MUNSHI SHEO PRASAD Vs. NAWAL KISHORE

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for declaration of title and for recovery of possession of a fourth share in certain village property. The plaintiff Sheo Prasad along with his deceased brother's widow Musammat Mohan Kunwar executed a deed of gift in favour of the defendants and their brother on the 19th of January, 1915. Later on the donors brought a suit for the cancellation of that document. The suit was actually decreed by the first Court but on appeal to the High Court the suit was dismissed on the 14 of December, 1920. As the valuation was more than Rs. 10,000 and the decree of the first Court had been reversed an application for leave to appeal to their Lordships of the Privy Council was filed. That application was allowed and leave was granted. But apparently before the full security had been deposited and the appeal could be declared to have been admitted under Order XLV, Rule 8 a compromise duly signed by the parties was filed in this Court. It was sent down to the Court below for verification and report and was duly verified and returned On the 2nd of March, 1922, the High Court passed the following order "The parties have compromised the case, the appeal is allowed to be withdrawn". The compromise which had been filed dealt with the property which was the subject matter of the suit, but it was not registered, As the application for leave was withdrawn, the compromise, of course, could not be embodied in any decree of the Court. The plaintiff made an attempt to get his name entered in the revenue papers and succeeded before the Assistant Collector on the 17 of November, 1923. That order was, however, reversed by the Appellate Court on the 26 of February, 1924. Thereafter the plaintiff instituted the present suit on the 13 of July, 1925.

(2.) In the plaint he alleged that the parties had entered into a compromise by which it was decided that the plaintiff should get a one-fourth share of the entire property mentioned in the plaint as permanent owner, that the plaintiff made an application to the Revenue Court for mutation of names which was not granted on the ground that the plaintiff had not been in possession of that property, and that the plaintiff repeatedly asked the defendants to deliver possession to him over the property mentioned above, but they refused to do so. The date of the cause of action alleged in the plaint was the 2nd of March, 1922, when the application for leave to appeal was allowed to be withdrawn. The reliefs claimed were (a) a declaration that the plaintiff is the owner of the house, (b) a declaration of the plaintiff's right to one-fourth of the property mentioned in the compromise, coupled with dispossession of the defendants and restoration of the plaintiff's possession over the zemindari property, (c and d) mesne profits and (e) and other relief which may be beneficial to the plaintiff. The plaintiff did not expressly ask for the specific performance of any contract between the parties.

(3.) The defendants in a short written statement denied that there was any valid compromise and urged that the parties had rejected the said compromise. There was a legal plea that, the compromise being on an insufficiently stamped paper and unregistered, no decree could be passed on it. There was further a denial of the plaintiff's right to get mesne profits, and there was a plea of three years limitation.