Judgment 1. Defendant - 2nd party has moved this Court in appeal against the judgment and decree of the Court of 2nd Additional District Judge of Saran at Chapra affirming the judgment and decree of the 2nd Additional Subordinate Judge, Chapra, dismissing a suit for declaration of title over the suit land described in Schedule 2 to the plaint 2. Plaintiff filed a suit for declaration of title being Title Suit No. 61/5 of 62-65 over 3 Bighas 15 Kathas and 15 Dhurs of Kast lands as described in Schedule 2 of the plaint in village Kabirpur Tola Imrauli P.S. Majrwa in the district of Saran mow district of Siwan). Schedule 2 lands are part of the lands given under Schedule 1 to the plaintiff. There was a Title Suit No. 14/59 by the plaintiff against the defendants 1 to 7 (hereinafter to be referred as defendant-1st party) in respect of Schedule 1 lands. This suit was decreed on 28-9-1960. Defendant 1st party preferred First Appeal No. 303/60 in this Court. The plaintiff in the meanwhile started Execution Case No. 20 of 1960 and obtained delivery of possession over the entire Schedule 1 lands on 26-1-1961. Defendant-1st party, however, created some obstruction giving rise to criminal cases including one in which the plaintiffs husband and brother were made accused for the offences under Ss. 325, 324, 447, 148 and 147 of the IPC. Defendant 2 acting on behalf of all the defendants-1st party, taking advantage of the situation that the plaintiffs husband and brother were accused for committing offences, proposed to the plaintiff to execute a sale deed with respect to 3 Bighas 15 Kathas and 14 Dhurs of land in favour of defendant-1st party, agreeing in consideration thereof to stifle the prosecution and compromise the criminal case to secure acquittal. The plaintiff being a simple, illiterate and Pardanashin woman and under the fear of the criminal case against her husband and brother consented to the said proposal and accordingly an agreement was arrived at and two sale deeds were executed by the plaintiff on 30-11-1961 for an apparent consideration of Rs.2,000.00 covering together 3 Bighas. 15 Kathas and 14 Dhurs of land out of Schedule 1 as described in Schedule 2. Defendant-1st party, however, allowed the criminal case to proceed, made Pairvis with due earnestness and examined the witnesses. 15 Kathas and 14 Dhurs of land out of Schedule 1 as described in Schedule 2. Defendant-1st party, however, allowed the criminal case to proceed, made Pairvis with due earnestness and examined the witnesses. Realising a fraud had been committed upon her, the plaintiff obtained copies of the sale deeds and when their contents were read over and explained to her, she found that many facts had been stated therein falsely including the statement about the payment of consideration of Rs.400.00 She alleged that she put her thumb impression on account of undue pressure and misrepresentation that the criminal case would be withdrawn and admitted the execution of the two sale deeds before the Sub-Registrar for the purpose of their registration also under undue pressure and false hope of securing the withdrawal of the criminal case and for no other consideration. Contents of the sale deeds were not disclosed to her until after obtaining the certified copies she found, what was stated therein. She asserted that in spite of the execution of the sale deeds she did not part with the possession of the lands (Schedule 2) and alleged that since the sale deeds were executed under influence and coercion and further since they were void in view of the provision of S.23 of the Contract Act, no title over Schedule 2 lands ever demised to the defendants-1st party. Plaintiff further alleged that she could know that defendant-1st party executed separate sale deeds without any consideration with respect to various portions of Schedule 2 lands in favour of defendant 8 to 16 (described as defendants-2nd party). These sale deeds executed by the defendants-1st party in favour of the 2nd party created cloud over her title and hence on 30-8-1962 (during the pendency of criminal case) she filed the instant suit. 3. These sale deeds executed by the defendants-1st party in favour of the 2nd party created cloud over her title and hence on 30-8-1962 (during the pendency of criminal case) she filed the instant suit. 3. Contesting defendants, namely, defendants 9,10,13 and 16 of the defendants-2nd party on the other hand maintained before the learned Subordinate Judge that decree in the Title Suit No. 14 of 1959 notwithstanding, since the plaintiff agreed to sell Schedule 2 properties to the defendant-1st party on the mutually agreed terms and conditions and took advantage of the said agreement in the sense that the appeal against the judgment and decree was not pressed in the Court and witnesses spoiled their evidence in the criminal case against the husband and brother of the plaintiff, she could not question the validity of the sale deeds on the ground that the sale deeds were obtained by fraud or in pursuance of a contract opposed to public policy They also maintained that the defendants-1st party got delivery of possession from the plaintiff after the execution of the sale deeds and after executing in their turn sale deeds in favour of the defendants-2nd party. Put them in possession. Although the suit was dismissed by the learned Subordinate Judge yet their case about possession was not accepted by the trial Court. 4. Learned 2nd Additional Subordinate Judge, Chapra heard the suit and found that the plaintiff executed the sale deeds in question and the Ekrarnama with full knowledge of all their contents, but there was no other kind of undue influence or coercion on her, that the compromise between the parties was void and illegal and the two sale deeds executed by the plaintiff being for consideration of withdrawal of or stifling the criminal case was also void. Learned Subordinate Judge further found that pursuant to the decree in the Title Suit No. 14/59 the plaintiff obtained delivery of possession of Schedule 1 lands from the defendants and continued in possession thereof including Schedule 2 lands in spite of the execution of the two sale deeds and dismissed the suit applying the principle in pari delicto potior est conditio defendantis. 5. Plaintiff preferred appeal which was eventually heard by the 2nd Additional District Judge of Saran at Chapra. Defendants-2nd party also preferred cross-objection. 5. Plaintiff preferred appeal which was eventually heard by the 2nd Additional District Judge of Saran at Chapra. Defendants-2nd party also preferred cross-objection. Learned Additional District Judge held in agreement with the learned Subordinate Judge that the two sale deeds were executed by the plaintiff in favour of defendant-1st party in pursuance of an agreement to stifle the prosecution initiated by the defendants-1st party against her husband and another and, therefore, they were void but dismissed the appeal holding that relief prayed for by her in the suit could not be granted since she had derived full benefit of the said illegal agreement before the filing of the suit and the Court could not come to her aid. Nothing, however, was said about the cross-objection in the judgment when the appeal was disposed of by the learned Additional District Judge. Later when this was brought to his notice he recorded a summary order stating that it was conceded by the learned counsel appearing in support of the cross-objection that he would not be pressing the same. 6. Two appeals have been filed before this Court, one against the judgment and decree of the learned Additional District Judge by which he has affirmed the judgment and decree of the trial Court and the other against the order dismissing the cross objection of the defendants-2nd party. Since in substance, they relate to the same facts and issues, they are neither different in contents nor in substance. 7. Mr. Krishan Prakash Sinha, learned counsel appearing for the appellant has submitted that although the Courts below have technically dismissed the suit and the appeal filed on behalf of the plaintiff, they have virtually decreed the suit by holding that defendants-1st party did not get possession after the execution of the two sale deeds dt. 30-11-1961 He has contended that the two sale deeds were executed in consideration of compounding of non-compoundable offences and or stifling the prosecution therefor. This along with the fact that the prosecution was actually stifled, is sufficient to attract the dictum that in pan delicto potior est conditio defendantis. 30-11-1961 He has contended that the two sale deeds were executed in consideration of compounding of non-compoundable offences and or stifling the prosecution therefor. This along with the fact that the prosecution was actually stifled, is sufficient to attract the dictum that in pan delicto potior est conditio defendantis. According to him the Courts below having found that the two sale deeds were void as they were executed pursuant to an illegal agreement but the plaintiff derived full advantage of the said illegal consideration were required to act in accordance with the principle of equity that the Court will not aid a party to retrieve his position if he is not able to show that he has been less to blame than the other and refused to decide any and ever) issue thereafter. Mr. Sinha has also made a grievance that the cross-objection filed on behalf of the appellants in the Court of appeal below was not considered by the learned Additional District Judge in accordance with law. He has submitted, in this regard, that there was no concession on behalf of the appellants before the learned District Judge that they would not press their cross objection and if there was any such concession by the learned counsel representing them in the Courts below, the same was void and fit to be ignored. Learned Additional District Judge, according to Mr. Sinha, committed error of law in summarily disposing of the cross-objection filed on their behalf and that also not along with the plaintiffs appeal but subsequently as if he had no obligation to decide the cross-objection in accordance with law. Mr. Shashi Shekhar Dwivdei, learned counsel appearing for the respondents has however submitted that denial of relief to avoid a document by virtue of S. 23 of the Contract Act shall not extend to a prescription that a Court of law shall decide no issue of fact and law except the question affected by the doctrine that an immoral contract shall not be given effect to or that when the illegal portion of an agreement has been carried into effect the whole matter is outlawed. On the question of possession parties fully entered into evidence and the Courts below committed no wrong by deciding the question of possession. Mr. On the question of possession parties fully entered into evidence and the Courts below committed no wrong by deciding the question of possession. Mr. Dwivedi has also contended that the appellants by not arguing on the questions raised by them in the cross-objection left no option with the court but to decide the plaintiffs appeal and the questions raised in course of the hearing of the appeal. 8. There is no cross-objection filed on behalf of the respondents. Neither party has questioned the finding that the prosecution initiated against the husband of the plaintiff-respondent and her brother was for the offences which were not compoundable and that the agreement to compromise pursuant to which the two sale deeds were executed by the plaintiff-respondent in favour of the defendants-1st party was illegal in that part in which the parties agreed to compound the offences and stifle the prosecution, an agreement made void in terms of S. 23 of the Contract Act. They have also not questioned the finding that the illegal portion of the agreement was carried into effect. The Courts below have found that since the agreement was for illegal consideration of stifling the prosecution which was carried into effect, the principle, in pari delicto potior est conditio defendantis, is attracted and the plaintiff is not entitled for the declaration that the two deeds were null and void. Mr. Sinhas argument, however, is that the Courts refusal to declare the two sale deeds null and void has in fact become unreal because it has held that the sale deeds were not given effect to and the appellants and/or their vendors never got possession. He has placed reliance upon a Division Bench judgment of this Court in the case of Bindeshari Prasad V/s. Lekhraj Sahu, (1916) 1 Pat LJ 48 : (AIR 1916 Pat 284) for the proposition that a party to an illegal contract is equally guilty and he cannot seek help of the Court in equity in respect thereof. He has placed reliance upon a Division Bench judgment of this Court in the case of Bindeshari Prasad V/s. Lekhraj Sahu, (1916) 1 Pat LJ 48 : (AIR 1916 Pat 284) for the proposition that a party to an illegal contract is equally guilty and he cannot seek help of the Court in equity in respect thereof. Atkinson, J. (as he then was) who delivered the main judgment concurring with the view expressed in the case of Majibar Rahman V/s. Muktashed Hossain (1913) ILR 40 Cal 113 has said :- "If any part of the consideration supporting a contract is void, it taints the whole contract with illegality, and even though a part of the consideration may be legal yet you cannot sever the legal from the illegal, the taint of illegality vitiates the entire contract". Bindeshari Prasads case (AIR 1916 Pat 284) was also a case in which the parties had agreed to compound non-compoundable offences and in consideration thereof the plaintiff had executed a deed of conveyance, but later moved the Court for declaration that it was null and void on the ground of its having been executed for an illegal consideration. Atkinson, J. in the said case has stated the law in the following words : "The rule of law with regard to illegal contracts is that a Court of law will not aid persons in enforcing the performance of an illegal contract or assist them to recover back property which they have given away under such an illegal contract, when the persons and parties to the contract are themselves in pari delicto in procuring this illegality. The Courts of equity in England have always refused to afford equitable relief in enforcing a contract void in law or restoring property which is based on an illegal contract where the illegality is apparent on the face of the document itself. Considering the question as to whether the plaintiff was in pari delicto with the defendant in procuring the contract in the said case or not, Atkinson, J. has said:- "Mr. Sahay contends, however, that Lekhraj is really not in pari delicto with Bindeshari Prasad in procuring the contract in this case, because he says that Lekhraj was induced to enter into the contract with Bindeshari Prasad through duress and undue influence and fear. Sahay contends, however, that Lekhraj is really not in pari delicto with Bindeshari Prasad in procuring the contract in this case, because he says that Lekhraj was induced to enter into the contract with Bindeshari Prasad through duress and undue influence and fear. In answer to that argument we can only say that we cannot find a trace nor a scintilla of evidence to justify the assertion that, in doing what Lekhraj did, he acted under any undue influence, compulsion, duress or fear alleged to have been practised upon him by Bindeshari Prasad. To our mind undue influence is conspicuous by its absence. The onus is upon Lekhraj to establish undue influence as a fact and this he has not done. Therefore, Lekhraj in our opinion was in pari delicto with Bindeshari Prasad in procuring the illegal contract in this case." 9 Atkinson, J. as also Champan, J. who agreed with Atkinson, J. were always conscious of the fact that a party who is less to be blamed, however, may not be treated to be a free agent or in pari delicto with the other party and such a party can always avoid the illegal transaction. The principle is not in doubt mat an agreement to stifle a prosecution if the offences alleged are not compoundable is illegal (see AIR 1941 PC 95) but at the same time it has been invariably pointed out that it is of the essence that the defendants should establish a contract whereby the proposed or actual prosecutor agreed as part of the consideration received or to be received by him either not to bring or to discontinue criminal proceedings for some alleged offence. The courts must inevitably enquire : did one party to the transation make his promise in exchange or part exchange or promise of the other "not to prosecute or continue prosecuting"? Several authorities are available in support of this proposition including the case of Ouseph Poulo V/s. Catholic Union Bank Ltd., AIR 1965 SC 166 and V. Narasimha Raju V/s. Gurumurthy Raju, AIR 1963 SC 107 . 1 am tempted, however, to refer to the case of Sita Ram V/s. Radha Bai, AIR 1968 SC 534 . Several authorities are available in support of this proposition including the case of Ouseph Poulo V/s. Catholic Union Bank Ltd., AIR 1965 SC 166 and V. Narasimha Raju V/s. Gurumurthy Raju, AIR 1963 SC 107 . 1 am tempted, however, to refer to the case of Sita Ram V/s. Radha Bai, AIR 1968 SC 534 . It has then stated in the said case :- "The principle that the Courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud is expressed in the maxim in pari delicto potior est conditio defendantis. But as stated in Ansons principles of the English Law of Contract, 22nd Ed. P. 343 there are exceptional cases in which a man will be relieved of the consequences of an illegal contract into which he has entered - cases to which the maxim does not apply. They fall into three classes (a) where the illegal purpose has not yet been substantially carried into effect before it is sought to recover money paid or goods delivered in furtherance of it; (b) where the plaintiff is not in pari delicto with the defendant; (c) where the plaintiff does not have to rely on the illegality to make out his claim." To me, the exceptions appear to be relevant for this case. The prosecution had not concluded before the instant suit was filed. Of course, the Courts below have held that the illegal purpose of stifling the prosecution had in fact been substantially carried into effect I and the plaintiff was in pari delicto with the I defendants. But an issue for which the plaintiff is not required to rely on the illegality to make out her claim i.e. a finding and even a relief which is not connected or does not touch the immoral or void agreement can be recorded and granted. The plaintiff-respondent has not relied upon the immoral/void transaction which rendered the two sale deeds void for the question or issue that the defendants-1st party did not get possession of the suit land and consequentially their transferees that is to, say, the appellants also did not get possession. The plaintiff-respondent has not relied upon the immoral/void transaction which rendered the two sale deeds void for the question or issue that the defendants-1st party did not get possession of the suit land and consequentially their transferees that is to, say, the appellants also did not get possession. Although my attention has been drawn to several authorities including the case of Waman Shrmiwas Kini V/s. Ratilal Bhagwandas and Co., AIR 1959 SC 689 which do say that the principle of pari delicto is attracted in case a party seeks to enforce something obtained as a result of some illegal consideration or to avoid a transaction so affected but no case is an authority for the proposition that the Court will refuse to decide the issues arising between the parties on their pleadings. It is not possible, therefore to accept the contention of Mr. Sinha that the Courts below acted illegally in deciding the question of possession and/or looking into the nature of the transactions between the parties to notice that these two sale deeds were void; merely because the plaintiff respondent was in pari delicto with the defendants first party. 10 The other contention of Mr. Sinha that the Court of appeal below has ignored the cross-objection while deciding the appeal of the plaintiff respondent is also devoid of any merit. What a Court can do if the party represented by a Counsel, states before it that he is not interested in pressing his cross-objection. To concede to a question of law and/to a fact is different from not pressing a point or not claiming a decision on certain issues Mr. Sinha does not seem to be correct in equating the statement of the learned counsel for the appellants before the learned Additional District Judge that he would argue the case only on the questions of law and not press his cross-objection. Although several grounds are raised in a memo of appeal it is the usual experience that several of the grounds are not pressed and the case is argued only on the basis of some of the grounds only and quite a few grounds are not raised at all. To hold, as contended by Mr. Although several grounds are raised in a memo of appeal it is the usual experience that several of the grounds are not pressed and the case is argued only on the basis of some of the grounds only and quite a few grounds are not raised at all. To hold, as contended by Mr. Sinha that the Court was required to decide all the questions raised in the cross-objection even if the learned counsel appearing in support of the cross-objection confined his opposition to the questions of law only will amount to suggesting that a Court of appeal should reappraise and re-evaluate the evidence in all the aspects irrespective of the fact whether any such re-examination is needed or not. Learned Addl. District Judge has fairly stated in his order dt.14-5-1974, rejecting the cross-objection that when the appeal was heard learned counsel appearing for the appellants before him (respondents before him) stated that he would not press his cross-objection but this fact could not be noted in his judgment due to oversight. I am not satisfied that any error of law has been committed by the learned Addl. District Judge in this regard much less any substantial error of law. In view of my observations above, I am of the opinion that there is no merit in these appeals and they are fit to be dismissed. 11. In the result these appeals are accordingly dismissed with costs. Hearing fee payable by the appellants to the plaintiff respondent is assessed at Rs. 250/-.