Mehar Singh, J. - (1.) AN area of land measuring 8 Bighas and 14 Biswas purchased by Munshi and Kola, defendants, by a registered sale deed of May 3, 1956, for Rs. 700/ - from Chandan, father of Hari Singh plaintiff (now respondent). The defendants had so purchased another area of land from one Kudan.
(2.) IN a suit by the plaintiff to pre -empt the sale of land by his father and for declaration that the sale was not binding on him for want of consideration and legal necessary there was a compromise between the plaintiff and the defendants where under on payment of Rs. 700/ - by the plaintiff to the defendants, the former was to have the land subject of the suit. The decree was for possession of the land and on the date of August 14, 1956. By the time the plaintiff came to execute that decree and obtain possession of the land under the decree, consolidation of holdings had taken place in the village. In lieu of the lands which the demandants had land purchased by them from the plaintiff's father, land purchased by them from Kundan and land already with them -they were allotted, on repartition, new area of land. In the execution of the decree of August 14, 1956. there was again a settlement between the plaintiff and the defendants where under the plaintiff was given land, described in paragraph 3 of the plaint of his suit, by the defendants, and he took possession of that land. The fact of the matter was that that land had been allotted to the defendants in lieu of the land purchased by them from Kundan. The second sale in favour of the defendants from Kundan was pre -empted by one Lajjya Ram. who obtained a decree for possession of the land referred to in that sale The consolidation of holdings having taken place in the village, the land that was allotted to the defendants and in lieu of the land purchased from Kundan was the land described in paragraph 3 of the plaint by the plaintiff. Lajjya Ram having complied with the terms of the pre -emption decree sought possession of the land under that decree and obviously he followed the land allotted to the defendants as described in paragraph 3 of the plaintiff's plaint, in lieu of the land of the defendants purchased by them from Kundan. By the time Lajjya Ram came to enforce his decree, that piece of land was in the possession of the plaintiff pursuant to compromise and settlement between the plaintiff and the defendants in execution of the decree of August 14, 1956. The plaintiff was subsequent transferee of that land which was subject to the right of pre -emption of Lajjya Ram and so Lajjya Ram succeeded in obtaining possession of that land from the plaintiff. In this way while the plaintiff succeeded in his pre -emption suit, although on the basis of the compromise between the parties and having paid Rs. 700/ - to the defendants he gained title to the land subject to his pre -emption suit, but in the circumstances as have been detailed above, he ultimately came to lose possession of the land that he obtained under the pre -emption decree in his favour. He lost that land because the land given by the defendants to him was subject to the right of pre -emption of Lajjya Ram. It has been nobody's case at any stage that the plaintiff was made aware by the defendants that that land was subject to the right of pre -emption of Lajjya Ram which, if enforced by the last -mentioned person, would result in the plaintiff being deprived of the possession of the land, and thus rendering the decree in his favour for possession of land, because of his pre -emptive right, meaningless and' infructuous.
(3.) IT was alter the plaintiff had thus lost the land of which the possession had been obtained by him under the pre -emption decree in his favour of August 14, 1956, that the plaintiff brought the suit, giving rise to this appeal, for recovery of the land from the defendants which obviously the defendants secured on repartition in consolidation of holdings in their village in lieu of the land which had been sold to this by the plaintiffs father and of which the sale had been pre -empted by the plaintiff. The plaintiff succeeded in the trial Court, but on appeal by the defendants, the Court of first appeal dismissed the suit of the plaintiff on the ground that the original piece of land in exchange of which the defendants had made over the land mentioned in paragraph 3 of the plaintiff's plaint no longer existed. In second appeal by the plaintiff the learned Single Judge has by his judgment and decree of January 23. 1964, reversed the decree of the Court of first appeal and restored that of the trial Court, decreeing the suit of the plaintiff. The learned Judge has based his judgment on section 119 of the Transfer of Property Act and in the view that the land purchased by the defendants from Kundan was subject to the right of pre -emption of Lajjya Ram and the land that the defendants obtained in repartition as a result of consolidation of holdings in the village in lieu of that land was thus also subject to that right of pre -emption of Lajjya Ram, which right of pre -emption of Lajjya Ram was an infirmity attaching to the title of the defendants in the land. The infirmity which attached to the land originally purchased by the defendants from Kundan continued to attach to the land obtained by them in repartition on consolidation of holdings. So the case, according to the opinion of the learned Judge, came within the scope of section 119 of the Transfer of Property Act, which section is to this effect If any party to an exchange or any person claiming through or under such party is by reason of any defect in the title of the other party deprived of the thing or any part of the thing received by him in exchange, then, unless a contrary intention appears from the terms of the exchange, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person so deprived, for the return of the thing transferred, if still in the possession of such other party or his legal representative or a transferee from him without consideration.;