HIGH COURT OF KERALA
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(1.) The plaintiff is the appellant in this appeal. The suit out of which the appeal arises was for recovery of unpaid purchase money due to the plaintiff on a sale of immovable property to the defendant. Plaintiffs claim was not resisted by the defendant who made a counter claim against the plaintiff in an amount far in excess of what the plaintiff claimed, on account of damages for breach of a covenant contained in the sale deed. Both the plaintiffs claim and the defendants counter claim were decreed by the court below, and set off between the two allowed with the result that the plaintiff had to pay the difference to the defendant.
(2.) The sale was on 6.3.1119. Ext. V is the original sale deed a copy whereof has also been filed and marked as Ext. A. The sale was of land measuring 2 acres and 22 cents out of which 7 or 8 cents was unregistered poromboke. There were several buildings on the land sold. The site abutted a public road and one of the buildings was along side that road. Portions of that building were in the said 8 cents and one bit of it at a corner projected even beyond the 8 cents into the road margin as is seen from Ext. XIII which is the plan prepared by the commissioner deputed by court. The consideration for the sale was Tr. Rs. 34,000 which will be equal to Br. Rs. 33403-14-8 as it was then known; out of this Rs. 13403-14-8 was paid down in cash and the balance Rs. 20,000 was reserved with the vendee who was the Archbishop of Trivandrum to be paid in two equal instalments in future on 6.9.1119 and 6.3.1120 with a provision that on default of payment the overdue amounts would carry interest at 6 per cent. The sale deed mentioned the fact of the existence of the aforesaid unregistered poromboke in the property conveyed thereunder and the seller covenanted that he would procure its registration an application wherefor presented by him was pending, and transfer the full rights to the vendee. The deed also provided that should any loss accrue to the vendee on account of non existence of or defect in title the vendor would be responsible for consequent damages. Within a few days of the sale, i.e. 13.3.1119, the defendant as vendee filed an application for registry of the said unregistered poromboke in his name instead in that of his vendor with an alternative prayer that if for any reason the prayer for registration could not be granted the property may be given to him as kuthakapattam so that he may continue in possession without interruption. The unregistered poromboke in question appears to have been in the possession and enjoyment of the vendor for some considerable time. Various fruit-bearing and other trees had been planted thereon. In fact a long structure abutting the road about 255 ft. long and 20 ft. wide containing two halls on either end and entrance in the middle and two rooms on either side of the entrance was partly located in a portion of this poromboke. The first instalment of Rs. 10,000 was paid by the defendant on 24.7.1119, i.e., about two months in advance of the due date, and the plaintiff passed a receipt, Ext. I, expressly reserving his liability in respect of the covenant contained in the sale deed. The reference obviously is to the liability of the plaintiff in respect of the unregistered poromboke comprised in the sale. Proceedings under the Land Conservancy Act which had been started in respect of the aforesaid unregistered poromboke occupied and enjoyed by the vendor were continued after the sale against both the vendor and the vendee. Exts. IX and X are notices issued to the defendant in respect of the said encroachment proceedings. There were two notices because the encroachment was in respect of two slices in two survey numbers. On 28.1.1120 the defendant filed another petition, Ext. E, making a prayer similar to the one contained in the earlier one. The plaintiff on 21.2.1120 presented a statement, Ext. IV, agreeing to the registry being given to the defendant as prayed in Ext. E. By two orders in the two cases, Exts. II and III, dated 20.6.1120 the application for registry made by the defendant was dismissed and the land was ordered to be surrendered. The plaintiff preferred appeals. Exts. F and G are the orders dismissing the appeals but directing the grant of the land to defendant on kuthakapattam. On 18.2.1120 a notice was issued by the defendant to the plaintiff to which the plaintiff replied on 27.2.1120. Neither the notice nor the reply is before court. It is admitted that the notice and reply related to the non securing of the registry in respect of the unregistered poromboke. The suit out of which the appeal arises was filed on 31.1.1122. Thereafter, on 1.8.1122 the defendant presented applications marked as Exts. H and J for kuthakapattom in respect of the aforesaid property which is situate in two survey Nos. 63/3/B and 63/3/A. Kuthakapattam was accordingly granted in 1953. A certified copy of the document has been produced in appeal by the appellant. The respondent does not object to the reception of the document in evidence in appeal and we consider that in the special circumstances of this case its reception as additional evidence is necessary and we, therefor, accept it as additional evidence and mark the document as Ext.K. The kuthakapattom granted under Ext. K is for a period of 12 years from its date subject to sooner termination if default is made in the payment of the dues shown therein or on three months notice if the land be required for a public purpose. As a result of these proceedings the defendant has been in occupation of the unregistered poromboke in controversy without disturbance though he has not got the title which was covenanted to be conveyed under Ext. V.
(3.) The counter claim of the defendant related to the breach of the covenant of the plaintiff in the matter of procuring the registry of the 7 or 8 cents of unregistered poromboke comprised in the conveyance. The defendant contended that the building a part of which is situated in the said poromboke and which had been considerably improved by him after the purchase has to demolished and reconstructed it having become certain from the aforesaid proceedings that obtaining title there to by its registry is not feasible. The court below awarded the defendant damage to the tune of Rs. 24,110 being the estimated cost of the loss of title to the said site as also of the demolition and reconstruction of the building in some other portion of the property conveyed under the sale. Learned counsel for the appellant contends before us that the obligation incurred by his client was only to do his best in the matter of securing the registry of the poromboke and that he has done whatever he could in that regard. He also contended that the defendant having himself intervened in the matter of obtaining the registry and applied for it he has waived the covenant in regard to the plaintiffs procuring the registry. The next contention urged by him was that the award of compensation by the court below is excessive and the last was that in any view of the matter the claim for damages is premature as the defendant is still in possession and has not been ousted.;
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