VISHVANATH GANESH JOSHI Vs. BALA KAKU KAPADI

JUDGEMENT

(1.) The plaintiff, by a sale-deed of the 9th of November 1908, took a transfer of certain immoveable property from the 1st and 2nd defendants in which it was stated by the transferors that plots bearing serial numbers 2 to 4 are given for cultivation to Sayyad Ali Bjivasaheb under an oral agreement for one year on a makta (rent) of Rs. 5-12-0, and having paid the consideration money he was obstructed in his attempt to obtain possession of these plots by the alleged yearly tenants who claimed to be permanent tenants. He, therefore, has brought this suit against his vendors and the tenants to recover possession of the land from the tenants or, in the alternative, to recover Rs. 600 as damages from the vendors on account of the misrepresentation in the sale-deed as to the nature of the tenancy. It has been held that the tenants are permanent tenants, and with that question of fact we cannot interfere in second appeal.

(2.) The more difficult question is whether the defendants are liable to pay damages to the plaintiff in consequence of their statement contained in the sale-deed with reference to the tenancy of the occupants of the plots above mentioned. Both Courts have held that the plaintiff is entitled to damages and the lower Appellate Court has differed from the Trial Court only in granting the plaintiff substantial, instead of unsubstantial, damages, The defendants 1 and 2, who are the vendors, expressed their willingness to refund the price and cancel the sale. This, however, the plaintiff is not prepared to consent to. He only wishes for damages in respect of that portion of that land which is held on permanent tenancy. There is no doubt that there has been a serious mis-description of the plots with which we are now concerned, and that the purchaser has got something of less value than what he had reason to believe he was buying from the statement contained in the conveyance.

(3.) Most of the English authorities referred to do not afford much assistance in the case, because there was in them generally a stipulation in the contract made before conveyance entitling the purchaser to compensation for misdescription, and the question has arisen in England whether such compensation can be claimed after the purchaser has proceeded to completion by taking a conveyance. In such cases the question appears to have been now settled in favour of the purchaser by the decision of the Court of Appeal in Palmer v. Johnson (1883) 13 Q.B.D. 351.