ABDUL WAHID KHAN Vs. SHER MUHAMMAD KHAN

JUDGEMENT

(1.) THIS is a civil revision by, defendants against a decree of a Small Cause Court. The plaintiff executed a sale-deed of certain zamindari property in favour of the defendants on 3 August 1926. That sale deed contained a covenant that the defendants would pay Rs. 250 of the sale price to a mortgagee of other property. The defendants did not pay and the mortgagee among other remedies obtained an order under Order 34, Rule 6, and realised Rs. 192-13-6 from the plaintiff. The suit was brought on 20 September 1933. The defendants pleaded that they had not paid because the plaintiff did not carry out his part of the sale deed where it was provided that actual possession of certain plots should be given to the defendants. The Court below finds that there was mutation for the defendants in the khewat but that the name of the plaintiff remained in the khatauni for 1337 Fasli and that the plaintiff continued in actual cultivation. The lower Court considered that the defendants had a remedy against the plaintiff by a suit for ejectment or a suit for damages. For this reason the lower Court held that the failure to give possession was no defence. The defence also raised a point of limitation which was held against the defendants by the lower Court. In revision the question of limitation was urged and learned Counsel argued that Art. 116, Limitation Act, would apply and as the sale deed was a registered document the period of limitation would be 6 years from the date of the sale deed as the covenant required that payment should be made by defendants. On that view the suit would be time-barred, as it was more than six years after the sale deed. The ruling on which the defendants rely in Raghubar Rai V/s. Jai Rai (1912) 34 All. 429, deals with a case where the plaintiffs had not actually paid any sum which the defendants should have paid and therefore the plaintiffs could not claim to come under Art. 83 in the suit because they had not yet been damnified. The ruling therefore is in my opinion. no authority for the question whether Art. 83 does or does not apply in a case like the present where the plaintiff has been actually damnified. In Kedar Nath V/s. Har Govind 1926 All. 605 and Suraj Misra V/s. Ghulam Hussain (1920) 63 I.C. 87 and Unkar Singh V/s. Kashi Prasad 1933 All. 386. it has been held that in a case like the present where the plaintiff has actually been damnified in consequence of a breach of agreement by the vendee to a sale deed, the suit will come under Art. 83. Limitation Act. Following those rulings I hold that the present suit was in time.

(2.) I now turn to the question of whether the failure of the plaintiff to give possession can be pleaded as a defence to the present claim. It is true that the defendants may have had other remedies by way of a suit for ejectment or a suit for damages, but the existence of other remedies does not, in my opinion, preclude the defendants from pleading the breach of contract by the plaintiff as a defence. The suit of the plaintiff is founded on the breach of contract of a condition in the sale deed. The defendants have shown to the satisfaction of the lower Court that the plaintiff himself also broke the conditions of that sale deed. Under these circumstances it appears to me that the defendants are entitled to put forward this ground as an adequate defence. The lower Court has found that the plaintiff continued in actual cultivation, that even 7 years after the sale deed the plaintiff still remained in possession of the plots which he was bound to hand over to the defendants in accordance with the terms of the sale deed. Learned Counsel for the plaintiff-respondent has made some suggestion that because the sale deed refers in general terms to sir. etc., therefore some plots may be sir. but no such point was shown by the plaintiff to the lower Court either by way of pleading or evidence. It appears to me that the failure of the plaintiff to give the plots in question to the defendants is a sufficient answer to the claim of the plaintiff. The amount which the plaintiff has paid is not much being only Rs. 192-13-6. The onus lay on the plaintiff to show that the damage which the defendants sustained from failure to deliver possession was a smaller sum than that amount and the plaintiff did not show that this was so. Under the circumstances I consider that the suit of the plaintiff should be dismissed and I dismiss it with costs throughout.