Decided on August 12,1954

PRABHU Respondents


- (1.) This appeal is brought by the defendants, Ram Parshad and others, against a preliminary decree which was passed by the trial Court and which was conformed by the District Judge, Hoshiarpur.
(2.) The case relates to the recovery of Rs. 1,806 on account of rent for six years at the rate of Rs. 301 per annum and for accounts. On the 12th of August 1889 there was a lease by the zamindars of Dharamsala in favour of Mohan Lal, the predecessor-in-interst of the defendants 1 to 6, of 36 kanals 10 marlas. The defendants contend that the lease was a perpetual lease by all the zamindars and the whole shamilat of the village and by this case they were given rights to quarry slates in any portion of the shamilat area. This is contested by the plaintiffs who allege that the lease was only of 36 kanals 10 marlas and it was given in the following circumstances : On the 2nd of August, 1919 one Hodi and others on behalf of themselves and the other proprietors of the village filed a suit under Order 1, rule 8, Civil Procedure Code against the sons of Mohan Lal and Ganpat for ejectment from 33 kanals 3 marlas which was compromised on the 20th December, 1921 and the terms of the compromise were - (1) that the defendant Nos. 1 and 2, that is the sons of Mohan Lal will remain perpetual lease holders of 36 kanals 10 marlas as before. (2) besides this the defendant Nos. 1 and 2 were allowed to exploit any slate quarry in the rest of the areas which were in possession of the defendants or of which they may take possession in future and this was to last for the period of the settlement. The tenants were to pay Rs. 116 for 36 kanals 10 marlas and Rs. 185 for the rest.
(3.) On the 21st March, 1950 Prabhu and five others brought a representative suit under Order 1, rule 8 of the Code of Civil Procedure for the recovery of Rs. 1,806 being the rent for six years and for accounts as co-sharers. This suit was originally brought in the Court of the Revenue Assistant Collector 1st Grade, but the plaint was returned for presentation to a Civil Court. The plaintiffs allege that they and defendant Nos. 7 to 1307 are proprietors of Tika Chak Ban and defendant Nos. 1 to 6 are co-sharers who had taken on lease 36 kanals 10 marlas on payment of Rs. 301 for slate quarrying, that defendants 1 to 6 without the consent of their co-share had for more than seven years been quarrying slate stone out of an area of 317 kanals 9 marlas and the plaintiffs and defendant Nos. 7 to 1307 are entitled to accounts from defendants 1 to 6. The defence was that the defendants had taken the land on lease for slate quarrying since long, that in the year 1919 a suit was brought which was compromised and they referred to the terms of the compromise, which they were making in pursuance of the compromise and then they pleaded that the suit was incompetent and had been brought merely to harass the defendants. Thereupon the following four issues were framed :- 1. What bearing has the previous litigation on the present suit ? 2. Are the plaintiffs entitled to claim rendition of accounts for 317 kanals 9 marlas of land under quarries ? 3. If issue No. 1 be found against the plaintiffs then what payments, appropriations and disbursement have been made by the defendants ?;

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