S. Ramalingam Pillai vs G.R. Jagadammal and Another

Viswanatha Sastri, J.—The Plaintiff is the Appellant. The facts are not in dispute. The Defendant agreed to sell her land to the Plaintiff on or before 10-11-1943 for Rs. 1750/- under a contract D/- 11-10-1943. Default having been made by the Defendant, the Plaintiff filed a suit on 24-11-1943 for specific performance of the contract which was decreed on second appeal by the High Court on 23-2-1950. On 14-8-1950 the Court executed a sale deed in favour of the Plaintiff and he obtained possession on 20-10-1950. The present suit was filed on 8-12-1950 for the profits of the land from 11-10-1943 till 20-10-1950. The Courts below -have dismissed the suit as barred by limitation.

Viewed as a claim for mesne profits, the Plaintiff''s suit must fail. The Plaintiff was not entitled to the possession of the property or the - profits thereof on the execution of the contract '' of sale and it was only on the execution of the sale deed that the title to the property and the right to possession vested in him. In view of Section 54 of the Transfer of Property Act there is no room for the contention that the purchaser became in equity the owner of the estate under the contract of sale and the vendor held the property in trusic for him. The duty of the vendor under the contract of sale is to take as much care of the property in his possession as an owner of ordinary prudence would take till possession is delivered to the purchaser. The buyer is entitled to the rents and profits of the property on the passing of the ownership to him by the execution of a sale deed by the vendor. Section 55(1) (d), (e) and (6) (a) of the Transfer of Property Act. It cannot be said that the possession of the vendor was wrongful or that lie was bound to account to the purchaser for profits till the sale deed was executed in favour of tho I Plaintiff.

It was next argued that the Plaintiff''s claim might be regarded as one for compensation or damages. The Plaintiff would be en-Tiled to sue for compensation for breach of the contract to convey in addition to suing for the execution of a conveyance. The measure of such compensation would ordinarily be the amount of profits which the Plaintiff would have received from the property between the date of the breach of contract and the date when the conveyance was actually executed. See Sashi Bhusan Dey and Others Vs. Rai Chand Bural and Others, : Subbaroyar v. Kottayya Goundan. 1916 1 MWN 284 : AIR 1917 Mad 1009) (B). The claim for compensation could and should have been put forward in the previous suit which the Plaintiff filed for specific performance. Section19 of tho Specific Relief . Act and the second illustration to that section would amply apply to the case. The right to compensation arose coincidentally with the right to specific performance and out of the breach or non-rperfoi''mance of the contract of sale. (Nov.) 1957 Andh. Pra. D.P./61 Bobbin Gowresu/Appellant v. Kottu Subha-dramma, Respondent.

Second Appeal No. 1764 of 1953, D/-5-4-1956, against decree of Sub J., Visakhapatnam. in A. S. No. 47 of 1953.

(a) Evidence Act (1872), Section 116 - Scope - Plea of eviction by paramount title-holder or attornment to him under threat of eviction - Notice of eviction u/s 7 Madras Land Encroachment Act given to both landlord and tenant - Affirmation of landlord''s t tla and withdrawal of notice - Effect - (Tenancy Laws - Madras Land Encroachment Act (3 ofl 1905), Section 7).

It is open to the tenant even without, surrendering possession to show that since the data of the tenancy, the title of the landlord came to '' an end or that he was evicted by a paramount title-holder or that even though there was no actual eviction or dispossession from the, property, under a threat of eviction he had attorned to the paramount title-holder. AIR 1954 Mad 402 Rel. on. (Para 7) The Defendant executed a kadapa in favour of the Plaintiff on the 3rd of August, 1947. On the .date when the kadapa was executed, the land was situated in the ''estate''. Subsequently, the estate was taken over by the Government under the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act (XXVI of 1948), someitime in September, 1949. On the 24th August, 1950, the Supervising Tahsil-dar issued a notice, both to the 1st Plaintiff as well as to the Defendant u/s 7 of Mad ras Land Encroachment Act (III of 1905), calling, upon both the 1st Plaintiff and the Defendant tot show cause why action u/s 5 or section 6 of the Act should not be taken.

The 1st Plaintiff submitted a statement wherein she claimed that her predecessors-in-title had been in possession of, the property and this property was sold to her under a sale deed of the year 1915. This claim of the Plaintiff.: was accepted hy the Supervising Deputy Tahsildar. As a result of this order passed. by that Supervising Tahsildar not only was there no (eviction of the Plaintiff but her title to'' the land in dispute was affirmed while the claim of the-Defendant to the land was rejected. .

Held that the Defendant was estopped, fromi denying the title of the Plaintiff u/s 116 Evidence Act. The effect of the order of the Supervising Tahsildar wag, that the notice of eviction; issued u/s never took; effect so that the'' principle stated above was not applicable to the case. Moreover, there was no proof in-this case that by reason of the notice given by the Supervising Tahsildar, u/s 7 the Defendant.