CHANDRAWATI DEVI Vs. SURENDRA PAL

JUDGEMENT

(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.

(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.