Vendee is entitled to full compensation at present enhanced value of the lands in cases of breach of contract for sale of immovable property.

Anantakrishna Ayyar, J.

1. Defendant 2 sold certain properties to plaintiff 1, Chukkapalli Kotayya and Bollineni Seshayya (father of plaintiffs 3 to 5) under Ex. B dated 2nd January 1902. As the result of O.S. No. 39 of 1918 instituted by one Somayajulu as the adopted son and heir of defendant 1s husband, the plaintiffs lost about two acres of land, it being held that defendant 2 had not acquired a good title to the same himself and that consequently he could not convey a good title in his turn to the plaintiffs with reference to these two acres. The judgment in O.S. No. 39 of 1918 was passed on 30th September 1919. On the ground that the possession of the said two acres was lost on the same date, the plaintiffs instituted the present suit to recover damages from defendant 2 in respect of the same. Defendants 3 to 5 are the sons of defendant 2. Defendants 2 to 5 contended that defendant 2 was merely a benamidar vendee under Ex. A dated 19th May 1900, and that the sale by defendant 2 to the plaintiffs under Ex. B on 2nd January 1902 was a nominal transaction and that he never had any interest In land and that Ex. B was only a nominal transaction. Both the lower Courts found against the said contention and held that Ex. B evidenced a real and genuine transaction and that defendant 2 received consideration from the plaintiffs in respect of Ex. B. The Courts also observed that the plaintiffs were ejected from the lands soon after the decree in Ex. B. On the question of damages the first Court held that the plaintiffs were entitled to recover only the actual price (Rs. 500) paid to defendant 2 under Ex. B for these lands and not the present market value of those lands on the date of their eviction by the decree-holder in O.S. No. 39 of 1918. The lower appellate Court, however, held that the plaintiffs were entitled to the market value of the land at the time of the dispossession, viz. Rs. 2,132. In this second appeal preferred by defendants 2 to 5 the main argument urged by the learned advocate for the appellants, was that the learned District Judge was in error in decreeing the market value of the land at the time of dispossession of the plaintiffs as a result of O.S. No. 39 of 1918. He drew my attention to a statement in Mayne on Damages that English law was not clear on the point and that the American Courts had held that the plaintiffs in such circumstances would be entitled to be paid back the price paid by them and not the present market value of the lands. He referred me also to the decision in Dhanrajee Giriji Narasingh Giriji v. Tata Sons Ltd. A.I.R. 1924 Bom. 473 and to English cases relating to contracts of sale relating to immovable properties, where a vendor not being able to give a good title was directed only to return the advance with interest and not to pay the vendee the (higher) market value when the price of land had increased in the meanwhile. I do not think it necessary to go elaborately into this question, because the question is concluded, as far as I am concerned, by a decision by a Bench of this Court, reported in Dhadha Sahib v. Muhammad Sultan Sahib A.I.R. 1921 Mad. 384. The learned Judges, Abdur Rahim and Oldfield, JJ. held that in assessing damages the vendee is entitled to ask that they should be assessed at the present enhanced value of the lands. At p. 169 the learned Judges observed as, follows The learned District Judge is evidently wrong in saying that in assessing damages the plaintiff is not entitled to ask that they should be assessed at the present enhanced value of the lands. Surely he is entitled to full compensation, so that he might be restored pecuniarily to the same position as if he had recovered the land which defendant 1 sold to him.

2. It has been held that the rule enacted by Section 73, Contract Act, is applicable also to cases of sales of immovable property: see Nagardas Sambhagya Das v. Ahmad Khan [1897] 21 Bom. 175 and Ranchhod v. Man Mohandas [1908] 32 Bom. 165. The Full