- (1.) This is an appeal by the defendant against the decree of the High Court of Nagpur,which reversed the decree of the Additional District Judge. Khamgaon, dismissing the plaintiff's suit. Leave to appeal was granted as the value of the subject matter of the suit in the trial Court was Rs. 35,006 and as there were substantial questions of law.
(2.) The property involved is a Ginning and a pressing factory situated at Khamgaon and the case for the plaintiff is that they belonged originally to Sir Hukumchand and his son RajkumarSing from whom he purchased the factories for a sum of Rs. 35.000 under a registered sale deed dated 26-11-1939. Prior to the sale, there was a letter or note on 3-11-1939, setting out the agreement between the parties relating to the sale. On the next day. possession of the factories was handed over to one Seth Chaosi Dhanji at Khamgaon on behalf of the plaintiff. Two days afterwards, i.e. on the 6th of November, Sir Hukumchand entered into a fresh agreement to sell with the defendant, but this was behind the back of the plaintiff. on the 7th of November, the defendant's men attempted to take forcible possession of the factories from Chapsi Dhanji, plaintiff's representative on the premises. Ultimately, the defendant's agent one Nathmal resorted to the police and this led to proceedings before the lst class Magistrate under Section 145, Criminal P. C. The Magistrate appointed Receivers to take charge of the properties. On these allegations, the plaintiff sought a declaration that he was the owner of the properties and that the defendant had no right, title or interest in the same.
(3.) The defendant did not admit the plaintiff's agreement or the subsequent taking of possession by Chapsi Dhanji. He set up his own agreement of the 6th November with Messrs Sarupchand-Hukumchand of Bombay of which Sir Hukumchand Sarupchand is the sole proprietor and alleged that it came into existence with "the consent or approval" or "knowledge or acquiescence" of the plaintiff. Towards the consideration of Rs. 45,000/-, a cheque was given for Rs. 5,000/- to the firm of solicitors who acted in the matter for both the vendor and the purchaser. The defendant's munim Nathmal Chunilal Agarwal went to Khamgaon on the 7th of November and took peaceable possession of the properties in the presence of Chapsi Dhanji. According to the defendant, the sale deed in plaintiff's favour by Sir Hukumchand and his son Rajktumarsing was fraudulent and collusive. Owing to plaintiff's knowledge of the defendant's agreement, and the taking of possession in the presence of the plaintiff's representative Chapsi Dhanji, the plaintiff. it was pleaded. was estopped from disputing the defendant's title. The allegation of the plaintiff that the defendant took his agreement with knowledge of the plaintiff's agreement to purchase was not true. As a matter of fact, the plaintiff never took possession of the factories. There was a suit for specific performance filed by the defendant in the High Court at Bombay against Messrs. Sarupchand Hukumchand and the plaintiff. The plaintiff's suit for a bare declaration without seeking the consequential relief of possession was not maintainable.;