BIBI ZAINAB Vs. BIBI AZIZUNNISSA

JUDGEMENT

(1.) This is an appeal from the judgment of the Subordinate Judge modifying the decision of the Munsif. The defendant is the appellant. The facts are very simple. The defendant party sold to the plaintiff by a kabala, dated 3 February 1923 a parcel of land with a warranty that if the purchaser were dispossessed from the whole or any part of the property, or if the purchaser's title was clouded, or if for the defect of the vendor's title the vendee was dispossessed then the vendor would be liable for the purchase money. Now, the purchaser together with another person had purchased another piece of land from another vendor. The real owner of both pieces of land was a person whose name is Waliul Hasan, and he brought a suit against the purchaser who is the plaintiff in the present suit, against the purchaser of the second piece of property, and against both the vendors alleging that they had no title to the property which they had purported to sell. The vendor, in this case the present defendant, appeared in the suit and admitted that he had no title to convey the property.

(2.) The suit was compromised. The compromise was to this effect: to the real owner the two defendants gave up one of the pieces of the property which was not the subject of the kabala in dispute, and the lady, the present plaintiff, was allowed to retain the property which was the subject of her purchase from the defendant. The lady now sues the defendant for breach of warranty and claims to recover the purchase money. The learned Munsif before whom the case was tried treated the matter as a suit for damages, for breach of a contract and he directed the defendant to pay damages, and the measure of damages as fixed by him was the value of the second piece of land which the defendant and her friends had had to surrender to the real owner as the price of retaining the property which was the subject of the kabala in dispute. His judgment was to the effect that she had retained the property which was the subject of the present sale and all that she had lost was the other piece of land the value of which he fixed at Rs. 450 and according to his view of the measure of damage that was the amount to be paid by the defendant.

(3.) When the matter came before the learned Subordinate Judge on appeal he took a different view of the facts and came to the conclusion that a sum of money had been paid to the plaintiff in the suit which was compromised, that the sum of money was in fact Rs. 834 which happened to be the purchase price paid by the plaintiff to the defendant in the matter of the land which is the subject of the present controversy.