CHAMPALAL Vs. ROOPA

JUDGEMENT

(1.) THIS is a civil regular second appeal by the plaintiffs Nathmal and others against the judgment and decree of the District Judge, Pali, dated the 8th May, 1956, in a suit for recovery of purchase price and damages, the appellant Nathmal having died during the pendency of this appeal, his name was ordered to be struck off the record, and no application for substitution was apparently made as his son champalal and his grandson Bhanwarlal stood already impleaded as appellants in the memorandum of appeal.

(2.) THE material facts out of which this appeal arises may be briefly stated as follows. There were money dealings between the plaintiffs and defendants Nos. 1 and 2 Koopa and Chatra (and their father Mukna) and In connection with these the former had filed two suits being No. 384 of 1950 and 328 of 1950 for the recovery of Rs. 3730/-and Rs. 2200/-respectively In the court of the Civil Judge Sojat and had filed a third suit for the recovery of Rs. 500/- in the court of the Munsiff Sojat. The plaintiffs' case was that on Sawan Vadi 13 smt. 2008, all the suits were compromised (Vide EX. 1) for a total sum of Rs. 5000/-and in part payment thereof these defendants had inter alia agreed to sell a house belonging to them, the boundaries whereof are mentioned in paragraph one of the plaint, for a sum of rs. 2700/- The plaintiffs' case further was that defendants Nos. 3 to 8 stood sureties for the aforesaid defendants to the extent of Rs. 4200/ -. in view of this agreement, all the three suits mentioned above were withdrawn by the plaintiffs. It is further admitted by them that they had received repayment to the tune of Rs. 2300/- and that defendants respondents Nos. 1 and 2 had also executed a registered sale-deed with respect to the house in question in their favour on the 13th August, 1951. Their case, however, was that they were not put in possession of this House, and they later discovered that a sale-deed with respect to this house had already been executed presumably by Mukna, father of the said defendants in favour of one Khuma on the 28th December, 1947, and the latter was in possession of ft. The plaintiffs had also received two notices Exs. 5 and 6 on the 7th September, 1951, and 8th December, 1951, respectively from Khuma in which it had been stated that the house in question had been purchased by him on the 28th december, 1947, and that he was in possession of the same, and, therefore, the plaintiffs had no right to purchase the same from defendants Nos. 1 and 2. The plaintiffs also gave a notice Ex. 7 to defendants Nos. 3 to 8 the sureties on the 23rd May; 1953, in which they called upon the latter either to give possession or to pay the sum of Rs, 2700/- which had been adjusted in neu of the price of the house in question. The sureties declined to pay. Consequently, the plaintiffs brought the present suit on the 20th January, 1954, against all the defendants for recovery of the sum of Rs. 2700/- as also a further sum of Rs. 800/- as damages.

(3.) DEFENDANTS Rawat, Bherusingh and Bhmamchand admitted the plaintiffs' claim. Defendants Chimna and Magga respectively paid Rs. 1000/- and Rs. 200/-to the plaintiffs during the pendency of the suit. It is worthy of notice that defendant chimna is the father-in-law of defendant No. 1 Roopa. Defendant No. 7 Sheoji allowed the suit to proceed ex parte against himself. Defendants Nos. 1 and 2 stoutly resisted the suit. Briefly put, theif contentions were :