed, plaintiff will not be entitled to get refund of the money as the contract for sale of bhogra lands was illegal and void ab initio. He asserts to have fully paid the salary of plaintiff for the period of his service subsequent to July, 1959. In addition, he also resists the claim on the ground of limitation as well as res judi-cata.

(2.) THE trial court disallowed the entire claim so far it relates to the period prior to 19-6-59 and decreed the claim relating to the subsequent period in part for Rs. 300/- only on the following findings; (1) the settlement between the parties on 19-6-59 so far the claim related to the period prior to that date is final and conclusive and suit is not barred by limitation having brought within three years from the date of settlement where liability was acknowledged by defendant; (2)the payment of Rs. 1,872/- on 7-7-59 as alleged by defendant in satisfaction of plaintiff's claim is proved; (3) even if the alleged payment is not believed, plaintiff is not entitled to get refund of the consideration of the agreement dated 19-6-59 as the contract was void ab initio; (4) the claim for refund of Rs. 1,372/- is barred by principles of res judicata; (5) payment of Rs. 100 towards arrears of salary for the period subsequent to July, 1959 by the defendant to the plaintiff is proved and the balance of Rs. 200 only remained outstanding; (6) defendant having failed to pay court-fee towards his claim of usufruct of the A Sch. lands for the year 1959 alleged to have been appropriated by the plaintiff, no finding on it can be given.

(3.) PLAINTIFF preferred an appeal against the part of the judgment and decree disallowing a substantial portion of his claim, while defendant filed cross-objection so far the trial court decreed the suit in part against him for Rs. 200/ -. The lower appellate court rejected the cross-objection in totp, reversed the other findings of the trial Court, except the finding that defendant had paid Rs. 100 to the plaintiff subsequent to July, 1959, allowed the appeal and decreed the suit for Rs. 1895/ -. It held that the alleged payment by defendant to the plaintiff on 7-7-59 is not proved and that plaintiff is entitled to refund of the consideration as the contract dated 19-6-59 was not void ab initio.