VENKATESH DAMODAR MOKASHI Vs. MALLAPPA BHIMAPPA CHIKKALKI

JUDGEMENT

(1.) The plaintiff's father Damodar got a decree against defendants. In execution of that decree the suit property was put up for sale and was purchased by one Jayappa in 1905. In 1906 Jayappa purported to sell the property to Jayaram. But in 1909 it appears that Jayappa disregarding that sale got symbolical possession, one must presume under his purchase at the Court sale in 1905. In the same year (1909) Jayaram sold back the property to Damodar; and there seems good foundation for the suggestion that throughout Damodar, the execution- creditor, was the real purchaser, for in 1906 Damodar agreed to re-sell the property to the first defendant at a certain price, and the evidence shows that that price has been wholly paid, although Damodar at one time raised objections to receiving the balance of the purchase money owing to there being delay in paying it. The result is that Damodar has agreed to sell the property to the first defendant who was then in possession, and had all along been in possession since the time of the decree, and the defendant paid the purchase price. It is quite true that the defendant has not got a sale-deed, and the time has passed within which he could have sued Damodar to get a sale-deed. But the equitable principles which should be applied to these facts are, in my opinion, perfectly clear.

(2.) In Gangaram, V/s. Laxman Ganoba (1916) I.L.R. 40 Bom. 498; 18 Bom. L.R. 155, the plaintiff sued for a declaration of title to and for possession of immoveable property from the defendant. He based his title upon a registered sale-deed dated the 5 December 1911 from one Narayan. Prior to that date the plaintiff had notice of the execution of a contract of sale of the same property by Narayan to the defendant. It was held that the plaintiff having purchased with notice of the defendant's contract, his suit for possession must fail. The Court said (page 502): The question is whether the defendant has a good defence to a suit by a purchaser from Narayan who can rely upon a registered sale-deed and whether he can, notwithstanding the sale-deed, retain possession of the property on the ground that the plaintiff purchased with notice of the defendant's contract....It is not contended that in the defendant's contract any date is fixed for performance nor is there any evidence that before he learnt of the plaintiff's purchase, the defendant had any notice that the vendor would refuse performance. Therefore, at the date of the plaintiff's suit namely, the 16 of April 1912, a suit by the defendant against his vendor for specific performance would have been within time and if the plaintiff was at the date of suit in the position of a trustee for the defendant, the latter is clearly entitled to enforce that position up to the end of the litigation. It must not be taken from the above remarks that the defendant would be in a worse position in relation to the plaintiff if at the date of suit his right to sue his vendor for specific performance had been barred, since he is a defendant now relying upon his possession.

(3.) In Lalchand V/s. Lakshman (1904) I.L.R. 28 Bom. 466; 6 Bom. L.R. 510 the facts were different. The defendant who was in possession had filed a suit for specific performance against his vendor which had been dismissed, and accordingly it was held that the plaintiff who had executed a conveyance of the property without its being registered was entitled to recover against his purchaser.