JUDGMENT

Bennett, J - This is a second civil appeal by a plaintiff, Mt. Firdos Jehan, who instituted a suit for a declaration under Order 21, Rule 103, Civil P.C. The suit was dismissed by the learned Additional Civil Judge and his order was upheld by the learned District Judge of Lucknow in first appeal. The suit was brought in the following circumstances. Mt. Firdos Jehan's husband, Sheikh Habibullah, was the tenant of a house in Lucknow which was owned by Dr. Mohammad Yunus, a sub-assistant surgeon in Gonda. In 1936 Dr. Yunus sued Habibullah for ejectment and arrears of rent. In May 1936, a compromise decree was passed according to which Habibullah was to vacate the house by 31st August. He did not vacate, and on 17th September Dr. Yunus applied for execution of his decree for ejectment. At this stage, Mt. Firdos Jahan, who was living with her husband in the house, appears on the scene. Her story-is that she came to know that Dr. Yunus wanted to sell the house and she got into touch with Dr. Yunus indirectly through one Hakim Shujaat Ali who deputed a man named Mohammad Nazir to go to Gonda and enter into negotiations there with Dr. Yunus for the purchase of the house. Mohammad Nazir saw Dr. Yunus at Gonda on 26th September and arranged with him that Mt. Firdos Jehan should buy the house for Rs. 7800. He paid Dr. Yunus Rs. 500 as earnest money and obtained from him a receipt Ex. 2. This shows that he acknowledged receipt of Rs. 500 from Mt. Firdos Jehan as earnest money for the sale of the house for Rs. 7800 prior to the execution and completion of the sale deed. He was not to receive the wholesale price, the amount due on a mortgage being left dihanid with the vendee. The boundaries of the house are given at the foot of the receipt. This much is admitted by the parties. It is however disputed whether Dr. Yunus knew that Mt. Firdos Jehan was the wife of his tenant. It has been argued on his behalf that he did not and on behalf of Mt. Firdos Jehan that he did. Nothing however turns on this, because Dr. Yunus did not allege any such deception in his written statement. Mohammad Nazir returned to Lucknow on 27th September and gave the receipt to Mt. Firdos Jehan, telling her (according to his evidence) that the matter had been settled and she could take possession, though Dr. Yunus could not come to Lucknow to complete the transaction till 14th October. Mt. Firdos Jehan then began to exercise the rights of an owner. On 29th September she issued orders for the repair of the house to the Indian Engineering Co., and she let out a portion of the house from 1st October. In the following year she paid Municipal taxes. All this is clearly proved.

2. According to Dr. Yunus' story however, it had been arranged between him and Mohammad Nazir that Dr. Yunus should come to Lucknow to complete the transaction on 30th September and not 14th October. As Dr. Yunus himself says that he applied on 27th September for leave of absence from his duties at Gonda on 30th September and 1st October it is doubtful whether he could have informed Mohammad Nazir (who returned to Lucknow on 27th September) that he would meet him in Lucknow on the 30th Dr. Yunus however says that Mohammad Nazir had promised to meet him at 2 P.M. at the Registrar's Office with the sale deed faired out for his signature and that Mohammad Nazir was not there. Then follows the curious statement: "I searched for Mohammad Nazir, the plaintiff, and her husband," curious because Dr. Yunus had just before stated that he did not know who the plaintiff's husband was. In spite of all endeavours Dr. Yunus was unable to find Mohammad Nazir, the plaintiff or her husband. He stated that he waited in the registration office till fairly late in the afternoon and went to the house of Mohammad Nazir at 7 or 8 P.M. He was not at home. Dr. Yunus knew that he was employed as a timekeeper at the East Indian Railway workshop, but he did not go there. He went again to his house at 7 or 7-30 A.M. on 1s