MUSAMMAT MANKI KUNWAR Vs. GAURI SHANKAR

JUDGEMENT

(1.) In the lower court this was a suit for specific performance of a contract for sale embodied in a document, dated the 2nd of December, 1918. That document set forth that a dispute had arisen between Musammat Manki Kunwar and the defendant and other parties in like interest in relation to about 17 acres of land in mauza Lachipur. That land had been bought by Gauri Shankar a few years before. That land was the subject of a pre-emption suit brought by the present plaintiff, which at the date of this agreement of the 2nd of December, 1918, had been through two courts, and in each court had been decided adversely to the lady. At the date of this agreement there was an appeal pending in the High Court. With a view to put an end to the dispute relating to this land in mauza Lachipur, and also with a view to put an end to a rivalry between the parties with regard to certain land under the control of the Maharaja of Benares, they entered into the agreement in suit. In substance, in certain events the lady had to pay Rs. 5,000 in order to become the owner of, the land in mauza Lachipur; and as regards the other property, mauza Saktanpur and other mauzas, set out in the plaint, the parties were willing to become partners in that property, and partners on the basis of each taking a half. It appears that there were various persons who wished to acquire this property, and a man whose name is of no importance in the action, first offered a small amount of nazrana. The lady capped that by what became ultimately an offer of Rs. 10,000 and thereupon the defendant and his party added to it Rs. 1,000, making the offer Rs. 11,000. In this state of affairs the court of His Highness the Maharaja of Benares looked into the matter, and by the 2nd of December all the parties to this suit had recognized the inadvisability of bidding against each other, and indeed, on the 4 of January, 1919, they made it perfectly clear to the officers of His Highness that Rs. 11,000 would be paid--as to Rs. 5,500 by the lady, and as to Rs. 5,500 by Gauri Shankar and his father, and they would be content each to receive one-half of the property. That is in fact what has happened.

(2.) The complaint of the present plaintiff was that in breach of the definite agreement the defendants had refused to convey to her the Lachipur property for the Rs. 5,000 set out in the agreement. The defendant, searching about for a defence, thought that some vague allegations of fraud would help him and embodied them in paragraph 4. The plaintiff did not apply for particulars of the fraud and the learned Subordinate Judge, in entire disregard of the provisions of Order VI of the Civil P. C., proceeded to frame issues.

(3.) The one relating to fraud was remarkable. It runs as follows: Issue 1(c): "Were there any allegations is connection with the pre-emption second appeal made with intense deception which affected the defendants as alleged in paragraph No. 4 of the written statement? If so, how does that fact affect the claim?"