A person in a position to dominate the will of another and who obtains an unfair advantage by using that position is liable to pay back the benefits received from the other person.

G. B. PATTANAIK, J.

( 1 ) PLAINTIFF was the appellant against a confirming judgment in a suit for possession in respect of a house described in Schedule A of the plaint by evicting the defendant therefrom and for any other appropriate relief to which the plaintiff may be under law and equity. During the pendency of this appeal, the plaintiff having died his legal representatives have been substituted.

( 2 ) ACCORDING to the plaint case, the defendant executed a registered agreement on 31-1-1968 whereunder on consideration of Rs. 20,300/- arranged to be paid by the plaintiff, the plaintiff would be put in possession of the house in question for a period of thirty years and during the said period of plaintiffs possession, the plaintiff would pay annual rent of Rs. 300/- and would have the liberty of constructing a doublestoried building at his own cost. It was also agreed that possession of the house would be delivered to the plaintiff on 1-2-1968 and plaintiff would also have a right of renewal for a further period of thirty years from February, 1998. It was also stipulated that on the failure on the part of the defendant to put the plaintiff in possession on 1-2-1968, the defendant would be liable to pay damage at the rate of Rs. 7/- per day for three months and on expiry of the said period, at the rate of Rs. 8/- per day till possession is delivered. Out of the consideration money of Rs. 20,300/-, Rs. 11,300/- was to be advanced by the plaintiff from "rajkumari Trust Estate" of which the plaintiff was the Managing Director. Another registered tripartite agreement also was executed between the plaintiff, the defendant and "rajkumari Trust Estate" that the defendant would execute a sale deed in favour of the Trust for Rs. 13, 500/- out of which on adjusting the advance of Rs. 11,300/- paid on 31-1-1968, a cash of Rs. 2,200/- would be paid at the time of registration. This document is Ext. 12 and was also executed on 31-1-1968. Apart from the same, a receipt for Rs. 9,000/- acknowledging rent for thirty years at the rate of Rs. 300/- per annum was also granted by the defendant in his own hand which is Ext. 5. It is the plaintiff's case that notwithstanding the aforesaid agreement between the parties, though the plaintiff requested on several occasions subsequent to February, 1968, yet the defendant never put the plaintiff in possession. Plaintiff then served a notice on 25-9-1968 requiring the defendant to pay the arrear damages. On 3rd October, 1968, the defendant intimated that the document on the basis of which the plaintiff claims possession of the house was obtained from the defendant who signed the same without realising its implications and, therefore, the defendant was not in a position to give possession of the house to the plaintiff. It is the plaintiffs assertion that the plaintiff has also paid a sum of Rs. 9,000/- to the defendant which is the entire money payable by the plaintiff for his possession of thirty years. On these assertions, the plaintiff filed the suit for the reliefs as already stated.

( 3 ) THE case of the defendant in the written statement is that one Premraj Patnaik was the original owner of the house in question and the defendant had taken a portion of the said house on rent. On 8-1-1963, Premraj entered into an agreement with the defendant to sell the house for a consideration of Rs. 18,000/ -. But as he did not execute the sale deed, the defendant filed a suit for specific performance against Premraj which was Title Suit No. 9 of 1966 and the present plaintiff, Shri G. S. Misra was his Advocate all through. That suit was decreed on 30-11-1966. It was directed in the decree that on defendant depositing a sum of Rs. 21,750/- by 1-2-1967, said Premraj would execute the sale deed. It was also a condition in the decree that if the defendant failed to deposit the money in time then his right to have specific performance would stand forfeited. The defendant filed an application in the said suit that t