The main legal point established in the judgment is that a disturbance of possession and enjoyment affects the title conveyed and constitutes a breach of the implied covenant for quiet enjoyment under S.55(2) of the Cochin Transfer of Property Act.

1. The appellant sued to recover the sum of Rs. 3,750/- and interest from the first defendant, who may be referred to as the respondent, and from the estate of his deceased brother Poppattalal, represented in the suit by his widow and children, who are respondents 2 to 4. Poppattalal and the respondent sold a property to the appellant by Ext. P-2 in the year 1119, for a consideration of Rs. 3,750/-. At the time, there was in force, a contract for the sale of the property to Mohammed for Rs. 1,651/- of which they had received Rs. 1000/- in advance. Mohammed sued the respondents and others, including the appellant and Pw.1 the assignee of the property from the appellant under Ext. P-1, in O.S. 105 of 1121 for specific performance of the contract. On the impleadment of Pw.1 on the basis of Ext. P.1, the appellant was removed from the array of parties. In second appeal, specific performance was allowed and the case was remanded for passing a final decree on settlement of the value of improvements, if any, payable to Pw.1. Before the final decree was passed, the appellant commenced the suit from which this second appeal arises, on the 22nd January, 1957, for refund of the consideration paid under Ext. P-2. Pending this suit, Mohammed took delivery of possession of the property in execution of his decree, under Ext. P-12 delivery receipt dated the 6th December, 1958. It was found in the earlier suit and it was not questioned in this second appeal, that the appellant when he took Ext. P-2, had notice of the contract for sale to Mohammed. This suit was decreed by the Subordinate Judge, but was dismissed in appeal by the District judge, chiefly on the ground, that the contract for sale did not create an interest in the property in favour of Mohammed, and that title to the property remained with the appellant, because no sale deed has yet been executed in favour of Mohammed as decreed, although as held, the property has been delivered to him in execution.

2. In second appeal it was contended for the appellant, that possession of the property having been delivered in execution of the decree obtained by Mohammed, there has been a breach of the covenant for title implied by S.56 (2) of the Cochin Transfer of Property Act, which was in force at the time, and which may be referred to as S.55 (2) of the Indian Transfer of Property Act, and that the covenant for title so implied is comprehensive to include a covenant for quiet enjoyment. The decided cases on the subject to which my attention has been drawn, are uniformly of the view, that the covenant implied by S.55 (2) of the Indian Transfer of Property Act, includes a covenant for quiet enjoyment. The principle deducible from them appears to be that title which is covenanted for under the section includes, depending on the nature of the title conveyed, the right of the vendee to be in possession and enjoyment of the property and so a disturbance of such possession and enjoyment necessarily affects the title conveyed and constitutes a breach or infringement of the covenant implied by the section. I see no reason to differ from the view, that if the right to be in possession and enjoyment is part of the title conveyed, a disturbance of such possession and enjoyment may be deemed to affect the title. That a covenant for title under S.55 (2) includes a covenant for quiet enjoyment was ruled by a Full Bench of the Nagpur High Court in Kashirao v. Zabu (AIR. 1932 Nagpur 5). This was followed in later decisions of that court reported in Ambadas v. Wamanrao (AIR. 1934 Nagpur 16) and Vishwanath v. Deokabai (AIR. 1948 Nagpur 382) the latter of which was by a Division Bench. Two other cases taking the same view are Noor Mohomed v. Lilaram (AIR. 1928 Sind 61) and Abdul Rahim v. Kadu (AIR. 1930 Sind 12). Quite recently, the High Court of Jammu and Kashmir held in Gwasha Lal v. Kartar Singh (AIR. 1961 J & K. 66), that the covenant implied in S.55 (2) is not only that the vendor had a good titl