Nannapaneni Narasingarayudu and Others vs Nannapaneni Ankineedu (died) and Another

Anantanarayana Ayyar, J.—These two appeals arise out of a common judgement and decree in O. S. Nos. 12 and 13 of 1953 on the file of the Subordinate Judge Tenali.

O. S. No. 12 of 1953 is a suit filed by Nannapaneni Ramamma for recovery of Rs. 12,983-4-3 against four defendants which is made up of (a) Rs. 8,880, value of the properties as on 18th April, 1952, the date when the plaintiff was dispossessed; and (b) Rs. 4,103-4-3, mesne profits ascertained in the final decree proceedings as payable by this plaintiff in I.A. No 1755 of 1952, in O. S. No. 9 of 1945, with proportionate costs. The learned Subordinate Judge awarded a decree in favour of the plaintiff for Rs. 5,240-2-0 against the first defendant and for Rs. 6,288-2-3 jointly and severally against defendants 2 to 4 with proportionate costs. ''Defendants 3 and 4 have consequently preferred A. S. No. 13 of 1955 against the above judgment and decree. Plaintiff has filed a Memorandum of Cross-objections in so far as it went against her.

O. S. No. 13 of 1953 is a suit to recovery Rs. 7,538-12-7 against three defendants which consisted of (a) Rs. 5,120 as damages as the market value of the suit property on 18th April 1952, and (b) Rs. 2,418-12-7 as damages ascertained as payable by the plaintiff to the decree-holder in O. S. No. 9 of 1945 with proportionate costs. The learned Subordinate Judge gave a decree in favour of Nannapaneni Ankineedu for Rs. 6,738-12-7 against defendants 1 to 3 in that suit with proportionate costs. Defendants 2 and 3 have preferred A.S. No. 12 of 1955 against the above judgment and decree in so far as it went against them. The plaintiff has filed the cross-objections as regards the disallowance of interest subsequent to the date of suit on the amount decreed.

The appellant in both the appeals are the same persons. Nannapaneni Ramamma, plaintiff in O. S. No. 12 of 1953, is the mother of the sole plaintiff Nannapaneni Ankineedu in O. S. No. 13 of 1953. There are four defendants in O. S. No. 12 of 1953 and three defendants in O. S. No. 13 of 1953. Defendants 3 and 4 in O. S. No. 12 of 1953 are defendants 2 and 3 in O. S. No. 13 of 1953. Nannapaneni Ramakrishnayya died during the pendency of the appeals and in his place Nannapaneni Venkataratnam and Nannapaneni Bullamma were brought on record as his legal representatives as per the order of this Court in C.M.P. Nos. 6643 and 6644 of 1955, dated 24th November, 1955. For the sake of convenience, the parties are referred to in this judgment by their names.

The main allegations in the plaint in O. S. No. 12 of 1953 are briefly to the following effect. Akkayya and Achayya the fathers of Nannapaneni Narasingarayudu and Nannapaneni Ramakrishnayya, for themselves and as guardians of their minor sons, executed a registered sale deed Ex. B-1, dated 3rd June, 1900, in favour of one Barla Raghavulu. The said Raghavulu had four sons, namely (1) Bhadrayya, the father of Barla Venkatasubbiah alias Suranarayana, (2) Virayya, (3) Subbayya and (4) Rattayya, the husband of Barla Mahalakshmi. Rattayya died leaving behind him Barla Mahalakshmi. Raghavulu and his three surviving sons executed a gift deed Ex. B-2, dated 28th December 1932, settling land which is item 1 in O. S. No. 12 of 1953 towards the maintenance claim of Barla Mahalakshmi. Under that deed, Mahalakshmi got half of it absolutely and had only a life interest in the other half, with a vested remainder to Akula Mahalakshmi, the daughter of Bhadrayya, after the death of Barla Mahalakshmi, The said Akula Mahalakshmi released her vested remainder to Barla Mahalakshmi under a sale deed Ex. A-13, dated 1st December, 1989.

Thus, Barla Mahalakshmi became the absolute owner of this item of property and she sold that item to Nannapaneni Ramamma under Ex. A-1 dated 1st December, 1939. Item 2 of the plaint schedule, which is the only other item concerned in O.S. No. 12 of 1953, was sold by Barla Bhadrayya, to whom it had come under the family partition to Ramamma. Thus, Ramamma became entitled to both the items of property concerned in O. S. No. 12 of 1953. Veerayya sold the item of property which fell to his share, to Ankineedu by the sale deed Ex. A-3, dated 21st September, 1942. The lands concerned in both the suits were the lands covered by the sale deed Ex. B-1 dated 3rd June 1900 already referred to supra.

One Nagalla Guruvayya issued notice to Ramamma claiming that the suit properties were those of one Nannapaneni Pichayya which devolved after his death upon his widow Seshamma and that on her death on 8th July, 1944, the same lands devolved upon the said Guruvayya as the nearest reversionary heir to the estate of Pichayya. Ramamma gave a reply to that notice and also issued a notice to her vendors in order to support her title. The said Nagalla Guruvayya filed O. S. No. 9 of 1945 on the file of the Sub-Court, Tenali, against Ramamma, Nannapaneni Narasingarayudu and Nannapaneni Ramakrishnayya for possession of the suit property and for mesne profits from 1944 when Seshamma died. In that suit, Ramamma was impleaded as party in possession of lands which she had purchased under Ex. A-1 and A-2. Similarly, Ankineedu was impleaded as person in possession of the property which he had purchased under Ex. A-3. Narasingarayudu and Ramakrishnayya were also joined as parties in possession of some other items, concerned in O. S. No. 9 of 1945; they were not impleaded as having anything to do with the items which are now concerned in O. S. Nos. 12 and 13 of 1953.

Narasingarayudu and Ramakrishnayya contested the suit as regards the items of land for which they were joined. Ramamma and Ankineedu also resisted that suit but in vain. Nagella Guruvayya obtained a decree against Narasingarayudu and Ramakrishnayya for possession as well as mesne profits, and also against Ramamma in respect of her items. Messe Profits were determined in I.A. No. 1755 of 1952 on 5th August, 1953. Narasingarayudu and Ramakrishnayya along with some others filed A. S. No. 250 of 1947 on the file of the Madras High Court in respect on the items in their actual possession against the decree in O. S. No. 9 of 1945. That appeal was allowed. Ramamma and Ankineedu did not file any appeal. Ramamma discovered that the defendants evaded their responsibility in upholding her title and possession in respect of the suit property and filed a Memorandum of cross-objections which she was entitled to file as per the law in force then (viz., as laid down in Munisami v. Abbu Reddy, ILR 38 Mad 705: (AIR 1915 Mad 648) (FB)).

During the pendency of the cross-objections the position of law regarding the matter became changed by a later Full Bench decision of the Madras High Court in Vadlamudi Venkateswarlu and Another Vs. Ravipati Ramamma and Another, whereby cross objections could not be validly filed in appeals filed by persons who were respondents in the appeals concerned, as against the other respondents. The Madras High Court allowed A.S. No. 250 of 1947 but dismissed the cross-objections.

The decree in O. S. No. 9 of 1945 thus stood confirmed in respect of the suit properties, in view of the prevailing law laid down in Vadlamudi Venkateswarlu and Another Vs. Ravipati Ramamma and Another, , it is certainly beyond dispute that, if an appeal had been filed as regards the properties concerned in these proceedings, namely, items 13 and 14 in O. S. No. 9 of 1945, it would have been successful. For, the Madras High Court found in A. S. No. 250 of 1947 that Nagella Guruvayya had no title or right to the property under the title put forward by him as reversioner. After the change of law, by the passing of the Full Bench decision referred to supra, it was open and possible for Ramamma and Ankineedu to apply for conversion of the cross-objections into an appeal. But they failed to do so. Nagella Guruvayya executed the decree and obtained possession of the lands from Ramamma and Ankineedu. He also collected mesne profits from them.

The result was that Nagella Guruvayya was able to have the benefit of the decree in O. S. No. 9 of 1945 to obtain the lands in these proceedings though he had no title to them apart from the fact that the decree which he obtained was not set aside as regards those items and Ramamma and Ankineedu, who have really obtained title by valid purchase from lawful owners, lost the land. Ramamma alleged that the defendants were under a legal obligation to secure free title and quiet enjoyment of the suit properties to her, both by reasons of the covenants in the sale deeds, as also by virtue of the statutory obligation imposed on them u/s 55(2) of the Transfer of property Act. There was a breach of those obligations by defendants 1 to 4. Consequently, they were liable to pay Rs. 8,880/- to Ramamma and Rs. 5,120/- to Ankineedu as detailed above.

8-9. The first defendant filed a written statement, contending inter alia that there was no covenant for good title and possession in the sale deed, dated 3rd June 1900, that there was again no covenant for good title, either express or implied, in the gift deed dated 28th December, 1932, in respect of item 1 of the plaint schedule. She denied that Ramamma was dispossessed or the suit properties in execution of the decree in O. S. No. 9 of 1945. It was further alleged by her that Ramamma and Ankineedu colluded and conspired with the said Guravayya and entered into a champerious agreement and did not give even proper replies to the registered notices issued by the said Guravayya. They did not contest the suit O. S. No. 9 of 1945 seriously but put up only a show of fight. They did not even prefer an appeal against the decree in O. S. No. 9 of 1945, while the other contesting defendants filed A. S. Nos. 250 and 311 of 1947.

The finding given by the High Court, that mere was no proof that the last male holder Pitchayya died possessed of any of the suit properties in O. S. No. 9 of 1945 excepting items 1 and 2 therein is binding on Ramamma. Narasingarayudu and Ramakrishnayya had no right to file an appeal on behalf of Ramamma and Ankineedu nor were they under any obligation to file any such appeal. The filing of the cross-objections is an ingenious attempt to explain away the laches on the part of Ramamma and Ankineedu in not filing an appeal against the decree in O. S. No. 9 of 1945. She is not responsible either jointly or individually along with the other defendants to make good the title for item 2 of the plaint schedule with which she had nothing to do. Ramamma is not entitled to any damages and the damages claimed are excessive. Lastly, she contended that the claim for damages on account of mesne profits in O. S. No. 9 of 1945 is premature and is not sustainable.

The allegations in the written statement of defendants 2 to 4 are mutatis mutandis the same as that of Barla Mahalakshmi.

In the additional written statement of defendants 2 and 3, it was pleaded that they did not commit any breach of obligations cast on them, that they are not liable to pay any damages towards the profits ascertained in the final decree proceeding in I. A. No. 1755 of 1952 in O.S No. 9 of 1945, that Ramamma and Ankineedu colluded with Guravayya in I.A. No. 1755 of 1952 and were not diligent enough in contesting that application. Only a show of fight was put up. Ramamma and Ankineedu submitted to the decree for profits, without filing an appeal though there were grounds for filing an appeal. They further contended that though the liability was fixed to give a colour of genuineness, nothing was intended to be paid. They averred that as Ramamma and Ankineedu did not incur any loss, they are not entitled to claim any damages on account of the ascertainment of mesne profits.

The material allegations in the plaint in O. S. No. 13 of 1953 are shortly these. Ankayya, the undivided father of Narasingarayudu, for himself and as the guardian of the minor, and Achavva the undivided father of Ramakrishnayya for himself and as the quardian of the minor, sold the suit property besides some other properties to late Barla Raghavulu, under a registered sale-deed, dated 3rd June, 1900. The suit property fell to the share of Barla Veeriah, the second son of Raghavulu, in their family partition, and Veeriah sold the same to Ankineedu under the registered deed, dated 21st September, 1942. The rest of the case is substantially similar as in O. S. No. 12 of 1953. Ankineedu also lost possession of the suit property on 18th April, 1952, in execution of the decree in O. S. No. 9 of 1945. Ankineedu therefore, laid claim for the reliefs mentioned above.

12a. The pleas raised by the defendants in their written statements as well as the additional written statement are principally the same as those raised in O. S. No. 12 of 1953.

About six issues were framed in O. S. No. 12 of 1953 and another six issues were framed in O. S. No 13 of 1953. The two suits were tried together as per the order on the joint memo, dated 15th July 1954 and the common evidence is recorded in O. S. No. 12 of 1953.

The lower court awarded a decree O. S. No. 12 of 1953 in favour of Ramamma in part. Similarly, the learned Subordinate Judge granted a decree in part in O. S. No. 13 of 1953 in favour of Ankineedu against all the defendants with proportionate costs. The third and fourth defendants have appealed. Barla Veerayya had not filed any appeal. Ramamma and Ankineedu also preferred memorandum of cross-objections in each appeal. Both the appeals and the cross-objections were heard together by common consent.

Mr. A. Sambasiva Rao, learned counsel for the appellant has raised the following contentions:

That there was no warranty of title under Ex. B. 1, dated 3rd June, 1900.

That the plaintiffs are not entitled to any relief, as the loss sustained by them was due to their ladies and their failure to diligently prosecute their case in O. S. No. 9 of 1945.

That the crucial date for the purpose of ascertaining the quantum of damages fixed by the lower court is not correct.

That the lower court erred in awarding mesne profits.

We shall deal in seriatim with the various contentions raised above.

As regards the question of warranty of title, learned counsel for the appellants points out that in Ex. B. I, the sale deed executed by Akkayya in favour of Barla Raghavulu, there is no covenant of title. The relevant recitals in that document are:

... We have relinquished our right and interest and have delivered possession of to you... In such enjoyment, neither we nor our heirs shall raise any dispute against you or your heirs.

Reliance is placed on these recitals in supports of the above contention. It is true that there is no positive recital of express covenant of title in Ex. B. 1. But, this does not affect the implied covenant of title which follows from Section 55(2) of the Transfer of Property Act. That section reads:

In the absence of a contract to the contrary, the buyer and seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following or such of them as are applicable to the property sold:

x x x x x

The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same.

Under the above section, every sale for consideration carries with it a covenant for title. Such a covenant is implied. It is open to the vendors to contract themselves out of the covenant for title. That contract to the contrary must be express. As pointed out in Digambar Das v. Nishibala Debi, 8 Ind Cas 91 (Cal):

When reliance is placed upon an express contract to exclude the operation of the statute, the contract to be binding must be in plain and unambiguous language.

In the present case, there is no express language under the sale deed Ex. B. 1 which can exclude the statutory covenant of title u/s 55 (2). We find that there was warranty of title u/s 55(2) of the Transfer of Property Act.

It is then argued that the plaintiffs are disentitled to any relief as they failed to diligently prosecute their case in O. S. No. 9 of 1945. As has been pointed out in Dhulipudi Namayya Vs. The Union of India, , it is undoubtedly the duty of a plaintiff to mitigate the damage caused by the defendant''s breach. The plaintiff cannot claim to be compensated for loss which was due to his own failure to behave reasonably after the breach. The test to determine whether his behaviour is reasonable is to see whether he did what a prudent man might have reasonably done if the whole expense was to fall on himself. The plaintiff must have acted in a way legitimately open to blame. The question must always be whether what was done was a reasonable thing to do, having regard to all the circumstances and one test is what a prudent person uninsured i.e., not having a claim for compensation or indemnity on any one would do under the same circumstances.

In AIR 1938 743 (Lahore) the vendors of certain immoveable property undertook to indemnify their vendees, if they suffered any loss or damage on account of any person putting forward a claim to the property sold, and subsequently a mortgagee from the original owner of the property brought a suit on the mortgage and the vendees paid certain sum of money to the mortgagee to save the property sold to them. It was held that the vendees were not legally entitled to recover the sum so paid and the expenses of the litigation from their vendors since they were negligent in their defence to the mortgage suit and did not raise proper pleas available to them and that there was really no cloud on the title of their venders and with a little diligence exercised on the part of the plaintiffs, the cloud that was cast on the title of the vendors could have been cleared up. Secondly, by withdrawing their application for leave to appeal to His Majesty-in-Council, the plaintiffs lost a valuable opportunity for having the liability imposed on their property removed. They were unnecessarily scared out of their wits and they paid an abnormal large sum to secure their freedom.

In this case also, if the plaintiffs had filed an appeal against the judgment and decree in O. S. No. 9 of 1945, they would have succeeded in defending their title and retained the property. Even at a later stage, after the Full Bench decision of the Madras High Court, the plaintiffs could have applied for and secured conversion of their cross-objections into an appeal but they failed to do so. By such failure, they lost a valuable opportunity such as the plaintiffs in AIR 1938 743 (Lahore) did by withdrawing their application for leave to appeal to His Majesty in Council. Further, by not filing an appeal in the first instance and by failure to get the cross-objections converted into an appeal, beyond doubt or dispute they failed to act as they would have acted if they did not have remedy against their vendors u/s 55(2) of the Transfer of Property Act and as such, they did not act as prudent people.

On behalf of the plaintiffs, it has been contended that they acted diligently. It is true that the plaintiffs gave notices Exs. A-6, A-7 and A-8 to defendants 1 and 2 and Veerayya asking for help in contesting the suit. The plaintiffs undoubtedly acted diligently upto the stage of the pronouncing of the judgment in O. S. No. 9 of 1945. After that, they issued notices Exs. A-9, A-10 and A-11 to defendants 1 and 2 and Barla Veerayya saying that they had lost their right in the property in view of the passing of the decree in O. S. No. 9 of 1945 and that according to law, defendants 1 and 2 were liable to Ramamma for the loss sustained by her and Veerayya to Ankineedu.

The learned Advocate for the plaintiffs concedes that there was initial negligence on the part of the plaintiffs by not preferring an appeal but contends that when once the plaintiffs gave notices Exs. A-9, A-10 and A-11 to defendants 1 and 2 and Veerayya, the latter three persons ought to have filed the appeal. He also urges that the initial negligence of the plaintiffs was cured or rectified by their filing cross-objections which were as efficacious and an independent appeal, as per the law in force when the cross-objections were filed. The crucial question is whether a diligent litigant, who is faced with an adverse decree, would keep quiet with the hope that some one else would file an appeal and afterwards he can file a cross-objection. We do not believe that a diligent litigant would or would have kept quiet like that.

It is then contended that the plaintiffs engaged an Advocate and left the matter in his hands and hence the plaintiffs were not responsible for their advocate not filing an appeal. Reliance is placed on a decision of the Madras High Court in Daiva Ammal and Others Vs. Selvaramanuja Nayakar and Others, That was a case where the gardian of a minor, engaged a lawyer to conduct the case. It was held that so long as the lawyer is sufficiently competent and is provided with sufficient funds to conduct the ease, it is not reasonable to hold the guardian responsible if the lawyer fails to raise a point of law which may well have been raised by him and the guardian cannot he made responsible for the intelligence or the honesty of the lawyer. It was further pointed out that if the guardian after defending the suit bona fide and conducting it to the best of his ability elected to abide by the decision given by the Court, without preferring an appeal against it, holding it to be correct and that an appeal would be useless, he could not be said to have acted negligently in not preferring an appeal.

That decision does not avail the plaintiffs in the present case because their position is substantially different from that of a guardian who engaged a lawyer to conduct a case on behalf of his minor ward. The plaintiffs have to act as persons of prudence, if they are to get damages from the vendors by enforcing liability u/s 55(2) of the Transfer of Property Act. But a guardian acting on behalf of a minor was not bound to come up to such standard. When other defendants in O. S. No. 9 of 1945 were filing appeals, it must have been known to the plaintiffs that there must have been a very good chance in the appeal. No evidence has been let in to show that an Advocate advised the plaintiffs that no appeal need or should be filed. On the other hand, Ankineedu has deposed as P. W. 4:

.....We thought of preferring an appeal against the decree in O. S. No. 9 of 1945. But we were told that it would cost much. As we could not bear these expenses, we dropped the idea of filing an appeal. Then we gave notices, Exs. A-9 to A-11. There were no replies to those notices. I got notice Ex. A-12 issued. I received notice from High Court, Madras. I went to Madras. I was told that with less expenses cross-objection could be filed and so we filed cross-objections. The cross-objections were dismissed.

In cross-examination he stated:

I did not ask my vakil in O. S. No 9 of 1945 to apply for appeal copies. I consulted Sri G. V. Choudary of Guntur Bar. I did not show him any copies. He said appeal would cost much. I did not put it to Barla people that I was not going to appeal against O. S. No. 9 of 1945 as I was told that appeal would cost much. One Sri Gopalakrishnamurthi told me that cross-objections could be filed with less costs. I did not give any notice to Barla people whether they would prefer cross-objection or not. I did not find out whether Nannapaneni people were going to file any appeal against O. S. No. 9 of 1945. Sri Gopala Rao was my vakil in execution of the decree in O. S. No. 9 of 1945

From the above, it is abundantly clear that the plaintiff did not seriously contemplate the idea of filing an appeal and did not even take any steps to obtain certified copies with a view to consult any lawyer to give concrete advice, on the basis of those copies, as to whether appeal could be filed. The explanation that they did not file appeal as it would cost much is not sufficient justification for not filing an appeal. Court-fee would have to be paid for cross-objections as for an appeal and if an appeal had been conducted in co-operation with the other defendants in O. S. No. 9 of 1945 who had filed an appeal, the lawyers'' fee could have been shared.

Learned Advocate for the respondents has sought to rely on the decision in Kota Nagayya Vs. Vanipenta Venkatayya and Another, , wherein it was held that unless guardian had sufficient funds to prefer and prosecute an appeal against the decree, it cannot be said that be guardian acted with any negligence in not having preferred any appeal. That decision does not apply to the facts of the present case, for, the liability of the guardian, who need not spend his own funds for filing an appeal on behalf of the minor is different from the liability of a vendee who intends enforcing his rights u/s 55(2) of the Transfer of Property Act, against a vendor. Further, it is pointed out by the learned counsel for the appellants that lack of funds cannot be true because the plaintiffs have paid large sums as mesne profits, which had to be paid in O. S. No. 9 of 1945. Ex. A-14 shows that a sum of Rs. 5,693-2-9 with interest at six per cent per annum thereon was awarded against the two plaintiffs to Nagella Guravayya as mesne profits on 5th August 1953.

The lower court has found after considering the relevant evidence, facts and circumstances as follows:

When defendants 3 and 4 had no idea the plaintiff''s mind, it is too much to expect defendants 3 and 4 to prefer an appeal including the present suit properties also. In the circumstances, what all that could be said is that defendants 3 and 4 could have preferred an appeal themselves in respect of the present suit properties but no such conduct was warranted under the circumstances and therefore, they are not to be blamed for not having fought in the appeal about the present suit properties also. I would answer issue No. 4 in O. S. No. 13 of 1953 accordingly.

This finding is untenable and we disagree with it in view of our discussion above. We find that the plaintiffs did not act with due diligence and prudence such as they ought to have, as laid down in Dhulipudi Namayya Vs. The Union of India, 2 Andh WR 153 and that they are guilty of negligence as contemplated in AIR 1938 743 (Lahore) and hence they are not entitled to hold either the intermediate vendors, namely, defendants 1 and 2 or Veerayya or the original vendors, namely defendants 3 and 4 for damages. We uphold the contention on behalf of the appellants on this point and find it in their favour.

It is then argued on behalf of the appellants that the lower court was not right in fixing the market value of the land for the purpose of awarding damages as the market value on the date of dispossession. In view of our finding that the plaintiffs were not entitled to any relief as the loss sustained by them was due to their laches and their failure to diligently prosecute their case in O. S. No. 9 of 1945, strictly speaking, it is not necessary for us to give a decision on this point. But, all the same as arguments have been addressed before us in full, we will give our finding on this point also. Initially, it may be stated that this contention was not urged in the lower court, as seen from the observations of the learned Subordinate Judge, in his judgment.

As regards the damages under the first head, namely for the loss of the land, it is common case that the plaintiffs are entitled to damages on the basis of the market value of the land as on the date of dispossession.

In (Yella) Ramayya and Others Vs. (Chukkapalli) Kotayya and Others, , it was held that where a purchaser of immoveable property is dispossessed owing to lack of title in the vendor, he can claim as damages not only the actual price paid by him, but according to the enhanced value at the time of his eviction.

In Jamal v. Moolla Dawood Sons and Co., 30 Mad LJ 73: (AIR 1915 PC 48), it was pointed out that a plaintiff who sues for damages is bound to take all reasonable steps to mitigate the loss consequent on the breach and cannot claim any sum due to his own neglect and that the loss to be ascertained is the loss at the date of the breach. If at that date, the plaintiff could do or did something which mitigated the damage, the defendant is entitled to the benefit of it. The market rate at the breach is the decisive element and this principle applies to a breach by either the seller or buyer.

In Hajee Ismail Sait and Sons v. Wilson and Co., ILR 41 Mad 709: (AIR 1919 Mad 1053) it was observed that the measure of damages in a case like that, is the sum by which the contract price falls short of the price for which purchaser might have obtained goods of like quality, at the time when they ought to be delivered.

Learned counsel for the plaintiffs invites our attention to a decision of the Madras High Court in V.M. Meerkanni Rowther Vs. A.V. Periyakaruppan, Therein it was pointed out that in a suit by a purchaser against his vendor for damages for breach of covenant for title, the purchaser was not bound to wait till he is evicted or his possession was disturbed before filing his suit inasmuch as the covenant if broken, is necessarily broken immediately upon the execution of the assurance which contains it and in such a suit the burden lies upon the plaintiff to allege and prove a breach of the covenant. That decision is of no avail to the plaintiffs because we have found that the covenant of title was good and was not broken on the dates on which the earlier sale deeds were executed. The title as conveyed originally was sound but the plaintiffs get dispossessed later due to certain reasons referred to supra. It cannot be said that the title became bad on any day earlier than the date of dispossession. There is no question of the plaintiffs filing a suit before they were dispossed. For, if they had been diligent and filed an appeal or converted the cross-objections into an appeal, they would not have been dispossessed at all.

In Dhadha Sahib Vs. Mahomed Sultan Sahib, it was held that in assessing the damages the vendee is entitled to ask that he should be assessed at the present enhanced value of the lands. Therein it was observed:

The learned District Judge is evidently wrong in saying that in assessing damages the plaintiff is not entitled to ask that he should be assessed at the present enhanced value of the land. Surely he is entitled to compensation so that he might be restored pecuniarily to the same position as if he had recovered the land which the first defendant sold to him.

In Muhammad Siddiq and Others Vs. Muhammad Nuh a Division Bench of the Allahabad High Court held that the measure of damages to be awarded to the vendee should be, the extent of loss suffered by him on account of the property going out of his possession and would therefore, be the market value of the property on the date of dispossession.

In Polavarapu Venkataswami Vs. Nalluri Venkayya, , it was held that when a suit is instituted for recovery of damages the damages must be ascertained on the date of the suit and not on any other date prior to it. In that case, the date of original sale by the widow of the original lessor to the defendant was in 1932. The first defendant in turn sold it to the plaintiff who was the son of the original lessee, in 1933. The dispossession of the plaintiff was on the 22nd March, 1947 and the plaintiff filed his suit on 11th April, 1947. One of the contentions raised on behalf of the appellant was that the market value should be calculated as on 11th March, 1937 the date of symbolical delivery given to the auction-purchaser or on 30th September, 1943, when the decree for maktha was passed. It was therein observed:

We consider that to be the reasonable and suitable view to be taken in cases of this kind relating to damages arising out of the breach of covenant of title and our view finds support in the decisions reported in Muhammad Siddiq and Others Vs. Muhammad Nuh and Dhadha Sahib Vs. Mahomed Sultan Sahib, The learned counsel however relied on the decisions reported in M.R. Alagarappa Reddiar Vs. K. Alagirisami Naick, and Muthu Goundan and Others Vs. Mottayan alias Kolanda Goundan, . But the question there did not arise in the manner in which it has been raised in the present case. In those cases the contention was as to whether the damages were to be ascertained on the date of the sale or on the date of the breach and not on the date of the dispossession or on the date of the suit as in the case before us. We have therefore to find out what the market value of the property would be on 11th April, 1947, the date of the suit.

In that case the question did not arise as to whether the plaintiff was entitled to the market value as on the date of dispossession. In the instant case, it is nobody''s contention that the market value should be fixed as on the date of the suit as distinguished from the date of dispossession. We do not find anything in the decision in Polavarapu Venkataswami Vs. Nalluri Venkayya, which makes us doubt the correctness of the decisions in Muhammad Siddiq and Others Vs. Muhammad Nuh and Dhadha Sahib Vs. Mahomed Sultan Sahib, and we respectfully follow the decisions in Dhadha Sahib Vs. Mahomed Sultan Sahib, and Muhammad Siddiq and Others Vs. Muhammad Nuh

On a careful consideration of the law as laid down in all the above decisions, we find that if the plaintiffs are entitled to damages the basis for assessing damages would be the market value of the land as on the date of dispossession. We agree with the finding of the learned Subordinate Judge, which was in agreement with the common case of both sides before him, on this point.

As regards the quantum of mesne profits, the learned Subordinate Judge has mentioned in paragraph 18 of his judgment :

The vendors are liable for those mesne profits and costs because plaintiffs were compelled to pay it and the payment is prudent. It is conceded that if the plaintiffs are found entitled to claim damages at all they are certainly entitled to claim damages under both the heads.''''

Thus, it is clear that it was agreed by all sides in the lower Court that if the plaintiffs were entitled to damages for the value of the land they would also be entitled to mesne profits. Nothing has been shown to doubt the correctness of the award of mesne profits or the quantum of damages. But, in view of our finding on point 2 being against the plaintiffs, we hold that they are not entitled to any mesne profits at all.

Learned Advocate for defendants 1 and 2 and Veerayya contends that if the appeal filed by defendants 3 and 4 is allowed and the suit is dismissed, the dismissal should be of the entire suit, not only against defendants 3 and 4 but also defendants 1, 2 and Veerayya. On the other hand, it is contended by the learned counsel for the plaintiffs that even if the appeal of defendants 3 and 4 is allowed, the decree and judgment as against defendants 1 and 2 in O. S. No. 12 of 1953 and Barla Veerayya in O. S. No. 13 of 1953 should stand, as they who are intermediate vendors, have not filed any appeal.

Now, Order 41, rule 33, Civil Procedure Code, lays down:

The appellate court shall have power to pass any decree...... which ought to have been passed and made...... and this power may be exercised by the Court, in favour of all or any of the respondents or parties although such respondents or parties may not have filed any appeal or objection.

In Abbayya v. State of Andhra Pradesh, AIR I960 AP 134 at p. 136, Sanjeeva Row Nayudu. J. observed as regards Order 41, Rule 33, Civil Procedure Code:

A careful reading of this rule makes it clear that the appellate court has no power to set aside a decree against a party before it which had become final by reason of its not having been appealed against by that party. The extreme case that is governed by this rule is the one that is given in the Illustration.

With great respect to the learned Judge, we are unable to subscribe to such a view. In the present case, we have found that the plaintiffs were guilty of laches and were not entitled to any relief for the loss sustained by them. We have also found that the loss was not due to the fault on the part of defendants 3 and 4 or on the part of defendants 1, 2 and Veerayya. So, the decree which ought to have been passed by the lower court should have been a decree of dismissal of the suit and the ground on which defendants 3 and 4 succeeded in the appeal is thus a ground which is not special to themselves but is a general ground which applies to defendants 1 and 2 and Veerayya also. In Venukuri Krishna Reddi and Another Vs. Kota Ramireddi and Others, ) it was held that the appellate court has power to pass a decree in favour of the party even though he had not filed an appeal or a cross-appeal. Respectfully following the above decision, we hold that defendants 1, 2 and Veerayya are also entitled to the benefit of these appeals by defendants 3 and 4 but that defendants 1 and 2, and Veerayya will not be entitled to any costs. (His Lordship dealt with various cross objections and dismissed them).