RAM KUMAR DAS Vs. NANDA KUMAR SHAHA

JUDGEMENT

(1.) The plaintiff is the appellant before us, and the facts which have given rise to the suit out of which this appeal has arisen are shortly stated as follows : The defendants Nos. 1 and 2, who are the landlords, sued the plaintiff for an order for registration of an alleged agreement in respect of a tank. They were unsuccessful. They then sued the old tenant defendant No. 7, one Rajani Raha, for the rent of the holding and obtained an ex parte decree. The latter applied for the setting aside of the said ex parte decree. During the pendency of that application, the defendant No. 7 applied for an adjournment of the hearing of the said application on the ground of his illness, and in support thereof used an affidavit which had been sworn to by the plaintiff who had purchased the holding, which had originally belonged to defendant No. 7, and who had been recognized as tenant by the landlords, i.e., the defendant Nos. 1 and 2. The affidavit referred to above was filed on the 10 February, 1917 and it was alleged that the affidavit was false to the knowledge of the plaintiff. On the 14 March 1917, the defendants Nos. 1 and 2 applied to the Court for sanction under Section 195 of the Code of Criminal Procedure to prosecute tie plaintiff for offences under Secs.193 and 199, I.P.C., alleging that he had made a false affidavit. The application for sanction was set down for t hearing on the 2nd February, 1918, after various adjournments had been obtained by the parties. On that date the defendants 1 and 2 filed a list of their witnesses who were in attendance but subsequently on the same day they and the plaintiff filed a joint petition for time, alleging that they had come to terms, and that the plaintiff would execute certain deeds on the following Tuesday settling a tank and bhita with defendants 1 and 2's man Jagat Saha, and releasing some paddy lands to the defendant No. 7, Rajani Raha." The case was accordingly adjourned to the 6 February, 1918, and on that date a petition was filed by both parties, stating that the matter had been settled and praying that the application might be dismissed. The application was accordingly dismissed. On the same day the plaintiff executed and presented for registration three deeds, Ext. C, a patta settling the tank with defendants 1 and 2; Ext. D, a deed of release, relinquishing the bhita in favour of defendant No. 3, and Ext. E, a conveyance conveying the nal lands to the defendant No. 7, Rajani Raha. The plaintiff, in the present suit, alleges that the defendants 1 and 2 gained over the defendant No. 7, and as the result of a conspiracy between these persons and defendant No. 3 and Naba Saha, who was the predecessor-in-interest of the defendants Nos. 4 to 6, the case for sanction to prosecute the plaintiff was started. The plaintiff was apprehensive that sanction might be granted for prosecuting him, and as the defendants continued to threaten him with prosecution, he was compelled to accept their proposals that he should execute certain deeds in consideration of their abandoning the application for sanction to prosecute. He urges that he executed the document referred to above without any consideration and as a result of undue influence, coercion and threats of criminal prosecution exercised and used by the defendants 1 and 2, and he prays for a declaration that the said deeds are void and inoperative, and for an injunction restraining the defendants from exercising any rights over the properties comprised in the said deeds. There is also a prayer for recovery of possession of the said properties, should it be found that possession thereof is with the defendants. The allegations made by the plaintiff as regards charges of conspiracy, undue influence, coercion and threats of criminal prosecution are denied by the defendants, and it is urged on their behalf that the plaintiff voluntarily executed the deeds in question.

(2.) The trial Court found that the possibility of a trial for perjury unsettled the plaintiff's mind and that on the 2nd February, 1918, he had no other alternative but to accept the proposal of the defendants 1 and 2 in order that he might extricate himself from the position in which he found himself. It was further found that the defendants 1 and 2 were in a position to dominate the will of the plaintiff, and that the facts connected with the execution of the deeds in question could fit in only with the theory that the defendants 1 and 2 did take advantage of their position to exercise undue influence upon the plaintiff to induce him to execute the deeds in question in respect of properties which the plaintiff had all along jealously guarded, and it was also found that no consideration whatsoever had passed in respect of the deeds. After reviewing the entire evidence in the case, the trial Court held that the deeds were executed by the plaintiff under undue influence practised upon him by the defendants 1 to 3 and 7, and for the purpose of avoiding a possible prosecution for perjury. In this view of the matter the plaintiff's suit was decreed.

(3.) The defendants preferred an appeal and it was held by the lower appellate Court that it could not be said that there was a criminal conspiracy for the purpose of putting the plaintiff to trouble. It was further held that the plaintiff understood that there was every chance of sanction being accorded for his prosecution, and in order to avoid the prosecution, I which might result in a conviction, the plaintiff agreed to a compromise with the defendants on such terms as they were willing to offer. In other words, it was found that the compromise was for the purpose of stifling a criminal prosecution for a charge which was not compoundable, and that the object of the compromise was consequently illegal. But the lower Appellate Court held that the plaintiff could not apply to set aside the said document, inasmuch as he was a person in pari delicto with the defendants, and further, that on the evidence no case of undue influence had been made out. The lower Appellate Court, therefore, set aside the judgment and decree of the Court of first instance.