AKBAR FAKIR Vs. INTAIL SAYAL

JUDGEMENT

(1.) This is an appeal by the plaintiff in an action in ejectment commenced on the 10th April 1912. The plaintiff is the admitted proprietor of the land in dispute. The defendants resist his claim on the ground that they came into occupation by his leave and license under an agreement for sale executed on the 12th February 1912, whereby it was stipulated that a conveyance would be executed by the plaintiff in their favour on or before the 13th April 1912. Rupees 80 was fixed as the consideration and the plaintiff was actually paid Rs. 50 on the date of the agreement. The defendants alleged that they subsequently offered the balance but the plaintiff refused to accept the sum and execute a conveyance. The question thus arises, whether this constitutes a sufficient answer to the claim for ejectment.

(2.) On behalf of the plaintiff, reliance has been placed upon the decision of a Full Bench of the Madras High Court in Kurri Veerareddi v. Kuni Bapireddi 29 M. 336 : 1 M.L.T. 153 : 16 M.L.J. 395 (F.B.). That case is an authority for the proposition, that a contract of sale followed by delivery of possession does not, when there is no registered sale-deed, create any interest in the property agreed to be sold and, cannot, even if enforoible at the date of suit or decree, be pleaded in defence to an action for ejectment by one who has a legal title to recover. With all respect, we are unable to accept this principle of law as consonant with the rules of justice, equity and good conscience. A contrary view has been adopted in a long series of decisions of this Court, amongst which may be mentioned Bibi Jawahir Kumari v. Ohatterput Singh 2 C.L.J. 343; Singheeram Poddar v. Bhagbat Ghander Nundi 6 Ind. Cas. 632 : 11 C.L.J. 543; Bepin Behari Hitter v. Tinkowri Pathale 9 Ind. Cas. 374 : 13 C.L.J. 271 : 15 C.W.N. 976; Champahlatika Mitra v. Nafar Chandra 8 Ind. Cas. 44 : 13 C.L.J. 600 : 15 C.W.N. 536; Sarat Chandra Ghose v. Sham Chand Singh 14 Ind. Cas. 701 : 39 C. 663 : 16 C.L.J. 71 Secretary of State for India v. Forbes 17 Ind. Cas. 180 : 16 C.L.J. 217 and Mati Lal v. Darjeeling Municipality 18 Ind. Cas. 844 : 17 C.L.J. 167. These cases are based on the well-recognised doctrine of equity explained by Sir George Jessel, M.R. in Walsh v. Lonsdale 21 Ch. D. 9 : 52 L.J. Ch. 2 : 46 L.T. 858 : 31 W.R. 109 where in pursuance of an agreement for a lease or sale the intended transferee has taken possession, though the requisite documents have not been executed, the position is the same as if the documents had been executed, provided specific performance can be obtained between the same parties in the same Court and at the same time as the subsequent legal question falls to be determined. If we were to accept the contention of the appellant, the result would be this : as soon as the suit for enjoyment is instituted, the defendant must institute in that very Court a counter-suit for specific performance of his contract and obtain a stay of proceedings in the suit for ejectment. When the defendant is successful in the suit for specific performance, he will have the conveyance executed in his favour by the plaintiff or by the Court on his behalf. This will perfect his title and clothe him with authority to continue in possession, with the inevitable result that the suit for ejectment will stand dismissed. Clearly, the Court should not encourage mischievous multiplicity of litigation in this manner. We hold that the plaintiff is not entitled to eject the defendant, nor is he entitled to a decree for the balance of the consideration in this suit because he has not sued to recover the money.

(3.) The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs.