CHAUDHURI JANARDAN PARIDA Vs. PRANDHAN DAS

JUDGEMENT

(1.) This second appeal arises out of a suit for recovery of money which has been dismissed by both the Courts below. The case of the plaintiffs as set out in the plaint was that they sold to the defendant a certain property for a consideration of Rs. 4000 which was mentioned in the sale deed itself. It was alleged by the plaintiffs that out of the consideration Rs. 1500 remained unpaid and was to be paid to a creditor of the plaintiffs . Maguni, who held a mortgage of some of their properties. It was alleged that the defendant did not pay the money to the creditor, who brought a suit. The plaintiffs further alleged that out of the sum of Rs. 1500 so due the defendant paid to them Rs. 305 and therefore the suit was for Rs. 1195 only and interest thereon.

(2.) The defence was that the entire consideration of Rs. 4000 was paid up. The defendant however admitted that there was an independent agreement between him and the plaintiffs to the effect that the plaintiffs would make over to him the village and the settlement papers of the properties sold and would help him in the realisation of the arrears of rent of the period prior to the sale. These arrears were assigned by the plaintiffs to the defendant by the sale deed itself. The defendant admitted having paid Rs. 305 to the plaintiffs, but he said, it was a part payment as the plaintiffs had by that time done something towards carrying out the promise made by them, but as the plaintiffs failed to carry out their part of the promise nothing was due to them.

(3.) The Courts below have held that the plaintiffs story that Rs. 1500 remained unpaid out of the consideration of Rs. 4000 was false and that the entire consideration as mentioned in the deed had been paid up. They also held that there was an independent agreement between the plaintiffs and the defendant for the payment of Rs. 1500 in consideration of certain things to be done by them which they did. Both of them however have agreed in dismissing the suit on three grounds, one, that the plaintiffs could not succeed on a case not made put in the plaint, second, that the documents relied upon by the plaintiffs were tampered with and therefore the plaintiffs could not use them to support their claim and, the third, that the suit was barred. The plaintiffs have preferred this second appeal. The plaintiffs produced two documents which have been marked as Exs. 1 and 2. The former is a letter addressed by the defendant to Mr. S.N. Das Gupta, an advocate of this Court, in which he had promised that he would bring the mortgage bond dated 8 August 1917 from Hrudananda Sahu son of Maguni and would make it over to him, that is, the advocate, and that if he did not do so he would pay Rs. 1500. The document as it stands makes it an unconditional bond but both the Courts below have held that there was a condition attached to it by way of post script which has been torn off by the plaintiffs.