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2. Defendants Nos. 1 to 3 instituted a suit being money Suit No. 1 of 1929 (hereafter called the Money Suit) against defendants Nos. 4 to 6 for recovery of rent or profits from them of the lands described in Dag No. 2213. To this suit the plaintiffs and pro forma defendant No. 7 have been impleaded as pro forma defendants Nos. 5 to 7. No relief has been claimed against them.

3. It appears that the plaintiffs and pro forma defendant No. 7 held a howla named Howla Jiban Krishna Shaha which include Dag No. 2213. The said Dag was formerly held under them by some boatman on a service tenure. The boatmen sold the plot to one Brojobashi Shaha, the father of defendants Nos. 1 and 2 and grandfather of defendant No. 3. Defendants Nos. 4 to 6 had been subtenants under the boatmen.

4. After the purchase by Brojobashi Shaha the plaintiffs and pro forma defendant No. 7 sued defendant Nos. 1 and 2 and the father of defendant No. 3 in 1920 for khas possession and got a decree. Thereafter they realised rent directly for some time from defendants Nos. 4 to 6. In the year 1923 defendants Nos. 1 and 2 and the father of defendant No. 3 sued the plaintiffs and pro forma defendant No. 7 for specific performance of an alleged contract. This suit was numbered 506 of 1923 to which defendants Nos. 4 to 6 were also parties. The contract set up and in respect of which specific performance was sought was one by which the plaintiffs and pro forma defendant No. 7 is said to have promised a nim howla interest to defendants Nos. 1 to 3 in respect of Dag No. 2213. The plaintiffs and pro forma defendant No. 7 entered appearance separately, one vakalatnama having been executed jointly by plaintiff No. 2 and pro forma defendant No. 7 (Ex. Q) and another by plaintiff No. 1 [Ex. Q (1)]. These vakalatnamas were accepted by a pleader. Mr. K. Sen, but the case was conducted by another Pleader Mr. Monmohan Shaba whose name appeared in the body of the vakalatnamas but who did not accept them in writing and probably he was assisted by Mr. K. Sen. The vakalatnamas authorised the Pleaders to sign compromise petitions on behalf of the clients and to file them in Court. April 20, 1925, was fixed for hearing. On that date an application for a long adjournment was prayed for but the Court refused it and fixed April 21, 1925, for the hearing. On that date a petition of compromise was filed by which defendants Nos. 1 to 3 were recognised as tenants in Kayem Karsha right, and the other terms of the tenancy defined. This petition was signed by defendants Nos. 1 to 3, by plaintiff No. 2 and pro forma defendant No. 7. It was also signed and filed by Mr. Monmohan Shaha on behalf of plaintiff No. 1 plaintiff No. 2 and pro forma defendant No. 7. It has been found that plaintiff No. 2 and pro forma defendant No. 7 were actually present in Court, but plaintiff No. 1 was away at some place in the District of Bakarganj and was not consulted about the terms and was totally ignorant about the solenamah, till he learnt about it a few days after, when a decree had already been passed on the basis of the same. It has also been found that pro forma defendant No. 7 who looked after the case on behalf of plaintiff No. 1 had no authority from him to compromise the suit and that plaintiff No, 1 did not ratify the compromise. These are findings of fact binding on me in second appeal. It has also been found that plaintiff No. 1 came to know of the compromise decree beyond three years of the suit and this finding has not been challenged, nor could it be, by the appellant. On April 27, April 1929, the plaintiffs filed the suit out of which this appeal arises. They stated that pro forma defendant No. 7 was won over by defendants Nos. 1 to 3 by fraudulent ways and means and the solenamah was filed on collusion with him. The plaint also states that neither pro forma defendant No. 7 nor Mr. Monmohan Shaha had any authority to enter into a compromise on behalf of the plaintiffs. The learned Munsif found that that pro forma defendant No. 7 had authority from the plaintiff No. 1 to enter into the compromise, that he, plaintiff No. 1, came to know of the consent decree beyond three years of the suit, that plaintiff No. 2 was himself present in Court and signed the solenamah. He held that the solenamah was binding on the plaintiffs and the suit, moreover, was barred by limitation. The money suit was tried along with the title suit, inasmuch as defendants Nos. 1 to 3 claimed relief against defendants Nos. 4 to 6 on the basis of a title acquired by them on the basis of the aforesaid consent decree. The money suit was decreed against defendants Nos. 4 to 6. Two appeals were preferred before the Subordinate Judge; one by the plaintiffs (Title Appeal No. 252 of 1930) and the other by defendants Nos. 4 to 6 (Money Appeal No. 253 of 1930). The two appeals were heard together and both of them dismissed by the Subordinate Judge.

5. The Subordinate Judge held that fraud or collusion in respect or the compromise had not been established and the Pleader Monmohan Babu or pro forma defendant No. 7 had no authority to compromise on behalf of plaintiff No. 1, and the plaintiff No. 1 had not ratified the compromise. He held, however, that as the plaintiff No. 1 had known of the compromise decree at least in June 1925 (that is beyond three years of the suit) the suit was barred under Article 91 or Article 95 of the Limitation Act. He also held that the case of fraud having failed the suit was not maintainable. The findings of the trial Court relating to plaintiff No. 2 was affirmed. The Money Appeal was also dismissed as the compromise decree was not set aside. It is admitted that plaintiff No. 1 has 4 annas share, plaintiff No. 2, 8 annas share and pro forma defendant No. 7, 4 annas share in the Howla Jiban Krishna Shaha.

17. On the facts of this case I cannot, however, give effect to the plea of res judicata. No relief was claimed in the money suit against the plaintiffs. They were not necessary parties at all to that suit and although it may have been thought desirable to have them as parties defendants their position was that of pro forma defendants only. In these circumstances the findings in the money suit cannot conclude the plaintiffs Braja Behari Mitter v. Kedar Nath Mazumdar 12 C 580. I accordingly overrule the plea of res judicata.