The Judgment of the Court was as follows:—
Mukherjea, J.:— This appeal is on behalf of the Plaintiffs and it arises out of a suit commenced by them for specific performance of a contract embodied in a petition of compromise which was filed and made the basis of the decree in T.S No. 103 of 1931 of the Court of the 1st Sub-Judge at Alipore. The facts are not in controversy. Suresh, the father of the Plaintiff and Defendant No. 2, who is the father of Defendant No. 1, are two brothers. There was an estate bearing Touzi No. 1300 of the 24-Parganas Collectorate which was purchased ostensibly by Defendant No. 1 at a revenue sale. Upon that, Suit No. 103 of 1931 mentioned above was commenced in the Court of the 1st Sub-Judge at Alipur by Suresh as Plaintiff and his brother Rajendra and his son the present Defendant No. 1 were made parties Defendants to that suit. The Plaintiff Suresh sought for a declaration in that suit that the purchase in the name of Defendant No. 1 wag really for the benefit of himself and his brother Rajendra and he prayed for establishment of his title to the extent of 8 annas share in the estate in dispute. That suit culminated in a compromise and one of the terms of the compromise which was embodied in paragraph (4) of the petition filed in Court was as follows: The Defendant No. 1 was declared to be the 16 annas over of Taluk No. 1300, which he purchased at the revenue sale but he was to grant a mourashi lease in respect of the 8 annas share of the same to Suresh, the father of the present Plaintiff and Robindra, his eldest son, who is Plaintiff No. 1 in this suit, at an annual rental of Rs. 9. He was at the same time to take a darpatni of the same 8 annas share from the hitter at a rental of Rs. 61 a year. The Defendant No. 1 was therefore bound in the 1st place to execute a potta in favour of Plaintiff No. 1 and his father and the latter had to execute a darpatni lease in favour of Defendant No. 1 for which he in his turn had to execute a kabuliyat. Suresh subsequently died and the four Plaintiffs are his sons and heirs at law and as Defendant No. 1 did not execute the mourashi potta and the durputni kabuliyat in terms of the said compromise they instituted the present suit.
Various defences were taken by the Defendant No. 1 who contested the suit.
It was contended in the first place that the compromise petition could not he enforced piece-meal and the various clauses being inter-dependent, a suit would not lie to enforce one of its terms only. It was said also that there was no consideration for the contract and the Defendant No. 1 was induced by fraud and misrepresentation to enter into the compromise. Lastly it was pleaded that the proper remedy of the Plaintiff lay in an application for execution of the decree which was passed on the compromise and the present suit was barred under sec. 47, C.P Code. The trial Court overruled all the defences and gave the Plaintiff a decree. On appeal, the lower Appellate Court reversed the decision of the Munsif and dismissed the suit on the sole ground that the Plaintiff's suit was barred under sec. 47, C.P Code. It is against this decree of dismissal that the present appeal has been preferred.
The point for our determination is as to whether the compromise that is sought to be enforced was within the scope of Title Suit No. 103 of 1931 of the Court of the 1st Sub-Judge, Alipur and hence came within the operative part of the decree that was passed therein. If this question is answered in the affirmative it is not disputed that the remedy of the Plaintiffs would be by way of execution of that decree and not by instituting a suit for specific performance of that agreement. Now the suit undoubtedly was to establish the title of the father of the present Plaintiff to a moiety share of the property in suit, on a declaration that Defendant No. 1 was his benamdar to that extent.
The clause in the compromise petition which declared that Defendant No. 1 was the full owner of the property by right of his purchase at a revenue sale, undoubtedly related to the suit and was in fact one of the issues directly involved in it. Mr. Chakravarty argues that the clauses coming after that, viz., that the Defendant No. 1 would execute a lease in respect of the same property in favour of the Plaintiff No. 1 or his father, was something totally extraneous to the suit and could not be brought within its scope. It is true that this matter was not covered by any of the issues in the suit, but if it was a consideration for matters in the suit and constituted a necessary and integral part of the adjustment of the claim therein, it could very well be said to relate to the suit. [Gobinda Chandra v. Dwarka Nath (1) and Saudammi v. Behary Lal (2)]. To determine this point it is necessary to look at the facts as a whole. The compromise here did relate to the very property which was the subject-matter of the suit. The Plaintiff acknowledged the full title of Defendant No. 1 in respect of the said property, but the acknowledgment was conditional on the Defendant No. 1's executing a deed of lease in favour of the Plaintiff in respect of the same. The execution of the deed of lease was therefore the consideration for and a condition attached to the declaration of Defendant's right. It became in my opinion an integral part of the adjustment of the claim in suit and as such came within its scope. I think therefore that the view taken by the Court of Appeal below is the correct one and the appeal must fail. Had this suit been instituted within three years from the date of the decree, the application could certainly have been treated as a suit under sec. 47, but as this was not done, we have no other alternative but to dismiss the suit.
The appeal is dismissed; No order as to costs.
Latifur Rahman, J.:— I agree.
C.C