RAJAN PATRO Vs. AKUR SAHU

JUDGEMENT

(1.) THIS is a plaintiff's second appeal against the judgment and decree dated 22nd august 1953 of Sri N. G. Ganguli, District Judge of Cuttack, confirming a decision of the Additional Munsif of Jaipur, arising out of a suit for declaration of title, recovery of possession and for damages to the extent of Rs. 388-11-0.

(2.) THE facts found and which appear from the records are as follows ; the suit property belongs to defendant No. 1 and the fathers of defendants 2 to 5, the defendants contracted to sell the disputed land in favour of the plaintiff on 16th March 1935 and in pursuance of the said contract a Kabala was executed on 19th March 1935 for a consideration of Rs. 300/ -. The defendants however did not get the Kabala registered. The plaintiff therefore brought Title Suit No. 1123 of 1938 against the defendants which, in substance, was one for specific performance of contract. The plaintiff prayed that the defendants be ordered to get the document registered, failing which the document dated 19th March, 1935 may be registered at the instance of the Court. The suit was decreed ex parte. The decree is Ex. 4 in the present case which is dated 9th August 1938. It was found that the plaintiff had already paid a sum of Rs. 270/- and the plaintiff was called upon to pay only a sum of Rs. 30/- within 15 days from the date of the decree that is, by 24th August, 1938. It appears, however, the plaintiff did not pay the amount, but on 14th September 1938 a petition was filed on behalf of the plaintiff for extension of time. The Court in allowing the petition extended time till 2nd November 1938 and the balance consideration of Rs. 30/- was, in obedience of the order, deposited on 26th October, 1938. A notice was issued on the defendants to get the Kabala registered. The defendants did not appear. The Kabala was sent to the Sub-Registrar for registration. But the Sub-Registrar refused to register it as it was already barred by time for registration. The Court, therefore, executed a fresh kabala which was eventually registered, the registered Kabala being dated 16th january, 1940. It appears further that the plaintiff had brought Money Suit No, 410 of 1946 claiming damages to the extent of Rs. 380/- and odd on the allegation that the defendants removed the crops forcibly and a decree was passed on 13th november 1937, which is Ex. 6. All the defendants in the present suit were also parties to the previous Suit No. 410 of 1946. The present suit has been brought for declaration of title and for recovery of possession and for damages on the cause of action that the plaintiff has been dispossessed and the crops grown by the plaintiff had been removed by the defendants.

(3.) BOTH the Courts below have dismissed the present suit on the ground that the court had no jurisdiction to extend the time for payment of the balance of Rs. 30/by the plaintiff and further that the Kabala executed afresh by the Court on behalf of the defendants which is the basis of the title of the plaintiff is not valid as being without jurisdiction inasmuch as in the previous suit the prayer was for getting the document, already executed by the defendants, registered, and on the refusal of the Sub-Registrar to get that document registered on the ground of limitation, the court had no further jurisdiction to execute a Kabala on behalf of the defendants. The point taken by the defendants also prevailed on the ground that the previous suit No. 123 of 1938 was not maintainable under the provisions of the Indian registration Act.