SITAL PRASAD SUKUL Vs. RAMSARAN MISSIR

JUDGEMENT

(1.) This is an appeal by the plaintiff. Ramyad Gosain had a milkiat share in mauza Sawsara which he gave in zarpeshgi to defendants 6 and 7 for Rs. 1,600. He afterwards sold it to defendants 1 to 3 and one Parmanand, a predecessor of defendants 4, 5 and 8, for Rs. 2,750, out of which Rs. 1,600 was kept with the vendees for paying off the zarpeshgidars. In 1922 the plaintiff brought a pre- emption suit against the vendees, and this suit was decreed in his favour in September 1923. Six weeks afterwards he moved the Court for being permitted to deposit Rs. 1,150 only, so as to have Rs. 1,600 in hand for paying off the zarpeshgidars. This prayer was not allowed, and the plaintiff thereupon deposited the entire amount, viz. Rs. 2,750, in accordance with his pre-emption decree. About two months afterwards, the zarpesbgidars moved the Court for permission to withdraw their Rs. 1,600 out of the deposit made by the pre-emptor, and stated that they had already given up possession. This application of the zarpeshgidars was disallowed. A year afterwards, in February 1925, the vendee defendants withdrew the entire amount deposited by the plaintiff. As the zarpeshgidars had given up possession, plaintiff had come into possession of the property and his possession continued for three years when it came to an end because the zarpeshgidars, who had not been paid off in fact, brought suits for rent against the tenants in actual possession of the lands, and the tenants defence that they had attorned to the plaintiff was overruled. Plaintiff therefore brought the present suit in March 1930 for recovery of possession with mesne profits. He also made alternative prayers that he may be given a decree for Rs. 1,600 against the vendees, or that they may be ordered to pay off the zarpeshgidars and the zarpeshgidars ordered (upon such payment) to give up possession in favour of the plaintiff. The trial Court gave the plaintiff a decree for Rs. 1,600 against defendants 1 to 3, holding that defendants 4, 5 and 8 were not liable for the act of their relative who had joined defendants 1 to 3 in withdrawing the deposit made by the plaintiff. Defendants 1 to 3 appealed, and the Additional District Judge, who heard the appeal, came to the conclusion that as against defendants 1 to 3, or defendants 1 to 5 and, 8, the plaintiff was not entitled to succeed unless the judgment in the pre-emption suit was vacated, but that as against defendants 6 and 7 he was entitled to a decree for redemption on payment of Rs. 1,600. I may say at once that such redemption was no part of the relief specifically sought by the plaintiff, and it is easy to see why he does not altogether appreciate the privilege of redeeming the zarpeshgidars by paying Rs. 1,600; for he has already deposited the entire sale-price in pursuance of the pre-emption decree.

(2.) Mr. Mukharji, who has strenuously argued this appeal on behalf of the plaintiff, has urged that the lower Court erred in holding on the authority in Ram Richha Prasad Tewari V/s. Raghunath Prasad Tewari that the plaintiff wasnot entitled to recover the Rs. 1,600 from those defendants who had withdrawn his entire deposit under the pre-emption decree. His argument is that though the plaintiff was not a party to the arrangement between Ramyad Gosain and his vendees, under which the latter kept Rs. 1,600 out of the consideration money in hand to pay off the zarpeshgidars, he is entitled, by reason of their withdrawal of the deposit made by him in their favour in accordance with the pre-emption decree, to hold them to their obligation of paying off the zarpeshgidars. In support of this contention Mr. Mukharji relied on Debnarayan Dutt V/s. Chunilal Ghose AIR 1914 Cal 129 and Dwarkanath Ash V/s. Priyanath Malki AIR 1918 Cal 941, in the latter of which oases, following the decision of their Lord, ships of the Judicial Committee in Khwaja Muhammad Khan V/s. Husaini Begam (1910) 32 All 410, the contention was accepted: That the rule enunciated in Tweddle V/s. Atkinson (1861) 1 B & S 893 is not applicable in this country and that an agreement may in certain circumstances be enforced by a stranger thereto, that is, in what may be briefly described as oases of trust, quasicontract, or near relationship.

(3.) That principle is well established, but; it does not, in my opinion, help the plaintiff in this case, nor could it have been overlooked by Richards, C.J. and Banerji, J. in the Allahabad case of Ram Richha Prasad Tewari V/s. Raghunath Prasad Tewari already referred to. In the two Calcutta oases cited by Mr. Mukharji, there was no decree affecting the rights inter se of the parties and nothing to prevent them from being dealt with according to the rule of justice, equity and good conscience. In the present case, however, as in the Allahabad case, there is the decree which declared the plaintiff to be entitled to pre-emption, for which he was required to deposit in Court the Rs. 2,750 in favour of defendants 1 to 3 and Parmanand. The decree further entitled these defendants to withdraw the entire amount without any reference to the Rs. 1,600 that they had agreed with the original owner to pay (out of the sale-price) in redemption of the zarpeshgi of defendants 6 and 7. Nor can it be said that the plaintiff was not aware, before he obtained such a pre-emption decree, that the zarpeshgi had not been paid off; the trial Court refers to the evidence given by defendant 1 in the pre-emption suit that he had not yet paid off the zarpeshgidars. Notwithstanding this, the plaintiff took no steps to amend the frame of his suit and the relief claimed in it, but obtained a decree, which (as I have already said) required him to deposit Rs. 2,750 and entitled the defendants to withdraw that amount without any reference to the zarpeshgi. In this respect, the case very much resembles the Allahabad case, where the learned Judges reluctantly came to the conclusion that after a decree of this kind, it was not open to them to enforce repayment of the money so held by the vendee to the pre-emptor. It is true that in that case the pre-emptor had after the preemption decree had to pay off the mortgagee and thereupon brought a suit to recover the amount from the vendee who had withdrawn the entire deposit made by the pre-emptor in accordance with the pre-emption decree; but this obviously does not affect the principle to be applied to oases where a plaintiff has deposited the entire sale-price in favour of the vendee in accordance with his pre- emption decree, without troubling to secure his own rights in respect of an outstanding mortgage which the vendee was to pay off out of the sale-price. The learned Judges said that they would have been very glad to have seen their way to uphold the decree for the money passed by the lower Appellate Court against the vendee, but they could not discover any basis upon which the plaintiff could succeed. After referring to the circumstances that the vendee had never enteredinto any contract with the pre-emptor to pay the money to the mortgagee and that the obligation of the vendee was one based on his contract with, the original vendor, they pointed out that the whole trouble arose from the plaintiff not taking care to see that the pre-emption decree was drawn up in proper form directing that they should only pay the amount which the vendee had paid to his vendor.