B. D. Agarwal, J. - (1.) THIS is defendants' appeal.
(2.) FACTS relevant as found by the courts below are briefly these. Niranjan Lal, defendant, was a member of the Co-operative Housing Society Limited Koil (district Aligarh) (hereinafter referred to as the Society). The plaintiff is his brother-in-law. The plaintiff was an employee in the East India Railway from where he retired on May 27, 1944. On August 16, 1934, the Society made allotment of plot no. 235 (area 600 Sq. yards) to the defendant. The defendant wrote to the plaintiff on August 19, 1934. suggesting that the latter might acquire for his use a plot measuring 600 sq. yards near the plot of Manmohan Lai and a sum of Rs. 450/- be sent to him for this purpose. The plot held by Manmohan Lal was numbered 237. The plaintiff gave a sum of Rs. 450/- to the defendant in October, 1934. On March 23, 1935. the plaintiff applied for membership of the Society. On this application, 45 shares of the value of Rs. 10/- each were allotted to him on May 31, 1931. The plaintiff's share money being, however, not deposed the Society forfeited these shares in about1936-37 On September 24, 1939, the plaintiff advanced Rs. 4,000/- to the defendant. Of this, according to his instructions, Rs. 500/- were to be spent in the digging and laying of foundation of plot no. 235; the rest was to be invested on behalf of the plaintiff by being given on loan to one Bans Gopal against a mortgage. This investment was, however, not made a sum of Rs. 500/- was given as loan by the defendant on behalf of the plaintiff by way of investment to one Mohan Lal against a promissory not executed on 12-12-1940. The plaintiff later acquired this promissory note. On October 11, 1940, the defendant wrote to the plaintiff that the members of the Society had to pay enhanced price at the rate of 8 annas per sq. yard with in October 31, 1940. The plaintiff gave Rs. 300/- to the defendant accordingly in October, 1940. The defendant informed the plaintiff through his letter dated November 23, 1940 that the amount to the defendant-Society had been deposited and he would transfer the plot standing in his name to the plaintiff and get for himself plot no. 236 which was held by his cousin brother, Raghunath Dayal, vide Ext. 17. A further sum of Rs. 100/-was given by the plaintiff to the defendant in October, 1943.
(3.) IN this manner, according to the findings of the courts below, the plaintiff in all gave Rs. 1350/- to the defendant under the belief that the defendant would convey plot no. 235 (area 600 sq. yards) to him. IN accordance with the bye-Jaws of the society, the transfer could not be made without the plot having been built upon. The defendant assured the plaintiff that he would get a room constructed on the land and then execute the transfer. The transfer was, however, not made, whereupon the plaintiff gave notice dated November 17, 1949 to the defendant. The suit giving rise to this appeal was instituted on January 20, 1950. The relief claimed by the plaintiff was that the defendant be directed to transfer plot no. 235 to him and make such steps that might be necessary for effectively putting the plaintiff in the possession thereof, failing which the court might be pleased to execute the necessary deed of transfer in favour of the plaintiff. In the alternative, the plaintiff claimed a sum of Rs. 1350/-, besides Rs. 150/-as interest. He also claimed a decree for a sum of Rs. 3000/- and a sum of Rs. 600/- as interest thereon. The defendant refuted that he ever held out to the plaintiff that he would transfer plot no. 235 to him; and further that he did not receive any amount from the plaintiff in this connection. The suit was decreed on April 23, 1955 by the trial court. Operative portion of the judgment of the trial court says : "The suit is decreed for recovery of Rs. 3,032/- with 3% pendente- lite and future interest. The defendant is further directed to transfer plot no. 235 situate in Visbnu-puri, Aligarh to the plaintiff within six months from today and shall take such steps as may be necessary under the rules of the Housing Society in order to put the plaintiff in possession of the said plot. A room shall be built on the said plot out of the money found due against the defendant and the amount spent in building the same shall be deducted from the decretal amount. In case of default by the defendant, the plaintiff shall be free to get a room constructed at his own expense through the court, and thereafter get the the plot transferred to himself. He shall get costs in proportion to the successors. The defendant shall bear his own costs.";