RAMJI PATEL Vs. RAO KISHORESINGH

JUDGEMENT

(1.) This is an appeal by the plaintiff in the suit from a decree of the Court of the Judicial Commissioner, Central Provinces, setting aside a decree of the District Judge, Nimar. The date of the first-mentioned decree was August 22, 1925, and the date of the second-mentioned, namely, that of the District Judge, was May 8, 1924.

(2.) In 1908 the defendant respondent had instituted a suit against two widows to recover possession of an estate known as the Bhamgarh Zemindary, and after having obtained a decree in his favour, that decree was reversed by the Court of the Judicial Commissioner. He desired to prosecute an appeal to His Majesty in Council, and to enable him to do so he had to raise money. He entered into an agreement with the plaintiff on November 11, 1912, with regard to the advance of the sum of Rs. 5,000 by the plaintiff on the terms therein mentioned. The agreement was as follows :- I have brought from you Rs. 5,000 in words five thousand cash in order to file ray appeal to the Privy Council, and at this time I am very badly in need of thin amount, because if you do not pay me the amount now, it will be extremely difficult for ma to file the appeal. Therefore I lay down in writing and bind myself by this agreement that when I may win my case in the Privy Council in England and a decree may be passed in my favour, I shall at one sell, in lieu of this amount, the full sixteen anna proprietory rights of mauza Khedi out of ray villages, Settlement No. 387, tahsil Harsud district Nimar, area 3,630,87, Government demand Rs. 125, with all rights, under a duly registered sale-deed and put you in possession of the mouza. If I fail to do so, you may take possession of the mauza and geb a sale-deed duly executed through a civil Court. If unfortunately the decree be not passed in my favour and the case decided against me, I shall pay interest at eight annas per cent, per mensem on this amount from the date of decision of appeal, and execute a separate bond for the same agreeing to pay the amount by instalments. I shall not raise any objection. And on winning the case, I shall execute a sale-deed of mauza Khedi, tahsil Harsnd, in lieu of this amount, without fail. Therefore I have executed this deed of agreement with my free will and pleasure on receiving the amount in cash. If; is true. It may remain as a record and be of use when necessary.

(3.) Shortly stated, the facts are that he won his case before the Judicial Committee of the Privy Council, which allowed his appeal; and that he refused to carry oat the agreement above RAMJX,,. AML quoted, hence the present suit. The remedy sought by the plaint was for a decree as follows: (a) Ordering the defendant to execute properly a registered sale deed conveying validly to the plaintiff his entice interest, consisting of 16 anuas, in maaza Khedi as described in list A herewith attached, with all rights appurtenant thereto and to deliver possession of the same to the plaintiff. (b) It is also prayed in the alternative that if the Court does not think fit to grant the above relief to this plaintiff for any reason, the Court be pleased to order the defendant to refund the sum of Rs. 5,000, with interest at 2 per cent, per month on it, from the date of agreement till realization, plus Such amount by way of compensation to the plaintiff for the loss of the immovable property which he will thus suffer. (c) The plaintiff prays for his costs of the suit and such other relief as the Court thinks fit.