GAURISHANKAR Vs. IBRAHIM ALI

JUDGEMENT

(1.) ONE Kanhaiyalal son of Bamprasad of Gadarwada obtained a, preliminary decree for foreclosure on 10th September 1910, against Gaurishankar in Suit No. 66 of 1908 brought on foot of a. mortgage. The said defendant failed to redeem the mortgaged property, namely fields of absolute occupancy tenure bearing Nos. 415 and 416, area 16.29, rend Rs. 40 and 3 houses including a plot situate in Gadarwada, and the preliminary decree was consequently made final OR 6th December 1911 (Ex. P-10). The decree was later on executed and possession of the fields foreclosed was taken on 12th April 1912, and that of the house property in June and December 1912, as per receipts Exs. P-7, P. 8 and P. 9. The actual possession, however, remained with the judgment-debtor, and Kanhaiyalal looked upon him as being wrongfully in possession, as recited in the receipt dated 27th November 1916 (Ex. P-1) which he executed in favour of the present plaintiff. This receipt evidenced a contract for a sale of the self-same property to plaintiff, for a consideration of Rs. 1,001 by Kanhaiyalal, who was being, wrongfully kept out of possession by the person whom he had foreclosed. Kanhaiyalal had received Rs. 51 from the plaintiff by way of earnest money, and, it was agreed that the balance of Rs. 950 was to be paid at the time of the registration of sale-deed. By the terms of Ex. P-1 and its counter-part Ex. D-8, the vendee was authorized to secure possession of the fields and the houses privately, or, by suit as he thought fit.

(2.) PLAINTIFF called upon Kanhaiyalal to perform his part of the contract of sale by executing a sale-deed in his favour, but for some reason or the other, the document of sale was not secured, and consequently, the sale in his favour was not completed. Exhibits D-7, 9 and 10 are the notices which passed between the-vendor and the vendee in connexion, with the breach of contract of sale. These are dated 16th December 1916, 14th December 1916, and 22nd December 1916, respectively. It appears that the matter remained in suspense after that for some time. In the meantime of 22nd January 1917, Kanhaiyalal executed a conveyance (Ex. D-1) of the property in favour of Gaurishankar and the two minor sons of Laxminarayan Dube his nephew. As one of the purchasers was a judgment-debtor and already held actual possession, there was no formal delivery of possession to the vendees The possession which the judgment-debtor held in spite of its symbolical delivery by Court to the decree-holder in April, June, and December 1912, thus became lawful possession of the vendees entitled to hold it, in their own right, with effect from 22nd January 1917, subject to such rights, as there may be in favour of plaintiff by virtue of his contract of purchase dated 27th November 19i6, (Ex. P-1).

(3.) AS the property covered by the sale-deed. Ex. P-2 was in the possession of the present appellants, the plaintiff-respondent, on 23rd November 1922, instituted the present suit against them, for recovery of possession thereof with mesne profits. The first Court decreed the claim and the lower appellate Court confirmed that decree. Hence this second appeal.