SAKHARAM SITARAM KUNBI Vs. DARYAOSINGH KALYANSINGH RAJPUT

JUDGEMENT

(1.) THE plaintiff Sakharamr who is the appellant before me, brought a suit for declaration of title and possession of an occupancy field against the malguzar of his village. Joined with the plaintiff was one Himmat who claimed to be a sub-tenant. The plaintiff's story was that he had been wrongfully dispossessed by the malguzar. The malguzar claimed that Sakharam had surrendered the field to him and had been paid Rs. 300 in consideration for the surrender. He held a surrender deed although it was unregistered, but said that the lack of registration was not due to any fault of his. He claimed to have enter-ed into possession before the date on which the plaintiff averred he was ejected and he had successfully resisted proceedings under Section 145, Criminal P.C. The plaintiff alleged that there had been preparations for a surrender but that the surrender was conditional on a compromise being reached in a criminal case in which one Dewa was concerned. The compromise was not reached and consequently the agreement to surrender fell through. The plaintiff denied that he had received the money although the persons attesting the unregistered deed of surrender stated that the money had been paid in their presence. The trial Court decreed the plaintiff's claim, finding that the consideration stated in the surrender deed was not paid and that possession was not delivered under this deed either. Id also found that the surrender deed was executed as part of the compromise in the criminal case against Dewa and that the compromise fell through and that the malguzar forcibly dispossessed the plaintiff. It also held that the doctrine of part performance on which the defendant relied, in view of the fact that the surrender deed was unregistered, had no application. The lower Appellate Court came to an op. posite finding on every one of these points. It found that the consideration of Rs. 300 was paid, that possession was delivered, that the surrender had nothing whatever to do with the criminal case against Dewa, that the defendant did not forcibly dispossess the plaintiff and that the doctrine of part performance applied.

(2.) NOW the majority of these findings are findings of fact and cannot be disturbed in second appeal. But the plaintiff-appellant (Himmat need not now be considered in the case) contests the finding in the lower Appellate Court that the doctrine of part performance applied. What has been stated by the two Courts below on this question can be put very briefly. The trial Court stated: There is no part performance in the case as the defendant has not paid the consideration and he was not put in possession. I hold that the doctrine of part performance does not apply to this case. The lower Appellate Court states: The doctrine of part performance applies to the facts of the present case. It is however contended by the learned Counsel for the respondents that that doctrine did not apply because a surrender was not a transfer. No authority was pointed out for this proposition. A surrender is a sort of a retransfer of tenancy rights to the landlord.

(3.) THERE remains then the question of the refund of Rs. 300. The defendant did plead in his written statement, para. 11, that the plaintiff's claim was not tenable in view of the part performance of the transaction of the surrender, and that at any rate the plaintiff could not be entitled to any decree for possession unless the consideration of Rs. 300 was refunded. The lower Appellate Court has found that the plaintiff has failed to establish that he did not receive Rs. 300. The unregistered surrender deed contains statements by the attesting witnesses that the money was paid in their presence and indeed--a point which the lower Appellate Court has not noticed nor did the trial Court--the plaintiff Sakharam himself stated in the witness-box that the clause in the document to the effect that he had received Rs. 300 was correct. It is contended on behalf of the respondent that he is entitled to a refund of this amount and the learned Counsel for the plaintiff-appellant accepts the contention that he may have to refund this sum. Before Section 53-A, T.P. Act, came into existence, the rights and equities of the parties were determined by considerations laid down in Section 55, T.P. Act, where adjustments on failure to perfect a title became necessary. In view of the plaintiff's admission in the witness-box, it is only equitable that the principles enunciated in that Section should be applied and that the restoration of the holding to the plaintiff should be made conditional on a refund of Rs. 300.