KANDREGULA JAGANNADHARAO GOPALARAO Vs. MASINA SATHCYYA

JUDGEMENT

(1.) This an appeal directed against the judgment and decree of the Principal Subordinate Judge, Kakinada in O.S. No. 139 of 1960. Plaintiff is the appellant. He sued to recover arrears of rent or damages for use and occupation of the suit lands for three years, i.e., 1957-58, 1958-59 and 1959-60.

(2.) The salient facts as emerge from the pleadings are briefly as follows : In Fasli 1365, defendants 1 and 2 who are father and son took the suit lands on an oral lease for one year from the plaintiff's father agreeing to pay an annual rent of 96 bags of paddy for the first crop and one half of the yield for the second crop. After the expiry of one year, the defendants held over. On 4th August, 1956, an agreement was entered into between the lessor and the lessees for the sale of the lands for Rs. 30,900. Defendants paid a sum of Rs. 4,000 to the lessor on 4th August, 1956, itself. They paid a further sum of Rs. 500 on 27th August, 1956, and took a receipt, Exhibit A-1 for a consolidated amount of Rs. 4,500. The defendants deposited the balance of the sale price in the Andhra Bank at Peddapuram by 12th March, 1957, and called upon the plaintiff who had by then become the owner of the suit lands to take it and execute a registered sale deed in their favour. But the plaintiff refused to do so on the ground that the last date for payment of the sale price was 31st December, 1956 and that as the defendants did not pay up the amount by that date, they were not entitled to get the suit lands conveyed to them. This led to the institution of O.S. No. 80 of 1957 in the Court of the Subordinate Judge, Kakinada by defendants 1 and 2 for specific performance of the agreement to sell the lands to them. Defendants 3 to 5 are the other sons of defendant No. 1. O. S. No. 80 of 1957 was resisted by the present plaintiff-appellant on the ground that the plaintiffs therein (respondents 1 and 2 herein) were in breach of contract because they did not deposit the agreed sale price before 31st December, 1956, and that therefore, they were not entitled to specific performance of the agreement to sell. The Court rejected this plea and held that under the terms of the agreement of sale, the vendees were to deposit the sale price before 31st March, 1957, and that as they fulfilled their part of the contract by depositing the entire amount before that date they were entitled to a decree for specific performance. In spite of this decree, the judgment-debtor in O.S. No. 80 of 1957 did not execute the sale deed and therefore the Court executed the sale deed to the present defendants-respondents on 25th July, 1960. Exhibit B-8 dated 25th July, 1960, is this sale deed. The decision in O.S. No. 80 of 1957 become final, as no appeal was preferred against it. While so, defendant in O.S. No. 80 of 1957 (appellant herein) instituted the suit out of which this appeal arises for rent or damages for use and occupation by the vendees for a period of three years beginning with 1st April, 1957. His claim is that although the defendants who were the vendees under the agreement to sell, which was specifically performed under the decree in O.S. No. 80 of 1957 deposited the entire sale price before 31st March, 1957, the title to the suit lands did not pass to them until the execution of Exhibit B-8 in their favour on 25th July, 1960. Therefore he sued for rent of the suit lands from the defendants or the damages from them for the use and occupation of the suit lands for the period between 1st April, 1957, and 25th July, 1960. The defendants resisted this suit on the ground that under the agreement of sale in their favour, they Were to remain in possession as vendees in case they paid the agreed sale price of Rs. 30,900 before 31st March, 1957. As they paid the entire price even by I3th March, 1957, their possession after 31st March, 1957 was that of vendees. Therefore the plaintiff cannot claim rent or damages for use and occupation from them. The trial Court upheld this contention of the defendants and dismissed the plaintiff's suit. The plaintiff has therefore come up to this Court by way of the present appeal.

(3.) Mr. Krishnamurthy's contention on behalf of the appellant is that since defendants 1 and 2 who were plaintiffs in O.S. No. 80 of 1957 did not claim damages in that suit, they are not now entitled to put forward the defence that as they paid, the entire sale price for the suit lands on or before 31st March, 1957, they cannot be held liable for rent or damages for use and occupation for the subsequent period. I do not think this contention is entitled to succeed. The relevant portion of Order 2, rule 2, Civil Procedure Code, is as follows : " Order 2, rule 2 (2).-Where a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted.