Judgment

SHAH, J. : By a registered deed of lease dated May 19, 1927 which was renewed on January 30 1947 the Delhi Improvement Trust granted leasehold rights for 90 years to one Dr. M. M. Joshi in respect of a plot of land No.3, E Block, Qarol Bagh, Delhi, admeasuring 2433 sq. yards. Dr. Joshi constructed a building on the land demised to him. Chandrawati, widow of Dr. Joshi as guardian of her minor son Murli Manohar by sale-deed dated April 21, 1947 sold the leasehold rights in the land together with the building to Lala Balkrishan Das who will hereinafter be referred to as Plaintiff for Rs.63,000/-. By an agreement dated March 21, 1949 the Plaintiff contracted to sell his rights in the land, and the building to Seth Fateh Chand-hereinafter called the defendant . It was recited in the agreement that the plaintiff agreed to sell the building together with pattadari" rights appertaining to the land admeasuring 2433 sq. yards for Rs.1,12,500/- and that Rs.1,000/- were paid to him as earnest money at the time of the execution of the agreement. The conditions of the agreement were :

"(1) I, the executant shall deliver the actual possession, i.e. complete vacant possession of Kothi (bungalow) to the vendee on the 30th March? 1949, and the vendee shall have to give another cheque for Rs. 24,000/- to me: out of the sale price.

(2) Then the vendee shall have to get the sale (deed) registered by the 1st of June, 1949. If, on account of any reason, the vendee fails to get the said sale-deed registered by the 1st June, 1949, then this sum of Rs. 25,000/- (twenty five thousand) mentioned above shall be deemed to be forfeited and the agreement cancelled. Moreover, the vendee shall have to deliver back the complete vacant possession of the kothi (Bungalow) to me, the executant. If due to certain reason, any delay takes place on my part in the registration of the sale-deed, by the 1st June, 1949, then I, the executant, shall be liable to pay a further sum of Rs. 25,000/- as damages, apart from the aforesaid sum of Rs. 25,000/- to the vendee, and the bargain shall be deemed to be cancelled." The southern boundary of the land was described in the agreement as "Bungalow of Murli Manohar Joshi".

2. On March 25, 1949 the plaintiff received Rs.24,000/- and delivered possession of the building and the land in his occupation to the defendant, but the sale of the property was not completed before the expiry of the period stipulated in the agreement. Each party blamed the other for failing to complete the sale according to the terms of the agreement. Alleging that the agreement was rescinded be cause the defendant had committed default in performing the agreement and the sum of Rs.25,000/- paid by the defendant stood forfeited, the plaintiff in an action filed in the Court of the Subordinate Judge, Delhi, claimed a decree for possession of the land and building described in the plaint, and a decree for Rs.6,500/- as compensation for use and occupation of the building from March 25, 1949 to January 24,1950 and for an order directing enquiry as to compensation for use and occupation of the land and building from the date of the institution of the suit until delivery of possession to the plaintiff. The defendant resisted the claim contending inter alia that the plaintiff having committed breach of the contract could not forfeit the amount of Rs. 25,000/- received by him nor claim any compensation. The trial Judge held that the plaintiff had failed to put the defendant in possession of the land agreed to be sold and could not therefore retain Rs. 25,000/- received by him under the contract. He accordingly directed that on the plaintiff depositing Rs. 25,000/- less Rs. 1,400/- (being the amount of mesne profits prior to the date of the suit) the defendant do put the plaintiff in possession of the land and the building, and awarded to the plaintiff future mesne profits at the rate of Rs. 140/- per mensem from the date of the suit until delivery of posses