SABHAJI Vs. NAWALSINGH

JUDGEMENT

(1.) THE appellant contracted to purchase from respondents 1 and 2 the latter's malik makbuza field No. 181 for a sum of Rs. 450 and paid them Rs. 10 as earnest-money on 8th October 1924. The vendors on their part agreed to complete the transaction by the execution of the sale deed in 15 days' time, and to receive the balance of consideration before the sub-registrar. Ex. P-3 is a letter acknowledging the receipt of Rs. 10 as earnest-money, but it does neither mention any relevant details as regards the terms of the contract of sale nor give the description of the property agreed to be sold by reference to its number, area, name or situation. Within ten days of the contract, the defendants 1 and 2 tempted by a better offer struck a fresh bargain with defendants 3 to 7, whereby they sold the said field for a consideration of.Rs. 600 to the latter and executed sale deeds (Exs. III. D.-1 V. D-1 and VI D 1,) dated 18th October 1924 in their favour, but misdescribed the field sold as bearing No. 161 instead of No. 181 in them and. delivered possession of the right number, i.e. No. 181, to them. Similarly, on the occasion of selling their other fields of inferior quality, bearing Nos. 161 and 186 for Rs. 200 on 1st March 1923, to defendant 8, defendants 1 and 2, through mistake, had entered Section No. 181 instead of No. 161 in the sale-deed (Ex 3 D-2) as the field sold to him; but all the same the vendee took possession of the right land namely Section No. 161. Plaintiff therefore sued for specific performance of his contract of sale and for possession of field No. 181 and impleaded, all the persons interested in denying his claim as parties to the suit.

(2.) THE defence of defendant 1 was a denial of the plaintiff's contract of sale coupled with the affirmance of the title of the other defendants to or in respect of the fields expressly mentioned as sold in their respective sale-deeds : the other defendants except defendants 2 and 4 joined in the defence and also in the assertion that defendants 3 to 7 and defendant 8 were in possession of the fields mentioned in their respective title-deeds as sold to them. For facility of reference I may mention here that it is common ground that fields Nos. 16L and 186 form a block called Ziriwala divided by the Arsi Road, while field No. 181 is near the southern boundary of the village and is called Kala Bavdi. One very significant fact elicited at the trial is that defendant 8 Nihal's own field No. 221-1 adjoins the Ziriwala lands and. that similarly defendant 7's own field No. 182 adjoins No. 181. It is also brought out in evidence that field No. 181 is of better quality and therefore of higher value than field No. 161 and that Nihal held possession of the Ziriwala lands, and defendants 3 to 7 of Kala Bavdi field. This would go to show that possession did not accord with the apparent title which the sale-deeds purported to convey, but all the same, the purchasers who paid higher price got into possession of land of higher value and better quality than that of the other who paid less. The attempt to explain away the discrepancy between title and actual possession by alleging that defendant 8, Nihal, held No. 16i also, as a sub-lessee from defendant 1, had signally failed in the Courts below, and the story of the alleged sub-lease is rejected as an afterthought. The main facts found by the Court of first instance may therefore be briefly stated as under: (a) that defendants 1 and 2 agreed to sell Kala Bavdi field No. 181 to plaintiff on 8th October 1924. (b) that before that date, on 1st March 1923, they had sold field Ziriwala bearing Nos. 161 and 186 intersected by a road to Nihal, defendant 8, and put him in possession of his purchase; (c) that after the date of the plaintiff's contract of sale, and with a view to back out of it, they sold on 18th October 1924, field Kala Bavdi bearing No., 181 to defendants 3 to 7 for a higher price and put them in possession thereof.

(3.) THE plaintiff's success thus depended upon proof of his version that the discription as given in the sale-deed of defendant 8 (Ex. III. D-2) and in those of defendants 3 to 7 (Exs. III. D-1, V-D-1, and VI.-D-1) was mistaken, or, in other words, on proof of the fact that in spite of the prior sale of 1923 which on the face of it purported to convey No. 181, defendants 1 and 2 continued to be the owners of that number and that, though the sale of 1924 in favour of defendants 3 to 7 purported to deal with No. 161, they really transferred No. 181 to them, but that the first purchaser rightly took possession of No. 161, and the later purchasers had wrongly taken possession of field bearing No. 181. The question, therefore, is whether the plaintiff who was not a party to the sale of 1923 or to those of 1924 was or was not bound by the description as given therein and whether on his showing that the description was mistaken in both cases, his contract of sale could operate as regards No. 181 of which defendants 1 and 2 continued to be the owners and defendants 3 to 7 were in possession without title. According to the plaintiff defendants 3 to 7 had notice of his prior contract of sale, and1 this has been found in his favour by the trial Court.