GURUBAX SINGH GOROWARA Vs. BEGUM RAFIYA KHURSHID

JUDGEMENT

(1.) The plaintiff has filed this appeal against the dismissal of his claim by the trial Court for damages on account of breach of agreement by the defendants.

(2.) The facts not in dispute are that the defendants along with 3 others are the joint owners of agricultural lands measuring 587.01 acres situated in village Khandabarh Tahsil, Budni, District Sehore. They had inherited these lands from their predecessor-ill-interest Khur-sheed Ahmad. After his death, the Government of Madhya Pradesh disputed their title resulting in litigation which ultimately ended in their favour. During pendency of the dispute, the defendants executed an agreement Ex. P. 1 on 5-8-1964. It was agreed that the defendants would sell all the standing jungle including all the timber and firewood etc. to the plaintiff for a sum of Rs. 60,000/- and the defendants would deliver possession of the aforesaid lands for the purpose of clearing and removing all timber, firewood and other pro- duce after the dispute with the Government of M.P. was settled and the defendants obtained possession. The plaintiff was entitled under the agreement to cut, clear and remove all the timer, fire-wood etc. and prepare charcoal from the jungle within 2 years from the date of delivery of possession by the defendants. It was also stipulated in the agreement that if any party failed to perform his part of the agreement, the other party would be entitled to claim Rs. 50,000/- from the defaulter. On the same day, the plaintiff paid Rs. 3500/-to the defendants as advance payment. It was further stipulated that if the dispute of the defendants with the Government was not settled by the end of Jan. 1965 the advance amount of Rs. 3500/- would be refunded to the plaintiff. As the defendants did not deliver possession of the lands by 31-1-1965 the amount of Rs. 3500/- was returned to the plaintiff on 29-10-1966. Subsequently, the defendants received possession of the lands on 20-12-1969 from the State of M.P. but did not deliver possession to the plaintiff. Therefore, the present suit was filed by the plaintiff claiming damage of Rs. 50,000/-as stipulated in the agreement. During pendency of the suit, the defendants entered into similar agreement with one Jagdish Chandra on 31-7-1970 for the sale of standing jungle, timber and firewood in consideration of a sum of Rs. 1,51,000/- and the said Jagdish Chandra in pursuance of that agreement had cut and removed the entire timber, fire-wood and jungle produce from the jungle.

(3.) The plaintiff's case is that on settlement of dispute and getting delivery of possession of their lands, the defendants were bound to put the plaintiff in possession of all jungles including all timber, fire-wood etc. after 20-12-1969 Though the plaintiff took back advance payment of Rs. 3500/- on 29-10-1966 as per the terms of the agreement, the agreement stipulated that in spite of the refund, the agreement would subsist and the refund would be without prejudice to the plaintiff's right under the agreement. This was also the endorsement made by the defendant Salim Ahmad Khan on the receipt passed by him. In spite of this subsisting agreement, the defendants entered into another agreement on 31-7-1970 with one Jagdish Chandra for Rs. 1,51,000/- and thereby they committed breach of the agreement. Though the defendants are profited by a sum of Rs. 91,000/- the plaintiff claims only Rs. 50,000/- as damages which have been stipulated in the agreement.