BARISAL LOAN OFFICE LTD Vs. SATISH CHANDRA DAS

JUDGEMENT

(1.) The suit out of which this second appeal arises was brought by one Satish Chandra Das against the Barisal Loan Office Limited to recover compensation in respect of certain properties purchased by him from the defendants. The plaintiff had purchased a large number of properties from the Barisal Loan Office Limited by a registered Kobala dated the 2nd Aswin 1335 corresponding to 18 September 1928, for a sum of Rs. 21,900. The Barisal Loan Office Limited had purchased these properties at a sale which took place in certain execution proceedings arising out of a decree in a mortgage suit which the defendants themselves had instituted in order to enforce the mortgage on the properties in question. The Barisal Loan Office Limited was, therefore, in the position of being not only the judgment--creditors, but also the purchasers at the auction which took place in execution proceedings.

(2.) The plaintiff was claiming in the suit compensation in respect of six of the properties comprised in the Kobala on the ground that he could not get possession of those properties from the defendants, who were the vendors. The position was that the Barisal Loan Office Limited, the purchasers at the auction held by the Court, had never taken delivery of possession of these six properties and that long before the date of sale of these properties to the plaintiff the defendants right to take possession through Court had become extinguished by virtue of the provisions of Art. 181, Limitation Act. The plaintiff made the case that as he could not get possession of these six properties and as the Barisal Loan Office Limited was not in a position to put him in possession of those properties he was entitled to have back so much of the purchase price as represented the value of the six properties in question. The defence set up in the suit, briefly stated, was that the defendants had given no guarantee of title and, on the other hand, it had been expressly stipulated in the kobala itself that the defendants as the vendors should not be made liable for any defect of title concerning the properties which they purported to sell to the plaintiff. The learned Subordinate Judge who tried the case accepted the view put forward on behalf of the defendants and he dismissed the suit. The plaintiff there-upon appealed from the decision of the Subordinate Judge of Barisal to the Additional District Judge, 1 Court, Bakargunj and it is against the judgment of that Court that this appeal comes to us. The learned Additional District Judge has summed up the matter in these words: In my opinion there is nothing in the Kobala which stands in the way of the plaintiff elaiming his common law right to get back his money which he paid for property of which he cannot get possession and which the vendor was at the date of the sale legally precluded from putting him in possession.

(3.) He accordingly finds that the plaintiff was entitled to compensation and he has made an order that the case should go back to the trial Court for assessment of the compensation. Mr. Gupta appearing on behalf of the defendants appellants has argued that there is sufficient provision in the kobala itself to exclude the operation of the provisions of Section 55, Sub- section 1 (f), T. P. Act. That subsection when taken in conjunction with the operative part of the section is to the following effect: In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights mentioned in the rules next following or such of them as are applicable to the property sold. The seller is bound to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits.