INDRA NATH BANERJEE Vs. ROOKE

JUDGEMENT

(1.) The plaintiff in this case has one-sixth share of a dar-patni comprising Mouzah Jote Janki. The defendant No. 1, Babu Indra Nath Banerjee, obtained from the owners of the remaining five-sixth share of the dar-patni a lease of that share as se-patnidar. The lease is dated the 28 June 1898. On the 3 June 1899, the defendant No. 1 instituted a suit for partition against the present plaintiff, Mr. Rooke, which suit was terminated by a compromise and withdrawn on the 8 June 1899, each party paying his own costs. It appears that under the compromise Mr. Rooke agreed to give the defendant No. 1, a mokarari lease of the mineral rights in his share of dar-patni interest. That lease was duly drawn up, and it was executed and registered on the 21 September 1899. Mr. Rooke brings the present suit to set aside the lease on the ground of fraud, the fraud alleged being that some time after the execution of the lease, Babu Indra Nath Banerjee caused a sum of Rs. 500 to be paid to defendant No. 2, Bejoy Gobind Chatterjee, as a bribe or secret commission in respect of services rendered by the latter during the negotiations which led up to the compromise and the lease, and in which he purported to act as Mr. Rooke's servant or agent.

(2.) It is admitted that the amount stated was in fact paid to the defendant No. 2 under the orders of the defendant No. 1 sometime between November 1899 a February, 1900; but it is denied that the money was paid as a bribe or commission. An entry of the payment was made in the accounts of the defendant No. 1, under date the 23 August 1900. Mr. Rooke asserts, and the statement may be accepted, that the payment came to his knowledge on the 20th April and 1 May 1906, owing to disclosures made on those dates in the course of the evidence given by certain witnesses in another suit. To conclude this brief sketch of the facts, it may be stated that Mr. Rooke on the 18 August 1904 instituted, against the defendant No. 1, a suit (No. 1462 of 1904) for arrears of royalty due under the lease of 1899. The Munsif's judgment in Mr. Rooke's favour was pronounced on the 27 January 1906, and the Subordinate Judge's judgment dismissing the appeal on the 26 August 1906. On the 27th June 1905 Mr. Rooke instituted another suit (No. 126 of 1905) against the defendant No. 1 on the allegation that the latter had dispossessed him of part of the lakheraj lands to which he was entitled under the lease of 1899. The Munsif's judgment dismissing the suit was pronounced on the 31 January, the appeal by Mr. Rooke being dismissed by the Subordinate Judge on the 6 August 1906. Mr. Rooke apparently contested both these suits on appeal relying on the lease of 1899, though the appeals came on for hearing after the date on which the present suit was instituted (the 4 May 1906).

(3.) I turn now to the terms of the lease of 1899. The lease was a permanent lease of the lessor's underground rights in respect of the coal in his share of the dar-patni. No salami was paid, but the defendant No. 1 agreed to admit Mr. Rooke's lakheraj rights (about which there had been some dispute) in 99 bighas of land in Mouzah Jote Janki comprised in six plots described in the Schedule. The plots adjoin one another and form therefore a compact block. The rate of royalty provided by the lease was six annas per ton for steam coal, the plaintiff being entitled to one anna per ton in respect of his one-sixth share of the dar-patni subject to a minimum of Rs. 72 a year.