NIRBHERAM FATTE KURMI Vs. SUKHDEO KISUN KURMI

JUDGEMENT

(1.) THIS is an appeal filed by the defendant to set aside the decree, dated 17th December 1941, passed by the Court of the District Judge, Raipur, in Civil Appeal No. 36B of 1941, affirming the decree passed by the Court of the Subordinate Judge, second class, Drug, on 23rd December 1940, which had passed a decree for Rs. 135-13-8 in favour of the plaintiffs and against the defendant. The suit out of which this appeal arises was one for recovery of a one-third share of Rs. 407-9-0, which was due on account of the arrears of rent for the years 1934-1935 and 1935-1936. The plaintiffs and the defendant were cosharers of mauza Anda, tahsil and district Drug. Originally it had two pattis. In patti No. 2, the plaintiffs had a one-third share. This patti No. 2 was further sub-divided into four pattis. Patti No. 2 was allotted to the share of the defendant, patti No. 3 to the plaintiffs, patti No. 4 to Mt. Gayabai and patti No. 5 to Girdharilal. The partition came into force from 1st June 1936. The present plaintiffs filed Civil Suit No.142B of 1936 on 21st September 1936 for recovery of Rs. 818-9-10 on account of their share of village profits for the years 1933-34 to 1935-1936. The defendant was the lambardar of patti No. 2. The position was that the rents for 1934-1935 and 1935-1936 had not been recovered from all the tenants of patti No. 2 and a sum of Rs. 407-9-0 was outstanding. Rupees 141-10-0 were due from the tenants of patti No. 2; RS. 32-15-0 from the tenants of patti No. 4 and Rs. 238 from the tenants of patti No. 5. It was agreed between the parties that the defendant will be liable to the plaintiffs for the one-third of the amount when realised or if it is allowed by him to be barred by limitation. In accordance with the compromise between the parties Civil Suit No. 142B of 1936 was decided and a decree for Rs. 282-11-3 was passed against the defendant. It was recorded in the judgment: By consent of parties, the plaintiff is allowed to reserve the right of bringing a separate suit for recovery of his one-third share of the arrears of rents amounting to Rs. 407-9-0 for 1934-35 and 1935-36, when they are realised by defendant or become time-barred.

(2.) THE plaintiffs filed the present suit to recover Rs. 135-13-8 on account of the one-third share of Rs. 407-9-0. The Court of the Subordinate Judge, Drug, passed a decree for the amount in his favour. This decree was affirmed by the Court of the District Judge, Raipur. The defendant has filed this second appeal to set aside the decree. The learned Counsel for the appellant has attacked the decree on three grounds; viz., (1) that the order, dated 11th September 1937 permitting the plaintiffs to withdraw the claim of Rs. 407-9-0 from the previous suit (civil Suit No. 142B of 1936) with permission of the Court to institute a fresh suit was not within the scope of Order 23, Rule 1, Civil P.C., and that as such the order is a nullity and the plaintiffs are precluded from claiming that amount in this suit; (2) that the agreement arrived at between the parties on 11th September 1937 was without consideration; and (3) that the agreement is not enforceable Under Section 56, Contract Act.

(3.) THIS comes within the definition of consideration and the agreement cannot be said to be without consideration. After there was a partition of patti No. 2 into sub-pattis the defendant entered into a contract on 11th September 1937 and made himself responsible for the realisation of rents for 1934-35 and 1935-36 due from the tenants of original patti No. 2, even though they had fallen to the share of other pattidars. He might have entered into an arrangement with the proprietors of the several pattis to enable him to realise the amount. If he failed to do that he is himself responsible for the position in which he finds himself now. The agreement cannot be avoided on the ground urged by the defendant. Section 56, Contract Act, has no application. The appeal fails and is dismissed with costs.