GOBARDHAN DAS Vs. AFZAL HUSAIN

JUDGEMENT

(1.) This is an appeal by the plaintiffs and is directed against the appellate decision of Mr. J.C. Malik, dated 20 March 1929, confirming the decision of the Munsif, Mr. Kishori Lai, dated 19 June 1928. Chaudhri Afzal Husain owned zamindari shares in three villages, namely, Pindri, Moiya and Karmun. He sold these shares to Thakur Prasad and Baij Nath under a sale deed dated 14 August 1919 for Rs. 1,472. The sale deed contained the usual indemnity clause, which provided that if the vendees lost possession over the property sold in whole or in part the vendor would be liable to make good the loss together with interest at 1 per cent, per annum. Baij Nath sold his share to Gobardhan Das, plaintiff 1. Gobardhan Das was brother of Thakur Prasad. Thakur Prasad is dead. Bhagwat Das, plaintiff 2, is his son.

(2.) Ghaudhari Afzal Husain had purchased the shares in Pindari and Moiya from Ikram Husain and Ghazanfar Husain under a sale deed dated 25 February 1919. On the datp of the execution of the sale deed, Ikram and Ghazanfar were indebted to one Cheda Lal for a mortgage debt. They left Rs. 700 of the purchase money with Chaudhri Afzal Husain for payment to Cheda Lai. Afzal Husain did not pay the money. Ikram Husain and Ghazanfar Husain therefore brought a suit (No. 224 of 1922, of the Court of the. Munsif of Fatehpur) for recovery of the unpaid purchase money against Afzal Husain and also against Gobardhan and Thakur Prasad. Afzal Husain pleaded that he was no longer liable for the amount because he had parted with the property. Gobardhan and Thakur Prasad pleaded that they were bona fide purchasers for value and had no notice that the property was subject to an encumbrance in favour of Cheda Lal. Presumably they took shelter under Section 40, para. 2, T.P. Act. Their contention was overruled by the trial Court and a decree was passed on 31 January 1923 against Chaudhri Afzal Husain personally and against the property in the hands of Gobardhan Das and Thakur Prasad. In execution of this decree, the properties in Pindri and Moiya were sold on 22nd August 1927. This led to the institution of the present suit by Gobardhan Das and Bhagwat Das for recovery of Rs. 992 principal and Rs. 69-4-0 interest from Chaudhri Afzal Husain for damages consequent upon the loss of the property purchased by them under the sale deed dated 14 August 1919. This suit was instituted on 22 March, 1928.

(3.) Various pleas were raised in defence, but the chief contention was that the decision in Suit No. 224 of 1922 operated as res judicata inasmuch as it had been held therein that the predecessors-in-title of the plaintiff had made the purchase of zamindari shares in mauzas Pindri and Moiya with the knowledge that the property at the date of the purchase was subject to an encumbrance of Rs. 700 in favour of Cheda Lal. This plea found favour with the trial Court which dismissed the suit. It held that the former decision operated as res judicata. It also held that the plaintiff's had agreed to purchase the property as they were at the time of the sale and that they had before them the title-deeds relating to the properties a perusal of which was bound to disclose the pre-existing encumbrance. The lower appellate Court has confirmed the decree. It has been argued that the decision in the former suit does not operate as res judicata and that in view of Section 55(1) (g) and Section 55(2), T.P. Act, it was the statutory duty of Afzal Husain to discharge whatever encumbrance existed upon the property on the date of the sale.