9911796707
TMI Blog1938 (12) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 attachmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Mahomed Rafi 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 account the profits which they have received and are receiving since the date of the Collector's attachment from pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 liabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 effe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
