Contract rescinded-Vendee filing suit for recovery of advance.

This Revision Petition arises out of the judgment of the learned Subordinate Judge of Guntur in a suit filed by the plaintiff for the recovery of the advance paid by him to the defendant in respect of a contract of purchase of immoveable property.

The contract of purchase is vouched by Exhibit A-1. In that exhibit the parties have agreed on the 24th of July, 1947, that the defendant should sell the property to the plaintiff for a sum of Rs. 19,800, and that on that date a sum of Rs. 500 was paid by way of advance, the defendant agreeing to receive the balance of consideration of Rs. 19,300 from the plaintiff within two months from the date of the contract and to execute and deliver registered to the plaintiff on appropriate stamp paper a sale deed. In and by the terms of the said contract, it was further agreed that the defendant shall put the plaintiff in possession of the property under sale at the time of the registration of"the document. Before the period of two months actually elapsed, i.e., on the 17th of September, 1947, the plaintiff issued a notice to the defendant stating that the balance of consideration was ready and that the defendant might make arrangement for vacating the site agreed to be sold and possession may be delivered to the plaintiff. In the said notice there were also allegations to the effect that the defendant had agreed to keep the site vacant and ready for delivery after removal of the thatched houses, and huts constructed on the said site. It was further alleged in that notice that on the plaintiff having approached the defendant some time before the issue of the notice in question, the defendant had told the plaintiff that it was not immediately possible for him to deliver possession of the properties, that the people who were in occupation of the huts did not appear to vacate them. To this notice a reply was sent by the defendant repudiating all the allegations contained in the said notice. Thereupon the plaintiff filed the suit to recover the advance paid by him as also the sum of Rs. 400 as and by way of damages.

In regard to the claim of damages there was no proof that the plaintiff had actually suffered any damage at all and there is no finding of the learned Subordinate Judge on that point. No question therefore arises in this Revision Petition as to whether the plaintiff was or was not entitled to any damages.

The real point that arises for consideration is, as to whether the plaintiff was entitled to rescind the contract of purchase by him of the defendant’s land when he found that the defendant was not in a position to deliver vacant possession of the site contracted to be sold. It will be seen from the judgment of the learned Subordinate Judge that this point has not been adverted to at all in his judgment. On the other hand, the learned Subordinate Judge has heard evidence of two witnesses on behalf of the plaintiff and one witness on behalf of the defendant on the point as to whether there was any subsequent agreement to deliver vacant possession. The plaintiff’s witnesses spoke to the fact that there was an agreement subsequent to Exhibit A, to the effect that the defendant should vacate the tenants on the land agreed to be sold and deliver vacant possession. As against this there was the evidence of D.W.1 to the effect that the plaintiff himself had agreed to vacate the tenants and take possession. The learned Subordinate Judge did not believe the subsequent agreement set up by the plaintiff and he did not believe the evidence of the plaintiff’s witnesses in that behalf. He was inclined more to believe the evidence of the defendant and believing the evidence of the defendant, which, in his opinion, was more probable, he dismissed the suit.

It has to be observed, however, that the learned Subordinate Judge has not approached the real issue in the case in the proper light. He has not devoted any attention to the import of section 55 of the Transfer of Property Act, which is to the