1. This appeal is on behalf of the plaintiffs and arises out of a suit which has been pending since the year 1922. The plaintiffs are the owners of a taraf known as taraf Azim Mukim and the defendants are the owners of another taraf named taraf Mahamed Bafi Khansama. Both these tarafs have lands in mouza Fatika in which there is a hat known as the Hazari Hat. The lands of the two tarafs are intermixed at this place so that the Hazari Hat is held on portions of land which appertain to taraf Azim Mukim and on portions which appertain to the other taraf Mahamed Bafi Khansama. There were disputes between the owners of the aforesaid two tarafs which were settled by an agreement executed on 12th Poush 1236 M.B. corresponding to a date in the year 1874. This is a very important document in the case and has been marked as Ex. 3. Even after this agreement, the terms of which we will hereafter examine in detail, disputes between the parties with regard to the realizations from the hat did not end, for in 1890, the parties fell out and again in 1894. It is not necessary for us in this appeal to consider the nature of the disputes between the parties in 1890 and 1894.
2. The parties again fell out in the year 1917 and in that year proceedings under Section 145, Criminal P.C., were started and on 18th April 1917, 41 plots out of 42 plots which constituted the hat were attached by the Magistrate under the provisions of Section 146, Criminal P. C, and the said attachment is still in force. The profits of the hat derived from the plots so attached are being realized by the Collector and they are in deposit with him. On 9th January 1922 the plaintiffs filed the suit. In the suit as originally filed the subject-matter was only 40 plots. The plaintiffs prayed for a declaration of their title to some of these 40 plots which they described in Schedule (1) to their plaint, as appertaining to their taraf Azim Mukim. They also prayed for a declaration that these plots should be released from attachment made by the Collector. They further prayed for an injunction to restrain the defendants from interfering with their possession in respect of these plots. The third prayer in the plaint is a prayer which is material for us in this appeal. Therein the plaintiffs prayed for a declaration that they were entitled to half of the moneys which were then lying with the Collector and which would in future be realized by the Collector from the hat till the attachment was withdrawn. In this plaint the plaintiffs did not include another plot which was attached by the Collector, that is plot No. 2 of the Chitta of the Maghi Survey. They did not include also another plot which had not been attached by the Collector but which was included in the hat, namely plot No. 1 of the said Chitta and of which plot the plaintiffs were in possession. The defendants had not at any time challenged the plaintiffs' title to taraf Azim Mukim and they have never disputed that the plots claimed by the plaintiffs as appertaining to the said taraf did not really belong to them. The dispute between the parties was with regard to the plaintiffs' claim to the money which was actually lying with the Collector or which would come to his hands during the time the attachment would be there.
3. The Court of first instance granted the plaintiffs a decree for eight annas share of the same, overruling the defence that that claim could not be maintained unless and until the plaintiffs include in their suit all the plots of the hat, namely plot No. 1 of the Maghi Survey Chitta of which they were in possession and also plot No. 2 of the said Chitta which had in fact been attached by the Collector but which had not been included in the original plaint. On appeal, the lower Appellate Court took the view that by reason of the aforesaid defects raised in the defence of the contesting defendants the suit was not maintainable. Against the decree so passed by the lower Appellate Court, the plaintiffs preferred an appeal to this Court, being appeal from Appellate Decree No. 565 of 1926. A Division Bench of this Court allowed the appeal being of opinion that the suit ought not to have been dismissed on the aforesaid defects but that the plaintiffs should be allowed an opportunity to amend the plaint by including in their suit the said two plots so left out by them. The case was accordingly remanded to the Court of first instance in order that the plaintiffs might amend their plaint. On an amendment of the plaint being made, this Court directed a de novo trial. After the records arrived in the Court of first instance, the plaintiffs amended their plaint by including therein both these plots, namely plots Nos. 1 and 2 of the Maghi Survey Chitta. In the amended plaint they also stated that they were entitled to a moiety share of the moneys lying with the Collector or which may thereafter come into the hands of the Collector, on the basis of the aforesaid agreement, Ex. 3.
4. The defendants raised the following defences which are not relevant: (1) that the agreement, Ex. 3.is not a binding agreement inasmuch as some of the then owners of taraf Mahamed Ran Khansama had not joined. The persons who did not join, according to the defence, were Maniram, Bajballav and Fakir whose names appear in the genealogical tree printed at p. 20 of the paper book; (2) that if the plaintiffs were to proceed upon the agreement, Ex. 3 they cannot get any relief unless they bring into aocount the profits which they have received and are receiving since the date of the Collector's attachment from plot No. 1 of the Maghi Survey Chitta; (3) that inasmuch as 24 kanis of land appertaining to the plaintiffs' taraf Azim Mukim had been acquired by the Government out of plot No. 1 of the Maghi Survey Chitta before 1917, a portion which is a part of the hat, the plaintiffs are not entitled to rely upon the terms of Ex. 3 and claim on the basis thereof a half-share of the aforesaid moneys.
5. The last mentioned defence however had taken different, shapes at different times. We have stated above the nature of the defence as it appears in the written statement, but when the matter was argued before the trial Court after remand, the defendants seem to have taken the position that they were entitled to claim a half-share of the compensation money awarded by the Collector for the acquisition of the said 21/2 kanis and that was the position which they originally intended to maintain before the lower Appellate Court in which they were the appellants. But at the time of the argument of the appeal before the lower Appellate Court; the defendants gave up their claim to a share of the compensation money and took up the position that by the reason of the said compulsory acquisition, the plaintiffs were not entitled to claim a moiety share in the moneys claimed by them but to a lesser share to be determined in proportion to the areas of the respective tarafs which were still left in the hat after the compulsory acquisition. The lower Appellate Court has given effect to that contention of the defendants, and in this appeal we are mainly concerned with the point as to whether the lower Appellate Court was right in doing what it has done.
6. Apart from the question which has been raised by the respondents' learned advocate with regard to the validity of the agreement, no other question of a substantial nature has been raised before us. The appellants however pointed out to us that the ordering portion of the learned Judge's judgment is defective and those defects ought to be removed. The learned advocate for the respondents concurs in the prayer made to us by the learned advocate for the appellants in this respect. In any event therefore, whether the appeal succeeds or not, the ordering portion of the judgment will have to be made more definite.
7. The learned District Judge held that the plaintiffs must account for the profits in respect of plot No. 1 of the Maghi Survey Chitta; but he has not given clear directions in his judgment as to the period for which the accounting is to be made. Both the learned advocates are agreed that the account must be from the date of the attachment, namely 18th April 1917 till the other 41 plots of land are released by the Collector. With regard to plot No. 2 of Schedule (2) he has not directed any separate accounting ; and at one stage of the appeal before us it was contended by Mr. Sen appearing on behalf of the appellants that that plot being in the possession of the defendants should also enter into accounts. But on an examination of the record we find that that is one of the plots which had been attached by the Collector and therefore the rents and profits realized in respect of that plot are included in the sum of money which is in the hands of the Collector and the sum of money which the Collector will realize till the attachment is levied. We do not consider that there is any defect either in the judgment or in the ordering portion of the judgment in this respect. One point must be made clear however, that in taking the accounts in respect of plot No. 1 of the Maghi Survey Chitta, the liability to render accounts is on the plaintiffs, because admittedly the plaintiffs are in possession of that plot which has not been attached by the Collector; and in taking these accounts the question as to whether the plaintiffs have at their own cost improved the lands, will have also to be taken into consideration; if any improvements have been made at their costs by reason of which the profits therefrom have been enhanced, the plaintiffs will be entitled to get credit for the amount so spent by them in its improvements.
8. The learned District Judge has however held that inasmuch as 21/2 kanis out of the plaintiffs' taraf Azim Mukim has been withdrawn from the hat by reason of the land acquisition proceedings, the plaintiffs would be entitled to have a declaration that they are entitled not to a half-share but to 2/5ths share of the profits of the hat. This share has been determined on the basis of the areas of the respective tarafs which are still in the hat after the acquisition of 21/2 kanis of land as aforesaid. Against this decree, the plaintiffs have preferred this appeal; but there is no appeal or memorandum of cross-objection preferred by the defendants-respondents. The foundation on which the judgment of the learned District Judge rests is the agreement of the year 1874, namely Ex. 3. He recorded a finding in the following manner: that that agreement was not executed by some of the owners of taraf Mahomed Rafi Khansama, namely Raj Chandra, defendant 1, Maniram, Rajballav and Fakir. With regard to defendant 1 Raj Chandra, he recorded a finding that he had accepted the agreement later on. After recording the aforesaid finding he remarked that the evidence was not very satisfactory on the point as to whether the defendants-appellants' predecessors-in-interest who had not executed the agreement had accepted it later on, but the onus was on the said defendants-appellants to prove that they had not subsequently accepted the agreement and that onus has not been satisfactorily discharged. Then he stated that the admission of defendant 1 that he was bound by the agreement, though he is not a signatory was a relevant fact and that it would not be an unreasonable inference from that fact to say that all the owners of taraf Rafi Khansama including those who are not signatories to it had accepted the same.
9. Mr. Das who appears for the respondents challenges this finding. He says that the onus has been misplaced and the finding therefore is a finding which is open for revision in second appeal. If it had been open to Mr. Das to argue this point, it would have carried great force; but there is a legal bar in his way. As we have stated before, he has not "filed any appeal or memorandum of cross-objection against the decree. As a respondent he can support the decree as made without filing any cross, objection by challenging even the findings or some of the findings recorded against him by the lower Appellate Court. But in our judgment he cannot urge a point which if accepted would totally or in part destroy the decree made in favour of the appellants. If this finding is reversed, the plaintiffs' claim to the money for which they have got a part decree will have to be discharged. Feeling this difficulty, Mr. Das invokes the provisions of Order 41, Rule 33, Civil P.C., and says that we have power to make any order which ought to have been made in the lower Court, even if his clients have not preferred any appeal or filed a memorandum of cross-objection and so it is open to him to challenge this finding and so destroy in effect the foundation on which the part decree as made by the learned District Judge rests. In our judgment, Rule 38' Order 41 of the Code, though couched in very broad language, does not contemplate a case of this description. That rule gives to the Appellate Court power to pass any decree and make any order which ought to have been passed or made, etc. This rule contemplates modification of the decree by the Appellate Court at the instance of the appellant. It has no scope where the respondents in effect want to maintain the decree of the lower Court or where the decree under appeal is not modified in appeal. Mr. Das made his position clear. He says that he wanted to maintain the decree of the lower Court and did not want it to be disturbed ; but still he wanted to attack the finding on which the decree of the lower Appellate Court in respect of the money claim entirely rests.
10. The scope of Order 41, Rule 33, Civil P.C., has been considered in many cases by this Court. Sir Lawrence Jenkins C. J. pointed out in Gangadhar Muradi v. Banabashi Padihari (1914) 1 A.I.R. Cal. 722 that the power contained in that rule should be limited to those cases where asa result of the Appellate Court's interference with the decree in favour of the appellant, further interference is required in order to adjust the rights of the parties in accordance with justice, equity and good conscience. We hold accordingly that it is not open to the respondents, in view of the fact that they have not preferred any memorandum of cross-objections or any appeal, to attack the finding of the learned District Judge that the agreement Ex. 3 is binding on the parties to this suit. This leads us to the only substantial question raised in the appeal by the appellants, namely whether the share of the plaintiffs in the profits of the hat is to be since 18th April 1917 half or 2/5ths. This depends solely upon the construction of the agreement, Ex. 3 and so the lower Appellate Court was justified in allowing the defendants to raise the question of shares for the first time before it. The document, according to the well-known principles of construction must be construed as a whole and it is not legitimate to pick out one or two paragraphs and rely upon them only and to discard the rest of the document. The intention of the parties must be gathered from the whole of the document.
11. In the first portion of the document it is recited that there is an old hat named the Hazari Hat in existence for more than 100 years within Mauza Patika on 1 drone, 9 kanis, 3 gandas and 1 kara of land which consists of 12 kanis and 11 gandas of land which appertain to taraf Mahomed Rafi Khansama and which has been described in Schedule (1) of that document, and of 12 kanis, 12 gandas, 1 kara of land which appertain to taraf Azim Mukim and which lands have been described in detail in schedule (2) attached to the document. The document further proceeds to say that the lands of two tarafs are so mixed up that in front of the stall raised on the land of one taraf there are lands of the other taraf and by reason of that fact various disputes and litigations have been going on between the parties in respect of realization of the profits. From the recital it appears that almost equal areas of land appertaining to the two tarafs, Mahomed Rafi Khansama and Azim Mukim were included in the hat. Clauses (2) and (4) of the document are of importance. Clause (2) runs as follows:
In reference to all the lands of all the plots (meaning all the plots included in schedules 1 and 2 of said document) without taking into consideration the ownership of the dag in which any land is situated in the aforesaid hat whether it appertains to your (the owners of taraf Azim Mukim) maliki or mino (the owners of taraf Mahomed Ban Khansama) out of all sorts of dues such as rent, etc. which are payable in respect of all the shops situated in the hat you (the owners of taraf Azim Mukim) shall take and receive 8 annas of the entire 16 annas and we Brindaban Ohoudhury and Jugal Kishore Choudhury and Padmaloohan Choudhury shall get and take the remaining 8 annas share.
12. Clause (4) provides for equal division o£ the selami or fees that would be realized on account of the shops or temporary stalls, etc. There is no provision in this document as to what is to happen if some of the, lands which were then known as the hat lands had been acquired either under land acquisition proceedings or were not available for the purpose of the hat. The parties to the document failed to make specific provisions with regard to the same. In our judgment, the preamble to the document furnishes the indication as to why the shares in the profits were divided half and half. It is because the lands of the two tarafs which were in the hat were almost of equal area, the difference in areas being about a ganda, that is to say the lands of taraf Mahomed Ban Khansama in the hat were less than the lands in the other taraf in the hat by a fraction of 1/300. Clauses (2) and (4) of the agreement clearly indicate that the profits are to be divided equally between the owners of the two tarafs irrespective of the question as to where the shops or stalls were; if most of the shops or stalls were on the land of Schedule (2) of the document and few of them were on Schedule (1) and the rest of Schedule (1) were vacant, still that would entitle the owners of the lands of Schedule (1) to claim half of the rents and profits and half of the selami. The division therefore into half and half was to be irrespective of the amount of profits actually realized from the different parcels of land included in the hat.
13. As we have already stated the intention of the parties is quite clear as to why their shares were fixed in that proportion. It is because the lands of each of the tarafs within the hat were equal; inasmuch as 2h kanis of land appertaining to taraf Azim Mukim has gone out of the hat, according to the governing intention as can be gathered from the document which we have noticed above the parties can only have shares in proportion to the areas of land left in the hat. This construction which we have put upon the document accords with the justice of the case, for, it would be unreasonable to hold that the plaintiffs would be entitled to the whole of the compensation money awarded in respect of 21/2 kanis of land acquired and would still be entitled to claim half share of the profits accruing from the entire hat after the acquisition. We accordingly hold that the shares of the plaintiffs and the defendants in the profits of the hat ought to be in proportion of the respective areas of the two tarafs, the plaintiffs' taraf and the defendants' taraf, which are in the hat after acquisition. We accordingly affirm the judgment of the lower Appellate Court that the plaintiffs are entitled to only 2/5ths share and the defendants to the remaining 3/5ths share in the profits of the hat and a declaration to that effect must be made.
14. The result therefore is that the appeal fails and must be dismissed. But as we have already stated the order must be made more specific. The decree therefore would be in these terms: The plaintiffs' title is declared to those lands of the Hazari Hat as are covered by the M.S. and C.S. plots in schedule as have been found by the Commissioner. It is further declared that the plaintiffs have their alleged right to enjoy all the rights in the hat as have been conferred on them by the sammatinama, Ex. 3, in respect of the lands of schedule Ka to Cha subject to the modification that they would be entitled to 2/5ths share instead of half share, that the plaintiffs may get the attachment order passed under Section 146, Criminal P.C., vacated on producing a copy of the judgment and decree; that the plain, tiffs must render accounts of the rents and profits in respect of plot No. 1 of the Maghi Survey Chitta from 18th April 1917 till the attachment by the Collector is withdrawn. In taking the accounts, the question as to whether the plaintiffs have made any improvements and what costs they had incurred for the same, must be taken into account.
15. After the said amount is ascertained, the plaintiffs' share in the same should be taken to be 2/5ths and the defendants' 3/5ths, and on the basis thereof, the amount which the plaintiffs have taken in excess of their said share from out of the profits of plot No. 1 of the Maghi Survey Chitta must be ascertained; and deducting the said excess amount which the plaintiffs have appropriated from the 2/5ths of the money that may be in the hands of the Collector, the balance would be the amount to which the plaintiffs would be entitled. Subject to the above modifications and directions the appeal is dismissed. Bach party will bear his own costs in this appeal.