HARDAYAL GIR Vs. SOHNA RAM

JUDGEMENT

(1.) This appeal, by special leave, by the defendant, is directed against the judgment and decree of the High court of Rajasthan) dated 24/09/1965, in Second Appeal No. 73 of 1964.

(2.) The respondent plaintiff instituted Civil Original Case No. 284 of 1961 out of which this appeal arises, for a declaration that he is the sole owner and is in possession of three and a half Murabbas of land measuring 84 Bighas out of cultivable land of Murabbas 10/23-15, 9/24-10, 6/25 and 5/23-5 of the total extent of 96 Bighas 10 Biswas at Chak 9 B. B. Tehshil Padampur and also for a permanent injunction restraining the defendant from interfering with the proprietary possession of the land of the plaintiff and from transferring the land by way of sale, mortgage or in any other manner. The plaintiff's case, in brief, was as follows. The defendant, Hardayal Gir, is a displaced person and he has filed claims to the tune of more than rupees ten lakhs. The government had decided to dispose of by auction sale certain evacuee properties and the displaced persons were given the benefit of getting the amounts due on their claims adjusted towards the sale price of properties that may be purchased by them. But the purchasers were required to make an advance payment in cash of l/10th of the sale price the moment the bid is knocked down in their favour. The suit properties were so put up for sale by auction on 13/11/1956 and the defendant was anxious to bid in the auction and purchase those properties, but he did not have sufficient money even to make the advance payment of 1/10th the price, if his bid was accepted. Therefore he entered into an agreement with the plaintiff on 13/11/1956. According to the terms of the agreement, the plaintiff was to make the advance deposit and also to incur the necessary expenses for the defendant pursuing his verified claims. The plaintiff was to bid in the auction in the joint names of both himself and the defendant,and the price payable for the purpose was to be adjusted from and out of the verified claims of the defendant. In the properties so purchased, from and out of the compensation paid in respect of the verified claims, both the plaintiff and the defendant were to have equal shares. Accordingly the plaintiff bid in the auction in the joint names of himself and the defendant on 13/11/1956 and purchased 4 squares of land bearing numbers 5, 6, 9 and 10, more fully described in the plaint. The highest bid so given by the plaintiff was rs. 67,000/. The bid having been accepted, the plaintiff made the advance deposit of 1/10th of Rs. 6,750. 80 immediately. But, on or about 1959, it was found that the defendant's claim had been substantially disallowed, excepting for a sum of Rs. 17,000. 00 and odd. This amount of Rs. 17,000. 00 was adjusted towards the sale price and the plaintiff had to make a further deposit of rs. 43,000/ excluding the. advance deposit already referred to. According to the plaintiff, this additional amount was deposited by him on the basis of fresh oral arrangement entered into with the defendant to the effect that the defendant will get only a half share in the extent of properties that may be purchased from and out of the compensation amount that is utilised for the purchase and that the defendant will not make any claim in respect of the purchases that may be made by the deposits of the plaintiffs' own moneys. According to the plaintiff, as only a sum of Rs. 17,000. 00 of the defendant's compensation amount have been utilised, the latter will be entitled only to an extent of half-a-square of land from and out of the total 4 squares purchased in the auction on 13/11/1956. But the defendant) contrary to the agreement and claiming that he was entitled to two squares representing his half share in the properties purchased, got mutation of names in the Revenue Register and was also attempting to transfer his half share of 2 squares to a third party. Hence the plaintiff instituted the suit for the reliefs, mentioned above, to safeguard his rights.

(3.) The appellant defendant contested the claim of the plaintiff on several grounds. While admitting the agreement of 13/11/1956, he claimed that on the basis of that agreement he was entitled to get a half share in the properly that is purchased in the auction, irrespective of the amounts that the plaintiff may have advanced and in the compensation claim that may be ultimately upheld by the authorities. According to the defendant, the plaintiff, under the terms of the agreement, was bound to provide the necessary amounts for making the advance and incur the necessary expenses to enable the defendant to substantiate his verified claims. But, just as the plaintiff and the defendant would be entitled to share equally any compensation amounts that may be adjudged to be due to the defendant by the authorities, similarly both the plaintiff and the defendant are entitled to share equally in the properties that may be purchased in the auction. This was the agreement, according to the defendant.