HIRALAL RAY CHOUDHURY Vs. SATYA PRIYA GHOSAL

JUDGEMENT

(1.) This appeal arises out of a suit for the refund of a portion of selami money paid by the plaintiffs to the defendant on account of a lease of some land. The allegations on which the suit was brought were that the defendant advertised for settlement of 74 bighas of asli reformed land alleging that it appertained to his zamindary and belonged to him, that the plaintiff obtained settlement by paying Rs. 1,600 as selami and that when the land was subsequently measured it was found to be only 47 bighas in area and that out of the 47 bighas of land 2 57 acres only was asli reformed land of the defendant's zamindary and the rest was dearah land of which the defendant had not obtained even any dearah settle-ment. On these allegations the plaintiff asked for a decree for refund of Rs. 1,200 odd out of Rs. 1,600 paid as selami presumably on the ground that except for 257 acres the defendant had no title to land dimissed and had no right to settle the same with the plaintiffs. The defence inter alia was that the area settled with the plaintiffs was not 74 but 47 bighas and that the allegation that only 257 acres appertained to the defendants zamindary was not true. The Court of first instance found that only 47 bighas had been settled with the plaintiffs, But inasmuch as out of these 47 bighas only 10 bighas appertained to the plaintiff's zamindary as being asli reformed land and the rest as dearah, the first Court gave a decree to the plaintiffs for a proportionate refund of the selami. On appeal this decision was reversed, the learned Subordinate Judge holding that as the plaintiff's possession had not been in any way disturbed, and as in the case of a lease there was no warranty of title in the lessor, the plaintiffs were not entitled to any refund of the selami. Against this decision the plaintiffs have appealed to this Court.

(2.) The main ground on which the lower appellate Court reversed the decision of the trial Judge, namely, that in the case of a lease there was no warranty of title in the lessor, does not appear to me to be tenable in the present case. The plaintiffs asked for proportinate refund of the selami on the ground that the defendant had no title to the land except in 10 bighas only, and if they could show that the defendant had no title to the remaining 37 bighas they were on equitable grounds alone entitled to proportionate refund. The obligation of a lessor is the same as that of a vendor so far as regards the duty to give a good title though the obligation to give disclosure or to furnish proof thereof may be different (see the judgment of Rankin, C. J., in the case of Jotiprosad Singh Deo V/s. H. V. Low and Co. AIR 1980 Cal 561. In the present case the established fact was that the defendant had no title to 37 out of 47 bighas of land settled with the plaintiff.

(3.) For the reasons recorded above I would allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance with costs to the plaintiffs in proportion in the first Court and full costs in this Court and in the lower appellate Court. Jack, J.