JUDGMENT

Piggott, J. - This second appeal arises on the following set of facts. In the year 1882 the plaintiff-appellant granted to one Musammat Mahugi permission to build on certain land belonging to him. He took from her a certain agreement, which contained amongst other stipulations lowing, that if at any time she were to vacate the land and to sell any house or houses which she had built thereon, she would according to the ancient custom of the locality pay to the plaintiff one-fourth of the purchase-money. Admittedly the heirs and successors of Musammat Mahugi sold two houses built by the latter on the site in question to the defendant-respondent Ramzan. The present suit was to recover from the surviving heir of Musammat Mahugi and from the said Ramzan one-fourth of the purchase-money. The Court of first instance gave a decree for the ascertained amount, recoverable jointly and severally from the two defendants. Ramzan appealed to the District Judge and the latter dismissed the suit as against him, holding that under the agreement only the heir of Musammat Mahugi was liable to answer the plaintiff's claim. The object of this appeal is to enforce the joint and several liability of the vendee Ramzan.

2. The case seems to turn, as the appellant rightly contends, on the nature of the case set up by Ramzan in the trial Court. In the first and formal part of his written statement he denied, or put the plaintiff to proof of, all the allegations contained in the plaint, except the allegation that he, Ramzan, had purchased under a sale-deed from the heirs of Musammat Mahugi. In his additional pleas, where the case which he specifically desired to set up was outlined, he said that having purchased the houses in question in the month of January 1910 he had paid one-fourth of the purchase-money to the actual proprietors of the site. He said that the plaintiff was not the owner of the site and had no interest in it whatsoever. The question of the ownership of the site has been determined in favour of the plaintiff and is not now in issue. The only question is whether, on the facts stated, the defendant Ramzan was or was not jointly and severally liable with his vendors to see that the proprietor of the site received one-fourth of the purchase money, to which he was entitled under the contract. I think we must take it on the pleadings that Ramzan had notice of the fact that the proprietor or proprietors of the site had a right to receive one-fourth of the purchase-money, whatever might be the basis of that right. He never pleaded that he had paid the whole of the purchase-money to his vendors, either in ignorance of the existence of any right vested in the owners of the site, or on the strength of assurances that the vendors would satisfy the rightful claims of the owners of the site to one-fourth of the purchase- money. What he said was that he had himself been at pains to satisfy the rights of the Zemindars of the land. On this state of pleadings it seems to us that it was not open to the District Judge to find that the defendant was not jointly and severally liable along with his vendors to see that the plaintiff, as proprietor of the site, received the one-fourth of the purchase-money to which he was entitled. If the defendant set up a defence a portion of which was false to his knowledge, he must take the consequences of having done so. If, on the other hand, it be assumed that he in good faith believed the defence set up by him to be true, then the position is that he had paid certain money, which the plaintiff was entitled to receive, under a misapprehension of fact to some other person or persons. That does not acquit him of his liability to account for the same to the plaintiff. On these grounds I think the decree of the lower Appellate Court should be reversed and that of the Court of first instance restored, the defendant-respondent paying the costs in this and in the lower Appellate Court.

Walsh, J.

3. I entirely agree. The jud