RAJA RANBAHADUR SINGH Vs. NAGARSETH KASTURBHAI MANI BHAI

JUDGEMENT

(1.) The subject of this appeal is the Pareshnath Hill in the Hazaribagh District of Chota Nagpur, which has for many hundred years been held sacred by both branches of the Jain religion, the Swetambaris and the Digambaris, and has unfortunately been the subject in the last 20 years of no less than four suits, of which two, Hukum Chand V/s. Ran Bahadur Singh, AIR 1924 PC 156 and Maharaj Bahadur Singh V/s. Hukum Chand, AIR 1926 PC 13, have already been dismissed by His Majesty in Council affirming the decision of the Courts below, while the appeals in this and the remaining suit now await decision. The present suit was instituted on 24th June 1920, by the Raja of Palganj and the Digambaris, who had obtained from the Raja a permanent lease of the Hill on 4 January 1919, to recover possession and mesne profits from the Swetambaris, in whose favour a deed of sale had been executed on 9 March 1918, by the Manager of the Palgauj estate under S. 18, Chota Nagpur Encumbered Estates Act, 1876, on the ground that the sale was illegal, invalid and inoperative on 18 grounds set out in para. 20 of the plaint. All these grounds were rejected by both the lower Courts, but before coming to them their Lordships will refer to the defendants' plea in limine that the suit was barred by reason of a compromise entered into in another suit.

(2.) On 6 October 1917, the Commissioner of Chota Nagpur had sanctioned the sale of the Hill to the defendants under S. 18 of the Act, subject to his approval of the sale deed. On 4 January 1918, an appeal by the Raja of Palsanj, represented by the Manager, came on for hearing before the High Court of Patna from a decree of the Subordinate Court of Hazaribagh in a suit brought against him by the Raja of Nawagarh claiming an undivided half share of the Pareshnath Hill. On 31 January the hearing of the appeal was adjourned at the suggestion of the Court with a view to a compromise, and on 4 February both parties filed a petition stating that the suit had been compromised on the terms that they should each of them dispose of their interests in the Pareshnath Hill to the Swetambaris on terms already settled, that all questions of ownership in the Hill should be left undetermined, and that the boundaries between the Hill and the Nawagarh estate should be demarcated. Under this compromise the Raja of Palganj's interest in the Hill was to be sold to the Swetambaris on the terms already sanctioned by the Commissioner. At the same time the Swetambaris who were not parties to the suit presented a petition agreeing to these terms. It was ordered to be recorded, and the petition was adjourned to allow of the conveyances being executed and the boundary demarcated. On 26 February the Raja of Nawagarh executed a permanent lease in favour of the Swetambaris, and on 9th March, as already stated, the Manager of the Palganj estate, pursuant to the sanction of the Commissioner of Chota Nagpur, dated 4 March, executed the deed of sale which is now in question. Finally, on 19th November 1919, after the report of the demarcating officer had been received, the High Court passed a decree allowing the appeal in terms of the compromise petition and the map annexed to the decree.

(3.) On these facts the Subordinate Judge held at the trial that the sale and lease executed by the parties to the suit pursuant to the compromise were merged in the compromise decree and that therefore the sale could not be questioned in this suit. He accordingly dismissed the suit. The High Court, after calling for findings on the other issues which the Subordinate Judge had left undecided, held that the agreements for sale and lease were outside the scope of the suit, that the only terms within it were the agreement to leave the claims of the parties to the Hill unsettled and the provision for a demarcation of the boundary between the Hill and the Nawagarh estate, and that therefore the compromise decree could not be taken to have decided the question of the validity of the sale deed and was not a bar to the present suit. They proceeded to deal with the case on the merits, and held, agreeing with the finding of the Second Subordinate Judge on the remaining issues, that the plaintiffs' suit failed.