A.N.Varma - (1.) THIS is a defendants' second appeal arising out of a suit for recovery of possession and damages and in the alternative the refund of the sale consideration along with interest thereon. The trial court had dismissed the suit. On appeal that decree was set aside and the suit of the plaintiff respondents for recovery of possession of the disputed shop as well as for the damages for use and occupation was decreed. Hence this second appeal.
(2.) THE relevant facts which are not in dispute are that one Ram Narain Lal, the husband of the respondent no. 4 and father of the remaining defendant respondents was the owner of the disputed shop and Swamidin was the tenant thereof. On 1-5-1953 Ram Narain Lal had filed a suit no. 231 of 1953 for eviction of Swamidin. Meanwhile Ram Narain Lal filed another Suit no. 613 of 1955 on 23-8-1955 for the same relief, namely, ejectment and damages against Swamidin but the suit was stayed under section 10 CPC. During the pendency of these suits, Ram Narain executed a sale deed in favour of Ram Sewak and Ram Awatar, the present plaintiff respondents on 29-3-1966. Suit No. 231 of 1953 which was pending as a second appeal } here was later withdrawn on account of defect in the notice under section ' 106 T. P. Act. Eventually on 28-2-1968 suit no. 613 of 1955 was decreed and the appeal filed by Swamidin against that decree was dismissed on 24/25-4-1969. THE second appeal filed by Swamidin was dismissed in default by the High Court on 7-9-1979. Meanwhile Ram Narain Lal had died on 9-5- 1973 and his heirs the present defendant respondents were duly substituted in the second appeal. THE second appeal which was dismissed in default was subsequently restored but was again dismissed on merits on 15-7-1980. In the meantime the heirs of Ram Narain executed a sale deed dated 28-1- 1980 in favour of Gulab Chand the present defendant appellant and thereafter in execution of the decree passed in suit no. 613 of 1955 Swamidin was evicted and possession was taken by Gulab Chand on behalf of the heirs of Ram Narain. This gave rise to the present suit no. 29 of 1980 filed by the plaintiff respondent against the heirs of Ram Narain and Gulab Chand, the relief claimed being one of possession. THE suit was dismissed by the learned Civil Judge but on appeal, it was decreed. THEreafter the present second appeal. On these facts learned counsel for the appellant submitted that the suit filed by the plaintiff respondents was clearly barred by time and the lower appellate court has committed a substantial error of law in setting aside the decree passed by the trial court. Very briefly the contention of the learned counsel for the appellant was that with the execution of the sale deed by Ram Narain in favour of the plaintiff respondents, the possession of Swamidin who was in occupation as a tenant of the vendor became adverse to the vendee. That being so, the present suit which was admittedly filed more than 12 years after the transfer of the property in favour of the plaintiff respondents became barred by time. Having given the matter a careful consideration, I find no merit in the above contention. It is apparent that before the suit can be dismissed on this ground, it must be found that the possession of the vendor and of his tenant Swamidin should have been open, hostile and adverse to the vendees. In the present case, however, a close scrutiny of the undisputed facts would demonstrate beyond doubt that the cause of action for the present suit arose only after 30-7-1980, the date on which Swamidin was evicted in execution of the decree passed in suit no. 613 of 1955 and the heirs of Ram Narain instead of handing over possession to the plaintiffs as contemplated under the sale deed allowed Gulab Chand to occupy the shop.
(3.) THE position is like this. On the date of execution of the sale deed dated 29-3-1966 the shop was in occupation of Swamidin and two suits for his eviction, viz., suit no. 231 of 1953 and 613 of 1955 filed by the vendor were both pending. Reference to the fact that a suit for the eviction of the tenant was already pending was made in the sale deed obviously because the vendor was conscious of his statutory obligation under clause (f) of section 55 (1) of the Transfer of Property Act. In affirmation of this position the vendor had stated in the sale deed that the disputed shop was in possession of the tenant and that a civil suit no. 231 of 1953 had already been instituted for his eviction. It was further stated that the suit had been decreed by the trial court but the tenant's second appeal was pending in the High Court. Significantly the sale deed did not state or stipulate as one might have expected that the further progress of the suit was from the date of sale the sole concern of the vendees. Not only this, the sale deed further stated that if after the decision of the second appeal by the High Court the vendees are not able to get possession, the vendor would return the entire sale consideration together with the interest at the rate of one percent per mensum, which amount the vendees could realise from the personal properties of the vendor. Implicit in the sale deed read as a whole is an implied assurance by the vendor that he would put the vendees in possession of the shop after Swamidin had been ejected therefrom and that towards that end the vendor had already taken necessary action. That being so, the vendees could legitimately sit back and await the out come of the action already initiated by the vendor for the eviction of the tenant.;