JNANENDRA NATH DUTT Vs. NASEA DASI

JUDGEMENT

(1.) In this case the appellants take exception to the decree on the ground that on the 2nd February, 1921, the suit was compromised and that on the 2nd March, 1921, they drew attention of the lower appellate Court to the allegation of a compromise by their petition filed on the 2nd March. The petition is before me; and it certainly is not a formal petition one which sets out the compromise and prays that the compromise may be recorded and the suit decreed on compromise. What happened was that on the 2 March, the appeal was adjourned till the 10 March for the appellant to state what she had to state with regard to the plaintiff's allegation. On the 10 March the appellant filed a petition stating in effect that the plaintiff's allegation was untrue and explaining by a different explanation the circumstances under which the sum of Rs. 510 had been paid to the plaintiffs. The order-sheet sets out the fact of that petition and then says this: "Inform pleader for the respondent. Let the petition be filed." The next order on the same day is as follows : "Argument heard in part; put up to-morrow for further orders." The judgment upon appeal in no way refers to this allegation of a compromise and the appeal appears to have been argued by the pleaders of the parties on its merits.

(2.) In this appeal, the first objection taken is that the learned Judge was wrong in entertaining the appeal and should have decided upon the fact whether the suit then pending in appeal was compromised or not : Now it is quite certain that if a compromise is alleged, that is a question of fact for investigation; and the conduct of the parties and the notes on the order-sheet make it a little difficult to know what had happened. It seems incredible that any learned Judge in the face of an allegation that the appeal had been compromised would proceed to hear the appeal ignoring that allegation altogether. It seems also incredible that the pleader for the respondent should argue the appeal without insisting in some way upon a note being taken of the point and that he had no duty to take any part in the appeal. The parties between them have combined to make the record as unintelligible as it can well be, and the only explanation that seems to be reasonable is that when it was found that the allegation of a compromise-was asserted and denied and that the petition stated very vaguely the intention of the parties the matter was not insisted upon. Otherwise I cannot bring myself to think that the learned Judge would have ignored the allegation of compromise and that nothing to that effect would appear in the judgment. As a matter of fact that the mere absence of any affidavit on the part of the appellants stating that their pleader had stoutly insisted upon this point and asked the Judge to go into the matter under Order 23, Rule 3, leads me to think that the learned Judge entertained this appeal because the objection was not insisted upon. It is quite apparent that the appellants have taken this chance of succeeding on the appeal. For this reason this appeal must be gone into on the merits.

(3.) The plaintiffs sued to eject the defendant from possession of a piece of land measuring about 2 cottahs in area and situated in the Bougaon bazar. It has been found as a fact that the title of the defendant is a permanent one. The history of the holding which is now in the possession of the defendant is as follows: In 1877 one Bhagwan, (the father of the present plaintiffs) settled it with one Gobindo Chandra Ghose. There was no written lease or other instrument of tenancy and the jama appears to have been settled orally. The finding is that it is not known for what purpose the letting was made originally; but that so far as we can trace it, it appears to have been used for the purpose of a shop of some kind or another. In fact at one time it is known that the lessee was realising rent of a hut constructed by him on the land. There have been several occasions on which the tenancy passed by way of succession from the holder to the holder's heirs, But on the 15 February, 1890, we have a transfer which on the evidence shows that it must have come, or would probably come to the knowledge of the landlord. That Kobala asserts without ambiguity that the rent is a Kaimi rent of Rs. 2-6 and the right which the Kobala purports to grant is plainly intended to be a permanent right. Khat- Kobala was executed during the lifetime of the original lessor (the plaintiffs father) who died in 1907, having throughout the intervening years taken no steps to eject the transferee to endeavour to raise the rent or to refuse, to recognise the transferee; moreover one holder is shown to have mortgaged the land and the defendant got a satisfied mortgage bond from her vendor. What happened in the end was that in 1915 the present defendant took a Kobala of the property and the present suit has been brought to restrain her from erecting a pucca building and to get her ejected.