CHANCHALA BALA DEBI Vs. SASHIBHUSAN DAS

JUDGEMENT

(1.) This appeal is on behalf of plaintiff 1 and arises out of a suit (Title Suit No. 232 of 1931) instituted by him and plaintiff 2, a minor, to set aside a compromise decree passed in Title Suit No. 176 of 1930. The last mentioned suit was brought by plaintiff 1, plaintiff 2 and their uncle, pro forma defendant 6, to establish their title to and recovery of possession, from the principal defendants of the lands described in Schedule Ka annexed to the plaint. The relevant facts are these: One Ram Krishna Samanta, grandfather of plaintiffs 1 and 2, and father of pro forma defendant 6, lent money to defendants 3 to 5 and the predecessor in interest of defendants 1 and 2. He took as security the properties described in Schedule Ka and Kha. Ram Krishna obtained a mortgage decree and in execution of the said decree caused the mortgaged properties to be put up to sale and himself purchased the same at the Court sale in the year 1919. It is the plaintiffs case that Ram Krishna took physical possession of the properties described in Schedule Kha, and remained in actual possession, but he took only symbolical possession of the property of Ka Schedule, which continued to remain in the possession of his judgment-debtors, it being their dwelling house. The plaintiffs further case is that the landlords obtained a collusive rent decree, put up the defaulting tenure to sale, and one Keshab Naik purchased the same. Keshab is said to be the benamidar of the principal defendants. On these allegations Ram Krishna instituted the aforesaid Title Suit No. 176 of 1930 against the principal defendants. In that suit he prayed for recovery of possession of the properties described in Schedule Ka only, the properties described in Schedule Kha not being the subject-matter of the said suit. During the pendency of the said suit Ram Krishna died and his heirs, plaintiffs 1 and 2, and pro forma defendant 6, were duly substituted as plaintiffs in his place. Proforma defendant 6 used to look after the said Title Suit No. 176 of 1930 on behalf of all the plaintiffs. It is in evidence that at a late stage of the suit, i.e. on 19 June 1931, the principal defendants of the suit approached plaintiff 1 and pro forma defendant 6 and proposed terms of compromise to them direct.

(2.) The terms proposed were that the plaintiffs and pro forma defendant 6 were to give up their claim to the Ka Schedule property, that the principal defendants agreed to leave the plaintiffs and pro forma defendant 6 in undisturbed possession of the Kha Schedule properties and that if the principal defendant paid to the plaintiffs and pro forma defendant 6 a certain sum of money within a certain time, the plaintiffs and the pro forma defendant 6 were to convey to the principal defendants the properties of Schedule Kha except a pucca house. At that time plaintiff 1 demanded Rs. 2,500 as the price to which the principal defendants did not agree, and the proposal fell through. The suit was fixed for hearing on 22 June, 1931. On that day pro forma defendant 6 came to Court with witnesses and was on the witness box. With the permission of the Court, he was got down from the witness box and terms were proposed to him. Plaintiff 1, Manmatha, was not present in Court on that date, and pro forma defendant 6 had no authority given to him by plaintiff 1 to compromise on his behalf. The vakalatnama which plaintiff 1 and pro forma defendant 6 had executed in favour of their pleader, Babu Srenath Dass, empowered the latter to compromise the case. The deposition of Srinath Babu is material. He says that the pro forma defendant 6 was brought down from the witness box with the permission of the Court and he requested him to accept the terms proposed by the other side as beneficial. The terms were that the plaintiffs (of Suit No. 176 of 1930) were to give up their claim to the Ka Schedule properties, that the defendants would not disturb their possession in respect of the Kha Schedule properties, and that if the defendants paid to the said plaintiffs Rs. 2,200 within the month of Magh 1338, the plaintiffs would convey to the defendants the Kha Schedule properties except a pucca house. The pucca house was however as is the finding of the lower appellate Court, erroneously included in the properties which the plaintiffs were to convey to the defendants on recent of the said sum of money, Rs. 2200 The evidence of Srenath Babu, the pleader is definite.

(3.) The terms were proposed to pro forma defendant 6 and he (Srenath Babu) made recommendations to him (the pro forma defendant 6.) When the said pro forma defendant 6 accepted the terms the draft was prepared and the Solenamah was filed by Srenath Babu, as he thought that plaintiff 1 had no objection. In this state of the evidence I am of opinion that plaintiff 1 is not bound by the compromise, simply because his pleader signed and filed the Solenamah. The principle formulated by their Lordships of the Judicial Committee in Sheonandan Prosad Singh V/s. Abdul Fateh Mohammad Reza 1935 P C 119 to my mind applies to this case. The pro forma defendant 6 was present in Court; he was asked by the pleader to consider the terms and to accept them as in his opinion they were beneficial. Although the vakalatnama had given him power to compromise, Srenath Babu was not purporting to act on the basis of his said power. His evidence makes that clear. He referred to his client, pro forma defendant 6, who was present in Court. He was merely acting more as a messenger between the two clients", as Lord Atkin puts it in Sheonandan Prosad Singh V/s. Abdul Fateh Mohammad Reza 1935 P C 119. In these circumstances, plaintiff I can only be held bound by the compromise if, and only if, he had given the pro forma defendant 6 power to compromise on his behalf. The lower appellate Court was therefore not right in holding that plaintiff 1 was bound by the compromise simply because the vakalatnama authorised Srenath Babu to compromise. In this view I hold that the compromise decree must be set aside against plaintiff 1 also.