1990 Supreme(MP) 726

IN THE HIGH COURT OF MADHYA PRADESH
P.C. PATHAK, J.
Ram Prasad Sahu - Appellant
Versus
Tilokma Devi - Respondent
F.A. No. 220 of 1986 (J)
Decided On : 17-04-1990

Headnote:Transfer of Property Act, 1882 – S. 55 – seller not giving possession of articles sold along with land – purchaser is entitled to refund of price thereof.

        Short Note

       1. The plaintiff has filed this appeal under section 96 of the Code of Civil Procedure against the dismissal of his suit for recovery of Rs. 33, 000/ – as damages.

       2. The defendants/respondents are members of joint Hindu family. Kisanlal is the head of the family, but on account of his old age, deceased Gendlal has been the manager of the family. They owned Kh. No. 3/1 area 24.83 acres, situated in village Chikhli, tehsil and district Durg, on the Banks of Shivnath river, locally known as 'Kisan Badi' with a Pakka house, a 7.5. H.P. motor – pump with network of cement and G.I. pipes for irrigation, and barbed wire fencing all around. On 10 – 6 – 1982, deceased Gendlal offered to sell for Rs. 1 01,500/ – 'Kisan Badi' together with the house, pump set, wire fencing, barbed wire lying in spare in his residential house, two sprayers and other implements of agriculture. The plaintiff accepted the offer and paid Rs. 1,000/ – as earnest money. Gendlal executed an agreement (Ex.P.1) to evidence the contract. On the date of agreement, the house was intact in all respect with doers and windows, roof, etc. and the motor – pump with attached pipes was in working condition. Gendlal, respondent Motibai as guardian of minor Bhukanlal, executed three sale – deeds namely sale – deed dated 26 – 7 – 1982 for consideration of Rs. 15,000/ – in respect of 5 acres of the land in favour of plaintiff Radha Devi, sale – deed dated 1 – 7 – 1983 for consideration of Rs. 20,000/ – in respect of 7 acres of Kh. No. 3/1 in favour of Radha Devi and sale – deed dated 1 – 7 – 1983 for consideration of Rs. 35,000/ – in respect of 12.83 acres out of Kh. No. 3/1 and 0.15 acres out of Kh. No. 29/1 in favour of the plaintiff. They also executed another sale – deed Ex. P.5 on 1 – 7 – 1983 transferring the motor pump with irrigation pipes for sum of Rs. 10.000/ – . The plaintiff further pleaded that he paid Rs.23.000/ – though cheques Ex. P.6 to P.9 for transfer of security deposit of Gendlal with the M.P. Electricity Board in the name of the plaintiff, and as consideration for the super structure of the house, barbed wires, and other agricultural implements. Thus. the plaintiff paid total Rs. 70,000/ – towards the sale of land to him and his wife Radha Devi, and Rs. 33,000/ – for the house, pump set, irrigation G.I. and cement pipes, fencing, Spare barbed wire, sprayers and other agricultural implements.

       3. The physical possession of the lands sold was not delivered until payment of the entire consideration of Rs. 1,01.500/ – . The plaintiff alleged that during the period, intervening between the date of agreement and actual delivery of possession, the defendants removed the roof, doors and windows and left the ruins of the house. They also removed barded wire, cement pipes, G.I. pipes, pump set and other agricultural implements and delivered possession of the lands with ruins of the house only. The plaintiff demanded possession of the removed items also but the defendants declined to comply with the demand. The plaintiff also learnt that there was no security deposit with the M.P.E.B. in the name of defendant Gendlal. On the other hand electric supply was disconnected on account of their default in remitting the electric bill of the sum of Rs. 1,124.53/ – .

       4. The plaintiff assessed the value of the barbed wire removed from the badi those lying in their house, cement and G.I. pipes, doors, windows with their frames, roof and the motor pump set at Rs.31,501/ – . Adding Rs.1,500/ – paid in lieu of the security deposit with the Electricity Beard, the total claim is for Rs. 33,000/ – The plaintiff also claimed interest @ 18 % per annum over the said amount.

       Held; The question for determination is whether the plaintiff is entitled to the decree for the amount claimed in the suit. The plaintiff is the only witness to prove the issue. His statement that the value of the land was Rs.70,000/ – and of the rest, viz. electric, motor pump, pipe, etc. at Rs.31,500/ – is also supported by the sale deeds Ex. P.2, 3 & 4 of which the total consideration is Rs. 70,000/ – . The plaintiff paid total Rs. 23,000/ – through cheques Ex.P.6, P.7, P.9 in the name of Gendlal, and drawn on Den a Bank. These cheques were encased by Gendlal, per certificate Ex.P.10, proved by S. Tappu (PW.2). The plaintiff paid Rs. 10,000/ – as consideration of sale – deed Ex. P. 5. Thus, payment of Rs. 23,000/ – + 10,000/ – total 33,000/ – as value of moveables is proved beyond any doubt. The defendants led no evidence to deny receipt of Rs. 33,000/ – . Thus, amount was paid as sale price of moveables is also established. I have already come to the conclusion that the defendants failed to deliver the pump – set, fencing wire, agricultural implements, and other equipments. Therefore, the plaintiff is entitled to refund of Rs.33,000/ – . The plaintiff put the value of the items not delivered to him at Rs.31,500/ – and Rs.1,500/ – paid in lieu of the security deposit in the name of Gendlal Therefore, a decree for the sum of Rs. 33,000/ – will meet the ends of justice.

       5. I may usefully refer to V.M.R. v. Ramaswami Chettiar and another v. R. Mathukrishna Aiyar and others (AIR 1967 SC 359). In that case, a sale – deed was executed by the guardian for self and on behalf of his minor son undertaking to indemnify any loss that might be caused to purchaser in case sale of his son’s half share should later on be set aside. It was held that the plaintiff could bring suit for damages either on the basis of indemnity bond or for breach of covenant of warranty of title if he was dispossessed from the property. Since the defendants failed to deliver possession of the various items, there is breach of covenant of warranty of title. Therefore, the plaintiff is entitled to refund of the proportionate consideration. The plaintiff is also entitled to interest on the aforesaid amount @ 6 per cent per annum from the date of suit till the date of – realisation. AIR 1967 SC 359 followed. Appeal allowed.