KASHIRAO GONDAJI Vs. ZABU PANDU

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. The facts of the case out of which this revision arises have been stated by me in my order of reference to the Full Bench in Kashirao v. Zabu AIR 1932 Nag 5 which arose out of this very case and need not therefore be repeated here. After the point of limitation was decided in favour of the plaintiffs the case was sent down to the lower Court for decision on merits. The questions for decision after the remand were : (1) The quantum of damages to which the plaintiffs were entitled on account of the loss of 4 acres out of the land purchased ; and (2) whether the defendant was responsible for those damages to the plaintiffs.

(2.) THE lower Court found on the first point that Rs. 678 would be the proper measure of damages but the learned Judge dismissed the suit on the ground that the defendant was not at all responsible for those damages to the plaintiffs. The grounds stated for this decision are not at all intelligible and the learned Judge seems to have wholly misunderstood the plaintiffs' cause of action. On the uncontroverted allegations in the plaint there was a distinct representation by the defendant that in the 8 acres that he purported to sell on behalf of himself and his younger brother Shanker, the third brother Amrita had no interest whatsoever. There was thus over and above the implied warranty under Section 55 (2), T. P. Act, an express warranty of title given by the defendant to the plaintiffs. The result of the subsequent litigation which Amrita had with the plaintiffs clearly shows that the plaintiffs' representation on the point of title was false. It follows then that the defendant is responsible in law to make good the loss which admittedly accrued to the plaintiffs when he lost half the land in Amrita's litigation with him.