DOLA KHETAJI VAHIVATDAR Vs. BALYA KANOO PATEL

JUDGEMENT

(1.) THE plaintiff sold the suit property to the defendant on the 16 March 1906, continuing to remain in possession as tenant. On the 13 August 1906, the defendant executed in his favour a satekhat to sell the property to him at any time within twelve years for Rs. 395, Rs. 5 being paid as earnest money. THE plaintiff filed a suit in 1911 claiming to redeem the property on the ground that the document of the 16 March was a mortgage, seeking the protection afforded by Section 10A of the Dekkhan Agriculturists Relief Act. That suit was dismissed. Before twelve years had expired the plaintiff sued again to recover the property on payment of Rs. 395. It was contended that that question was res judicata as the plaintiff might in his original suit of 1911 have sued in the alternative for specific performance of the satekhat. Whether he could have sued in the alternative for specific performance in his redemption suit need not be determined. It certainly cannot be said that he ought to have done so. THE two suits were mutually inconsistent and if the plaintiff failed in proving the mortgage, he still had a number of years left under the satekhat within which he could have sued to get back the property on payment of the consideration mentioned in the satekhat. We think, therefore, the decision of the lower appellate Court is right and the appeal must be dismissed with costs.