BHARGAVA, J.—This is a second appeal by the plaintiffs in a suit for recovery of Rs. 3500/- along with interest paid by them on 29th May, 1954 to the respondent towards part payment of the sale price of 106 Bighas and 10 Biswas of land situated in village Ghori for which a contract to sell was entered into between them on that date. The lot was to be sold for a sum of Rs. 8500/-. Balance of Rs. 5000/-was to be paid on Phagun Sudi 15, Smt. 2011 corresponding to 8th March, 1955 when the sale deed was to be executed and mutation to be effected in the plaintiffs favour. Two documents were executed regarding the agreement of sale one by the defendant in favour of the plaintiffs marked Ex. 1 and the other by the plaintiffs in favour of the defendant marked Ex. A-l.

2. Plaintiffs case was that they were ready and willing to perform their part of the contract and had approached the defendant a few days before Phagun Sudi 15 as also on the same day and had offered to pay Rs. 5000/- balance of the sale money and asked the defendant to execute the sale deed in their favour and to deliver vacant possession of the land but the latter declined to do so. The plaintiffs, therefore, claimed a refund of Rs. 3500/- along with interest from the defendant.

3. The defendant though admitted the agreement of sale as also the receipt of Rs. 3500/- yet stated that there was no agreement to deliver vacant possession of the land to the plaintiffs and since the plaintiffs were insisting on getting vacant possession, the sale deed was not executed. It was stated that Rs. 3500/- were paid as earnest money which were forfeited by the defendant on account of the plaintiffs breach of contract.

4. Both the courts below have come to the conclusion that there was no contract between the parties to deliver vacant possession of the land and as such breach of contract was committed by the plaintiffs who did not pay the balance of sale price and get the sale deed executed in their favour. They have further held that Rs. 3500/- were paid by the plaintiff as earnest money which were liable to be forfeited on account of the breach of contract committed by the plaintiff.

5. Plaintiffs have now come to this Court in second appeal. The terms of the agreement are reproduced in the judgment of the first appellate court and it is clear that it does not contain any provision for delivery of possession over the land which was agreed to be sold. The courts below have also found on evidence that there was no oral agreement between the parties as alleged by the plaintiffs that vacant possession would be delivered to them at the time of sale. Assuming that it is so the question is whether under the law the plaintiffs were not entitled to demand vacant possession of the land from the defendant. Under sec. 55 (1)(f) of the Transfer of Property Act, "in the absence of a contract to the contrary, the seller is bound to give, on being so required by the buyer, or such person as he directs, such possession of the property as its nature admits. "It follows that a seller of immovable property is under a statutory obligation to deliver possession of the property as its nature admits. Therefore, even if the plaintiffs failed to prove the special contract alleged by them they were still entitled under the law to claim possession from the defendant of the property in the absence of a contract to the contrary. The defendant did not plead that there was any contract to the contrary according to which he was not bound to give vacant possession of the property to the plaintiffs. It was also not pleaded that the land was in possession of the tenants and therefore it was not possible for him to give vacant possession of the land to the plaintiffs. Provisions of sec. 55(1)(f) of the Transfer of Property Act were not at all adverted to by the courts below. Vacant possession can be delivered over agricultural lands admits of no doubt. In, J.I.J. Hyam Vs. M. E. Gubbay (1), (F.B.) it was held that—

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