JUDGMENT T.S. Misra, J.
1. The plaintiff-respondent filed a suit for a permanent injunction restraining the defendants from demanding or realising the balance of the contract money as arrears of land revenue or in any manner whatsoever,
2. The facts relevant to this appeal are as follows:
On 28th March, 1966 the right to lift and take out sand from the bed of river Jamuna in village Jakhan Tahsil and District Etawah was auctioned by the Tehsildar, Etawah, defendant No. 2, on behalf of Gaon Sabha Jakhan, defendant No. 1. The terms of the auction sale were that the Theka would be given to the bidder whose bid was accepted by the S. D. O. Etawah. defendant No. 3 and such bidder would have to execute an agreement in favour of defendant No. 1. The plaintiff made the highest bid of Rs. 16,000/- and deposited one-fourth amount thereof in Tehsil Etawah in favour of defendant No. 1. The acceptance of the bid was not communicated to the plaintiff whereupon he sent a letter dated 14th May, 1966 in that connection and when despite repeated reminders no reply was received, the plaintiff revoked the offer by letter dated 24th May, 1966. However, the plaintiff was asked by the Tehsildar to appear before him and in compliance thereof the plaintiff appeared before the Tehsildar who threatened him that he would send the plaintiff to jail if he did not deposit Rs. 12,000/- and did not execute the agreement It is maintained that under such coercion and threat the plaintiff executed the agreement, on 30th June, 1966 and deposited a sum.of Rupees 4,000/- on 1st July, 1966. It is further contended that the plaintiff was assured by defendant No. 2 on behalf of defendant No. 1 Gaon Sabha that he would be given free passage to gc to the plot in question and to lift the sand without any obstruction. But in spite of repeated requests both oral and written no free passage was provided to the plaintiff and the passage through plot No. 1956 was completely blocked by Hari Singh, Batti Lal and other persons of village Kiratpura. The plaintiff could not, therefore, lift sand from the bed of river Jamuna. Hence it was contended that the agreement was not enforceable and the plaintiff was entitled to the refund of Rs. 8,000/-. Since the defendants threatened to realise the amount by coercive measure, the plaintiff filed a suit after giving notice under Section 80 C.P.C. and Section 106, Panchayat Raj Act. The suit was contested and the allegation that any coercion or undue influence was exercised by the Tehsildar upon the plaintiff was denied. It was also pleaded that the Gaon Sabha was entitled to realise the amount.
3. The trial court held that the land in dispute did not belong to the Gaon Sabha but belonged to the State of U.P. Hence the Gaon Sabha was not entitled to put the right of excavating the sand from the plot in question to auction. Hence the trial court decreed the suit for permanent injunction restraining the defendants 1 and 5, Gaon Sabha and the State of U.P., from realising the sum of Rs. 8,000/- with respect to the auction in dispute from the plaintiff. The suit against defendants Nos. 2 to 4 was dismissed. Aggrieved thereby, the Gaon Sabha and the State of U.P. filed an appeal before the District Judge. The plaintiff also filed a cross-objection. Both the appeal and the cross-objection were heard together and by a common judgment both were dismissed. The Gaon Sabha has now filed the instant second appeal impleading the State of U.P. as one of the respondents.
4. It was urged on behalf of the appellant that the trial court had erred in granting permanent injunction restraining the Gaon Sabha as also the State of U.P. from realising a sum of Rupees 8,000/- from the plaintiff. The submission was that the plaintiff had filed the suit praying that the said sum of Rupees 8,000/- be not realised from him as arrears of land revenue. He had also prayed that the said sum of Rs. 8,000/-be not realised in any other manner whatsoever. While dealing with issues Nos. 6 and 11, the trial court had observed that it was admitted that the plaintiff lifted the sand under the contract, but it was disputed as to how much sand the plaintiff had lifted. Further it was observed by the trial court that it is only the State of U.P. which can claim such compensation from the plaintiff for lifting the sand and, therefore, the question of determination as to how much sand and at what rate was lifted by the purchasers from the contractor would arise only when a suit is filed by the State against the plaintiff claiming compensation for lifting the sand. It was urged before the trial court on behalf of the State that in any case the plaintiff is liable to pay compensation to the State of U.P. for the sand lifted by him and therefore the injunction could not be granted. The trial court did not accept this argument and held that the amount in suit is being realised as arrears of Theka money payable to the Gaon Sabha and the State cannot realise compensation unless the amounts determined by a competent court of law.
In my view, the trial court erred in not noticing certain facts which were admitted by the plaintiff in his plaint. The Tahsildar had put the right to lift sand to auction on behalf of the Gaon Sabha. It was also said that the plaintiff had entered into an agreement with the Gaon Sabha and that he had deposited a sum of Rs. 4,000/- at the time when the auction bid was accepted and another sum of Rs. 4,000/- at a later stage in the Government treasury for the benefit of Gaon Sabha under the contract. So the plaintiff was obviously permitted to excavate sand from the land in dispute by the Gaon Sabha. Section 65 of the Indian Contract Act says that when an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it. In the case in hand, the agreement was discovered to be void. That being the position, if the plaintiff had excavated any sand, he was bound to restore that sand or to make compensation for the same to the person from whom he received it, i.e., to the Gaon Sabha, What quantity of sand the plaintiff had excavated and what was the value thereof were not admitted by the plaintiff, but this much was certainly admitted by the plaintiff that he had excavated some quantity of sand from the said land. The plaintiff is, therefore, bound to make compensation for it. I have already pointed out herein above that the plaintiff had already deposited a total sum of Rs. 8,000/-against the agreement which was discovered to be void. Whether that amount would be sufficient to meet the compensation which the plaintiff is liable to pay for the sand excavated by him is a question which cannot be decided in this case. It will be a question for determination in a suit which may be filed by the Gaon Sabha for recovery of the compensation from the plaintiff. 5. No doubt, the amount of compensation cannot be recovered by the Gaon Sabha as arrears of land revenue. If the Gaon Sabha feels that any amount of compensation is payable to it and is not satisfied by the amount of Rs. 8,000/-already deposited with it, it is open to it to file a suit against the plaintiff for recovery of the same. The trial court, however, erred in issuing a permanent injunction restraining both the Gaon Sabha and the State of U.P. from realising a sum of Rs. 8,000/- being the balance amount of the Theka money with respect to the auction in question. This injunction was given in very wide terms. The Gaon Sabha could not obviously be restrained from realising the amount of compensation. Of course, an injunction could be granted restraining the Gaon Sabha from realising any amount of compensation as arrears of land revenue. The appeal has, therefore, to be partly allowed.
6. In the result, the appeal is partly allowed. The decree passed by the trial court and affirmed by the appellate court below is modified. The defendants 1 and 5 are restrained from realising the sum of Rs. 8,000/- from the plaintiff as arrears of land revenue. It is, however, made clear that it shall be open to defendants 1 and 5 to file a suit for recovery of any compensation for the sand which the plaintiff has excavated from the plot in dispute after making adjustment of Rs. 8,000/- which the plaintiff, has already deposited. The suit is partly decreed in these terms. In the circumstances of the case, parties shall bear their own costs.