SUBBAROYAR Vs. KOTTAYA GOUNDAN

JUDGEMENT

(1.) Having regard to Section 54, paragraph 2, of the Transfer of Property-Act and Section 55, Sub-section (4), Clause (a), we are disposed to agree with the argument advanced with much ability by the appellant s learned Vakil that the respondent was not entitled to possession or mesne profits as such before the date of the execution of the registered conveyance in his favour. He is, however, entitled to sue for compensation for the breach of the contract to convey, in addition to suing for the execution of the conveyance, such compensation naturally being the value of the mesne profits which the plaintiff could have obtained between the date when the breach of contract took place and the date when the conveyance is actually executed.

(2.) The plaintiff did pray for that additional relief of compensation in the former suit of 1910 (though he inaccurately called the relief as one for mesne profits) and under Order XXIII of the Civil Procedure Code, he withdrew his prayer for that relief with liberty to bring a fresh suit for the same.

(3.) The present suit is brought substantially for the said claim so withdrawn with liberty.