- (1.)THIS is a plaintiffs' second appeal in a suit for recovery of Rs. 3500/- with pendente lite and future interest thereon.
(2.)THE plaintiffs' case was as follows : THE defendant-respondent's grandfather Kunwar Madho Singh was the Zamindar of Village Bankner. He had plotted out some of his land and disposed of all the plots on 99 years lease to different persons. THE defendant-respondent came to be the owner of the said property on the death of Kunwar Madho Singh as his heir and legal representative. THE defendant- respondent assured the plaintiff-appellants that plot No. 12 of the said plots in village Bankner was in his possession as proprietor, in as much as on account of the breach of the terms of the lease originally granted to one Piyarey Lal, the defendant-respondent's ancestor had resumed his possession over the plot. THE plot was not inhabited and believing the assurance given by the defendant-respondent that he had the right to transfer the same, the plaintiff-appellants purchased it on 10th August, 1964 on payment of Rs. 3000/- as consideration for the same. THE plaintiff-appellants tried to take possession of the plot of land after the execution and registration of the sale-deed but Smt. Rambha Kumari, who was originally impleaded as defendant No. 2 in the suit, and her relatives obstructed them and did not permit them to enter into possession and later on served a notice dated 10th Sept. 1964 claiming that she was the owner of the plot of land and the plaintiffs did not get any rights under the sale-deed. THE plaintiffs thereafter repeatedly requested the defendant-respondent to put them into possession of the plot land but he expressed his inability to do so, and thus the plaintiff could not get possession over the land. THE consideration paid by the plaintiffs for the sale had accordingly failed on account of the defendant-respondent's failure to put them into possession of the plot of land sold and the plaintiffs are entitled to recover the sale consideration of Rs. 3000/- along with Rs. 250/- as expenses incurred on the sale and Rs. 250/- as interest at the rate of one percent per mensem from the date of the sale up to the date of the suit as damages. In the suit as originally instituted Smt. Rambha Kumari was impleaded as the second defendant and the relief claimed was firstly for possession over the plot of land and in the alternative for recovery of the amount of Rs. 3500/- with pendente lite and future interest, but by an amendment of the plaint, the name of Smt. Rambha Kumari was deleted from the array of defendants and the relief for possession was also given up and only the relief for recovery of Rupees 3500/- along with pendente lite and future interest against the defendant-respondent remained.
The defendant-respondent contested the suit on the following pleas : The plaintiffs had no cause of action against the defendant-respondent. The plot of land is in the possession of the plaintiffs and even if it was proved that Smt. Rambha Kumari was in possession. the plaintiffs are not entitled to recover the consideration for the sale or damages against the defendant-respondent, inasmuch as the defendant- respondent had not committed any breach of the terms of the sale. Smt. Rambha Kumari was not in possession of the plot of land in suit and even if she claimed any right or interest therein it was not tenable against the proprietary rights in the land, which stood transferred to the plaintiff-appellants and the possession delivered to them by the defendant-respondent. It was further pleaded by the defendant-respondent that his grandfather Kunwar Madho Singh had established a new residential settlement, which was known after him as Madhopuri, on plot No. 66 by dividing the land into building plots out of which plots Nos. 12 and 13 were given on a 99 years lease to one Kunwar Sultan Singh. Similar leases were granted to others in respect of other plots. It was one of the conditions of the leases that the lessee must within three years of the grant of the lease erect at least a boundary wall and in case the lessee failed to do so the lease would be liable to be forfeited and the lessor would be entitled to re-enter into possession without notice and thereafter to use or dispose of the land in any manner he liked, and the lessee would in that event be not entitled to any refund of premium or any amount. Kunwar Sultan Singh did not erect the necessary constructions within three years of the grant of the lease to him. whereupon the lease automatically stood cancelled and the defendant-respondent and his ancestor re-entered into possession of the land and started cultivating it as before. Some other persons had similarly not made construction within three years of the grant of lease of other plots in the said residential settlement and the defendant had under the terms of the lease resumed their plots of land also and sold the same to other persons who had thereafter raised constructions thereon. Plots Nos. 20 and 23 of the said residential settlement were in this manner purchased by Shri Gulab Singh father-in- law of Smt. Rambha Kumari from the defendant-respondent's ancestor and the plaintiff was a tenant in possession of the building thereon and was thus in know of the full facts and had taken the sale only after being satisfied about defendant-respondent's title, and possession had also been delivered to them by the defendant-respondent. There were existing constructions on the plot of land in suit which belonged to the plaintiffs and the plaintiffs are in peaceful possession thereon. It was then pleaded that the plot of land in suit had never been given by the defendant-respondent to Smt. Rambha Kumari who had no claim of any kind in that land and even if she or her father-in-law Sri Gulab Singh were raising unlawful constructions and were unlawfully interfering with the plaintiffs' possession then in that case the defendant-respondent had no objection to the suit being decreed against Smt. Rambha Kumari, who as noticed above was originally impleaded as the second defendant to the suit and the relief for possession was claimed against her. It was then pleaded that if Smt. Rambha Kumari set up any transfers from the original lessee of the plot of land in suit, the defendant-respondent had no knowledge of the same, and they were all unlawful and not binding on him, as the original lessee had no right to transfer the land or to give possession thereon to Smt. Rambha Kumari, and in any case the only person liable was Smt. Rambha Kumari and not the defendant-respondent, whether in respect of the claim for possession or damages. In the end it was pleaded that the suit against the defendant-respondent was not maintainable.

The trial court framed the following issues :- 1. Whether the defendant failed to deliver peaceful possession of the land in dispute to the plaintiffs under the terms of the sale-deed as alleged ? If so, whether he is liable to refund the sale consideration together with all other incidental expenses amounting to Rs. 250/- to the plaintiffs as alleged in case he is unable to deliver possession of the land in dispute to the plaintiffs ? 2. Whether the plaintiffs are entitled to any interest as claimed ? If so, to what amount of interest are the plaintiffs entitled ? 3. To what relief, if any, are the plaintiffs entitled ? 4. Whether the suit is bad for non-joinder of Smt. Rambha Kumari as a party to the suit as alleged in para 3 of the additional written statement of the defendant ?

(3.)ON issue No. 1 the trial court found that possession over the plot of land in suit was not delivered by the defendant-respondent to the plaintiffs, and that consequently the consideration for the sale failed and the sale became void and the defendant-respondent was liable to refund the sale-consideration of Rs. 3000/- along with the sum of Rupees 250/- which was found to have been spent by the plaintiffs in connection with the sale. ON issue No. 2, the trial court held that the plaintiffs were entitled to recover interest at 6 per cent per annum instead of one per cent per mensem and accordingly found the plaintiffs entitled to recover Rs. 125/- as interest. ON issue No. 4. the trial court held that Smt. Rambha Kumari was not a necessary party to the suit, and on these findings it decreed the suit for recovery of Rs. 3,375/- with pendente lite and future interest at four per cent per annum and costs.
On appeal by the defendant-respondent, the lower appellate court formulated the following five points for its determination : 1. Whether or not the defendant had transferable interest on the date of the execution of the sale-deed ? 2. Whether or not the plaintiffs were put in possession ? 3. Assuming, that the plaintiffs were not put in possession, can the plaintiffs be granted the relief claimed in absence of the cancellation of the sale-deed ? 4. Whether, there were any foundations in the land in suit before the execution of the sale-deed ? If so, effect ? 5. When were the constructions made in the land in suit by Smt. Rambha Kumari and what is effect thereof on the suit ? On the first point the lower appellate court held that the defendant had a transferable and subsisting title in the plots of land in suit on the date of the sale. On issue No. 2. the lower appellate court held that the plaintiffs' case that they were not put in possession of the plot of land in suit was incorrect. On point No. 3, it held that it was for the plaintiffs to protect their interest and they could not hold the defendant liable for anything so long as the title to the plot of land in suit continued to vest in them, and not having claimed the cancellation of the sale-deed they were mot entitled to refund of the sale consideration. On point No. 4, the lower appellate court found that there were no foundations existing on the plot of land in suit before the execution of the sale-deed and even if they existed before the execution of the sale-deed, it could not be held that the foundations had been laid by Kunwar Sultan Singh because the deed of exchange made by him showed that there were no constructions on the land; and, therefore, the existence of foundations does not in any way help the plaintiffs. On point No. 5, the lower appellate court found that raising of constructions by Smt. Rambha Kumari on the plot of land in suit does not entitle the plaintiffs to a decree against the contesting defendant, and the plaintiffs had to thank themselves for deleting the name of Smt. Rambha Kumari from the array of the defendants. In the result the lower appellate court allowed the appeal and dismissed the suit.