JAGJIVAN MULJI Vs. NATHJI JAGESHWAR

JUDGEMENT

(1.) The plaintiff sued for the removal of what is styled in the plaint a curved heap of clay projecting beyond the otta of a house formerly belonging to defendants Nos. 1 and 2 and subsequently transferred to defendant No. 3. He alleged that in a complaint lodged before the 3rd Class Magistrate against defendants Nos. 1 and 2, it was agreed that the heap projecting beyond the otta was to be removed and that owing to an undertaking accepted by defendant No. 4 the complaint was withdrawn; and later on he says that defendant No. 3 has been joined as he purchased the plaint house, that is, the house to which the otta appertained mentioned above in the plaint, and defendant No. 4 was made a party because of his kabuliyat to get the heap removed. The defendant No. 4 in his written statement denied being a surety to the compromise between the parties and said that in the criminal proceedings he was working as a mukhtyar on behalf of defendants Nos. 1 and 2, and that finally an amicable settlement was arrived at and mutual documents were passed whereby defendants Nos. 1 and 2 had agreed to remove so much of the otta as might be found to have been newly enlarged, and that he had been unnecessarily joined.

(2.) Upon the evidence the learned Trial Judge states: It appears that a charge was framed against defendant No. 1 on the 9th January 1910, and the agreement was entered into two days later, i.e., on the 11th January 1910. But the defendants were acting under legal advice. Messrs. Harishankar D. Joshi and Mulji Narottam, mukhtyar, were their advisers in the Magistrate s Court. The written agreement, Exhibit 44, is proved by the latter, and in his written statement, Exhibit 7, he supports the oral agreement set up in the plaint." That is a misstatement of defendant No. 4 s written statement which, as already observed, states that an amicable settlement was arrived at and mutual documents were passed whereby defendants Nos. 1 and 2 agreed to remove so much of the otta as- might be found to have been newly enlarged. Exhibit 44, which was the document drawn up by the legal advisers of the parties in compromise of the criminal proceedings, commences with the recital of disputes relating to a privy and land and other matters concerning the old houses of the plaintiff and the 1st defendant adjoining each other, and after that recital it states: "Ultimately I filed a complaint. The same is this day compounded, i.e., a settlement is come to as follows." Then follow elaborate provisions with regard to a privy and passage between the two houses without any reference whatever to any projection from the otta, and it is stated and also proved to the satisfaction of the lower Court that this document was prepared in duplicate, one counterpart being signed by each of the contesting parties. Therefore, we have a full and elaborate statement of the consideration for the withdrawal of the criminal proceedings. The plaint, however, is entirely silent as to all the considerations stated in Exhibit 44, and states that owing to an undertaking accepted by defendant No. 4 the complaint was withdrawn, the undertaking being with reference to the removal of the projecting part of the otta. It appears to me that in putting forward the case that the complaint was withdrawn in consideration of the compromise to remove the otta, the plaintiff is attempting to add a new term to the agreement, Exhibit 44, which settled the terms of the compromise. The point appears to have escaped the notice of the lower Courts, and we have, therefore, now had a prolonged argument on the part of the plaintiff s Pleader, and since the adjournment yesterday he has addressed us again upon the same point, but nothing that he has urged has in any way shaken my conviction that the alleged agreement sued upon is without consideration.

(3.) In this view of the case, it is not necessary to consider another important and difficult question of law, which also appears to have escaped notice in the lower Courts, and that is whether an affirmative agreement to do certain work can be enforced against the purchaser with notice of the agreement so as to justify a mandatory injunction calling upon him to do the work. It apparently could not be enforced in England upon the authority of Tulle v. Moxhay (1848) 2 Phill. 774 at p. 778 and subsequent cases. Whether it could be enforced under Section 40 of the Transfer of Property Act is a point which, in view of the failure of the plaintiff to prove consideration for the agreement set up, it is not necessary now to decide. I would, therefore, reverse the decree of the lower Appellate Court and dismiss the suit with costs throughout. Beaman, J.