LACHMI NARAIN Vs. HAR SWARUP

JUDGEMENT

(1.) This is a second appeal by the defendants against a decree of the lower Appellate Court awarding the plain, tiffs Rs. 750 on account of 7 bighas 10 biswas with interest as damages for breach of the covenant of title and quiet possession. There was a sale deed executed by the defendants on 23 July 1924. This sale deed transferred zamindari property described as follows: We the executants have therefore, while in a sound state of body and mind and of our own free will and accord, absolutely sold the entire land, situate in Mauza Nagal Jwalapur, Pargana Purwa, District Dehra Dun, which stands recorded in the khewat of the said village in the name of us the executants or in the name of any of us and which comprises 400 bighas and 4 biswas.

(2.) The sale deed was registered on the following day and the plaint set out that on the next day after the registration of the sale deed the defendants made an application for mutation of names in favour of certain persons not parties to the suit in whose favour they had many years previously made a shankalap of 7 bighas 10 biswas of land in the area which was sold. The plaintiffs accordingly applied for mutation for the area less 7 bighas 10 biswas, that is for 392 bighas 14 biswas and mutation was made in this manner for the plaintiffs and for the 7 bighas 10 biswas of land for the shankalapdar. It has been found by the Courts below that the shankalap or grant for religious purposes had been made by the defendants or their predecessors some 60 or 70 years before the suit. The plaint sets out in paras. 7 and 10 that Rs. 750 is the price or value of the 7 bighas 10 biswas of land and that the defendants are liable to put the plaintiffs in possession of the area or to pay to the plaintiffs Ma. 750. As the shankalapdar was not made a party to the suit, no decree for possession was possible; but the lower Appellate Court has granted a decree for Rs. 750.

(3.) Two questions have been raised before us in appeal. The first question was that the defendants were not liable to make any payment on this account to the plaintiffs. The argument is expressed in the second ground of appeal by saying that there was no undertaking by the vendors that actual possession would be given to the vendee over the 7 bighas 10 biswas covered by the rent-free grant and in the fourth ground that the position was confirmed by the conduct of the vendees by assisting the grantees to obtain mutation and by applying for mutation for themselves for the less area. In the written statement of defendant 1, para. 3, additional pleas, it was alleged that before the sale the plain, tiffs were fully aware of the shankalap and that after the execution of the sale deed the rent-free grantees raised some objection and the plaintiffs then made them file an application for mutation. It is to be noted that there was no definite pleading that there was any separate oral agreement between the parties that the plaintiffs were not to get possession of the 7 bighas 10 biswas. The pleading by defendants, both in the appeal to this Court and in the written statement, is merely that the plaintiffs were aware of the shankalap and that there was no positive agreement for giving possession of this area. Now as regards the awareness of the plaintiffs, it was not pleaded that they were aware that this shankalap was part of the land which was sold, nor is there any such finding of the lower Appellate Court. The trial Court applied the presumption and stated: The plaintiffs have zamindari adjoining the village in question. They must have known the existence of these muafi rights on this part of the defendants land.