Judgement

Appeal (No. 36 of 1933) from a decree of the Court of the Judicial Commissioner (January 19, 1931) reversing a decree of the District Judge of Sukkur (September 11, 1926).

On December 20, 1921, the respondent, in circumstances which appear from the judgment of the Judicial Committee, instituted a suit against the Secretary of State for India in Council and the appellant claiming a declaration of his title to, and possession of, a plot of land. The Secretary of State did not defend the suit. The appellant by an amendment to his written statement pleaded " as the plaintiff has agreed to convey this plot to the defendant, and as possession is with him, he could not legally be evicted."

The trial judge dismissed the suit. Upon appeal to the Court of the Judicial Commissioner the decision was reversed on the ground that the defendants possession could not be referred to the agreement to sell to him. A decree was made for possession and mesne profits, and that compensation be paid to the defendant for improvements effected by him.

1934. June 25, 26. Dunne K.C. and Pringle for the appellant. The plaintiffs agreement to sell the property to the defendant was capable of being specifically enforced when the suit was instituted, and furnishes a valid defence to the claim to eject him Puccha Lal v. Kunj Behari Lal (( 1913) 18 C. W.

N. 445.); Bapu Apaji v. Kashinath Sadoba (( 1916) I. L. R. 41 Bom. 438.); Venkatesh Damodar v. Mallappa Bhimappa (( 1921) I. L. R. 46 Bom. 722.); Karalia Nanubhai v. Mansukhram. (( 1900) I. L.

R. 24 Bom. 400.) The plaintiff, as vendor, was in the position of a trustee for the defendant, and upon principles enacted by the Trusts Act, 1882, ss. 3, 14, 91, could not set up a title adverse to him. The decision of the Board in Ariff v. Jadunath Majumdar (( 1931) L. R. 58 I. A. 91.) is distinguishable, because in that case enforcement of the contract by specific performance was barred by limitation when the suit was instituted, and that fact was made the basis of the judgment. In Currimbhoy & Co. v. Greet (( 1932) L. R. 60 I. A. 297.), the alleged contract was in 1920 and the suit in 1924, so that there also specific performance was barred ; further, as it was held that there was no completed contract any observations relevant to the present question were obiter.

De Gruyther K.C. and Godfrey for the respondent. The appellant was not put into possession under the agreement; he was in possession under the invalid order of the collector, and was a mere trespasser. The English equitable doctrine of part performance, therefore, even if applicable in India at the date of this suit, has no bearing ; nor in the circumstances of the case can the plaintiff be regarded as being in the position of a trustee for the defendant. The decisions in India with regard to a defendant in an ejection suit who is in possession under an agreement by the plaintiff were con flicting before the judgment of the Board in Ariffs case. (( 1931) L. R. 58 I. A. 91.) That judgment, however, makes it clear that, having regard to provisions of the Transfer of Property Act, 1882 (which had not been materially amended when the present suit was proceeding), the defendant can avail himself of the agreement only if it is still enforceable, and only by bringing a suit for specific performance. In the present case no suit was brought, nor did the defendant apply for a stay for that purpose. Moreover, apart from limitation, specific performance could not have been obtained, because the defendant, having obtained a cancellation of the grant, could not show that he was ready and willing to pay the plaintiff the price ; that is essential in a suit for specific performance Ardeshir Mama v. Sassoon. (( 1928) L. R. 55 I. A. 360, 375.) The observations in Currimbhoy & Co. v. Creel (( 1932) L, R. 60 I. A. 297.) show that the principles of Ariffs case apply even if specific performance is not barred when the suit for eject ment is brought ; in that case, altho