FATEH CHAND Vs. BALKISHAN DASS

JUDGEMENT

(1.) By a registered deed of lease dated May 19, 1927 which was renewed on January 30 1947 the Delhi Improvement Trust granted leasehold rights for 90 years to one Dr. M. M. Joshi in respect of a plot of land No.3,'E Block, Qarol Bagh, Delhi, admeasuring 2433 sq. yards. Dr. Joshi constructed a building on the land demised to him. Chandrawati, widow of Dr. Joshi as guardian of her minor son Murli Manohar by sale-deed dated April 21, 1947 sold the leasehold rights in the land together with the building to Lala Balkrishan Das who will hereinafter be referred to as 'Plaintiff' for Rs.63,000/-. By an agreement dated March 21, 1949 the Plaintiff contracted to sell his rights in the land, and the building to Seth Fateh Chand-hereinafter called 'the defendant'. It was recited in the agreement that the plaintiff agreed to sell the building together with 'pattadari" rights appertaining to the land admeasuring 2433 sq. yards for Rs.1,12,500/- and that Rs.1,000/- were paid to him as earnest money at the time of the execution of the agreement. The conditions of the agreement were: "(1) I, the executant shall deliver the actual possession, i.e. complete vacant possession of Kothi (bungalow) to the vendee on the 30th March 1949, and the vendee shall have to give another cheque for Rs. 24,000/- to me:out of the sale price.

(2.) On March 25, 1949 the plaintiff received Rs.24,000/- and delivered possession of the building and the land in his occupation to the defendant, but the sale of the property was not completed before the expiry of the period stipulated in the agreement. Each party blamed the other for failing to complete the sale according to the terms of the agreement. Alleging that the agreement was rescinded be cause the defendant had committed default in performing the agreement and the sum of Rs.25,000/- paid by the defendant stood forfeited, the plaintiff in an action filed in the Court of the Subordinate Judge, Delhi, claimed a decree for possession of the land and building described in the plaint, and a decree for Rs.6,500/- as compensation for use and occupation of the building from March 25, 1949 to January 24,1950 and for an order directing enquiry as to compensation for use and occupation of the land and building from the date of the institution of the suit until delivery of possession to the plaintiff. The defendant resisted the claim contending inter alia that the plaintiff having committed breach of the contract could not forfeit the amount of Rs. 25,000/- received by him nor claim any compensation. The trial Judge held that the plaintiff had failed to put the defendant in possession of the land agreed to be sold and could not therefore retain Rs. 25,000/- received by him under the contract. He accordingly directed that on the plaintiff depositing Rs. 25,000/- less Rs. 1,400/- (being the amount of mesne profits prior to the date of the suit) the defendant do put the plaintiff in possession of the land and the building, and awarded to the plaintiff future mesne profits at the rate of Rs. 140/- per mensem from the date of the suit until delivery of possession or until expiration of three years from the date of the decree whichever event first occurred. In appeal the High Court of Punjab modified the decree passed by the trial Court and declared "that the plaintiff was entitled to retain out of Rs. 25,000/paid by the defendant under the sale agreement, a sum of Rs. 11,250/" being compensation for loss suffered by him and directed that the plaintiff to get from the defendant compensation for use and occupation at the rate of Rs. 265/- per mensem. The defendant has appealed to this Court with certificate under Art. 133 (1) (a) of the Constitution.

(3.) The first question which falls to be determined in this appeal is as to who committed breach of the contract. The plaintiffs case as disclosed in his pleading and evidence was that he had agreed to sell to the defendant the leasehold rights in the land and building thereon purchased by him from Murli Manohar Joshi by sale-deed dated April 21, 1947, that at the time of execution of the agreement the defendant had inspected the sale deed and the lease executed by the Improvement Trust dated January 30, 1947 and the "sketch plan" annexed to the lease, that the plaintiff had handed over to the defendant a copy of that plan and had put the defendant in possession of the property agreed to be sold, but the defendant despite repeated requests failed and neglected to pay the balance remaining due by him and to obtain the sale deed in his favour. The defendant's case on the other hand was that the plaintiff had agreed to sell the area according to the measurement and boundaries in the plan annexed to the lease granted by the Improvement Trust and had promised to have the boundary wall built, that at the time of the execution of the agreement of sale the plaintiff did not show him the sale deed by which he had purchased the property, nor the lease obtained from the Improvement Trust in favour of Dr. Joshi nor even the "sketch plan", that the plaintiff had given him a copy of the "sketch plan" not at the time of the execution of the agreement, but three or four days after he was put in possession of the premises and that on measuring the site in the light of the plan he discovered that there was a "shortage on the southern side opposite to Rohtak Road", that thereupon he approached the plaintiff and repeatedly called upon him to put him in possession of the land as shown in the plan and to get the boundary wall built in his presence but the plaintiff neglected to do so. We have been taken through the relevant evidence by counsel and we agree with the conclusion of the High Court that the defendant and not the plaintiff committed breach of the contract.