Decided on August 25,1955



- (1.)The plaintiff is the appellant in this Second Appeal. He sold a building site of the extent of 600 square yards in Rajahmundry to the defendant for Rs. 2,450 under a sale deed, Exhibit B-i executed on 31st January, 1950. The defendant (buyer) was living a few yards off and to his knowledge the site was in the occupation of a tenant holding under a monthly lease when Exhibit B-1 was executed. The relevant clauses of the sale deed, Exhibit B-1, were as follows : "The said sale consideration of Rs. 2,450 has been settled to be paid to me by you before the Sub-Registrar at the time of registration of the document. The sale consideration has been received by me in the said manner. By the date of registration of the said sale deed, we shall deliver possession of the property to you and get the document duly registered."
(2.)According to the buyer's notice Exhibit A-1 dated 8th March, 1950, vacant possession of the site was not given though the lease deeds relating to the site were handed over to him. The buyer demanded delivery of vacant possession and registration of Exhibit B-1. The seller's reply Exhibit 6-4 dated 18th April, 1950, was to the effect that the buyer was aware of the tenancy and had agreed to take the property-subject to the tenancy and that owing to the failure of the buyer to hand over the lease deeds to the seller, he was unable to sue for eviction of the tenant. Exhibit B-4 also intimated that if the buyer could not wait till the tenant was evicted the sale might be treated as ' cancelled.' On 24th April, 1950, the buyer presented the sale deed, Exhibit B-1, for registration and it was compulsorily registered on 14th June, 1950. The buyer did not pay the price even though Exhibit B-i had been got registered at his instance. There was a further exchange of notices between the parties, the seller demanding payment of the price and the buyer insisting on delivery of vacant possession before payment. It may be stated that during the pendency of the present suit the tenant agreed to surrender possession of the property to the seller or to the buyer if so directed by the seller.
(3.)On 30th June, 1950, the seller filed the suit out of which this Second Appeal has arisen for cancellation of the sale deed, Exhibit B-1 ,or for recovery of the purchase money with interest and costs. The buyer deposited Rs. 2,450 into Court after the institution of the suit. Exhibit B-1 having been registered and the title to the site having vested in the buyer the relief by way of cancellation of the sale deed was given up at an early stage of the suit.

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