SHINGHAL, J. - (1.) PLAINTIFF Khinwasingh, who is the appellant, admittedly purchased a she-buffalo from defendant Nemisingh on Mangsir Badi 7, Smt. 2009 (Novembers, 1952), for Rs. 400/- and took its delivery. About a week later, the police found that the buffalo belonged to one Pannalal who had entrusted it to the custody of one Paudan Singh and that Paudan Singh was guilty of criminal breach of trust in selling the buffalo to Nemisingh. The police therefore seized the buffalo from the plaintiff's custody on November 15, 1952, and it is admitted that the plaintiff has not been able to regain its possession. He therefore instituted the present suit for the recovery of Rs. 400/- on account of the failure of the consideration and Rs 100/- by way of damages. According to the plaintiff, the defendant knew all along that the buffalo belonged to Pannalal Baheti of Karel, who had entrusted it to Paudan Singh and that the defendant falsely represented to the plaintiff, for the purpose of cheating him that he had purchased the buffalo from Paudansingh as it belonged to him. Defendant Nemisingh resisted the suit and took the plea that he had purchased the buffalo from Paudan Singh on Bhadwa Badi 5, Smt. 2009, as evidenced by entry Ex. A-1 of that date in his 'khata' and that he had every right to sell it to the plaintiff, so that the plaintiff was not entitled to bring the suit. The learned Munsiff of Ajmer held that the plaintiff had not succeeded in proving his allegation about the alleged cheating and that there was no question of implied warranty under sec. 14 of the Sale of Goods Act. He therefore dismissed the suit on January 9, 1958, and as the plaintiff's first appeal has been dismissed by the learned Civil Judge of Ajmer on August 31, 1959, he has preferred this second Appeal.
(2.) A preliminary objection has been raised on behalf of the defendant-respondent that this second appeal is not maintainable under sec. 102, Civil Procedure Code, because the suit was triable by a Court of Small Causes. It is true that so far as its valuation is concerned, the suit could be said to fall within the purview of a court of small causes, but it is excepted from such cognizance by virtue of item 35 (j) of the Schedule read with sec. 13 of the Rajasthan Small Cause Courts Ordinance, 1950. Under that item, a suit for compensation 'for an act which is, or, save for the provisions of Chapter IV of the Penal Code, would be an offence punishable under Chapter XVII of the said Code" is outside the purview of a court of small causes. A reading of paragraph 2 of the plaint shows that the plaintiff clearly alleged that the defendant cheated him in the transaction which has given rise to the present suit, and as all the ingredients of the alleged offence have been mentioned in that paragraph, I have no doubt that the suit was within the cognizance of the small causes court. Sec. 102 of the Civil Procedure Code cannot therefore bar this second appeal. Having put aside the preliminary objection of the respondent, I shall consider Mr Inani's argument that the two courts below committed a serious error of law in holding that sec. 14 of the Sale of Goods Act was not applicable to the sale in question. Mr. Inani has pointed out that the learned Judge of the lower appellate court misread the plaintiff's notice Ex. 3 in holding that there was no implied warranty of title in the present case. I find that the argument is quite correct. The learned Judge, it appears, took into consideration only that part of the plaintiff's notice Ex. 3 in which he had stated that, at the time of the purchase of the she-buffalo in question, he warned the defendant that the buffalo with Paudan Singh was that of a Baheti of Karel. The learned Civil Judge therefore held that the plaintiff knew at the time of the purchase of the she-buffalo that it belonged to Pannalal and so he was not entitled to claim a refund of its price. In arriving at this conclusion, the learned Judge lost sight of the other averments in the notice which went to show that, in spite of what the plaintiff told the defendant, the defendant persisted in giving him an assurance of title by asking him not to worry and by taking all the responsibility on himself. When, therefore, the whole of the relevant portion of the notice has not been considered by the court below, it must be held that a finding based on an incorrect reading of the document is vitiated by an apparent error and requires to be reconsidered. Another defect which has been pointed out by Mr. Inani is that the learned Judge of the lower appellate court did not at all read that portion of the statement of Banraj DW 4 in which he had stated that the defendant gave an assurance to the plaintiff at the time of the purchase of the buffalo that it belonged to him and that he took full responsibility for the sale. Banraj was the defendant's witness, and his statement deserved due consideration. Moreover, it appears that defendant Nemisingh admitted that he had told the plaintiff that he had purchased the buffalo from Paudan Singh and that it belonged to him. These two statements were important and as they have not been read and considered by the learned Civil Judge, his finding on the application of sec. 14 of the Sale of Goods Act cannot be held to be binding on this Court. Besides, as I shall show in a moment, the learned Civil Judge failed to appreciate the scope of that section. The question then is whether, on the evidence on the record, the benefit of sec. 14 of the Sale of Goods Act should be given to the phaintiff. In this connection, it has been argued by the respondent's learned counsel that the plaintiff did not base his claim on any implied warranty of title and that as he came to the court with the specific plea of cheating, he cannot be allowed to make out a new case. I am afraid I cannot uphold this argument because I find that while issue No. 1 dealt with the question of the alleged cheating, issue No. 2 contained two parts. The judgments of the two courts below show that it was taken for granted that the question of implied warranty, within the meaning of sec. 14 of the Sale of Goods Act, fell within the second part of that issue, which was generally worded for the purpose of deciding whether the defendant was not liable to refund Rs. 400/-even after the loss of the buffalo by the plaintiff on its seizure by the police. Besides, it appears that arguments were addressed in both the courts on the question of the implied warranty of title, with specific reference to sec. 14, and it is not fair to contend now that such an argument should be shut out. The parties all along knew that the question of implied warranty of title was an important point of contest between them. They had an opportunity to lead their evidence in regard to it, and availed of that opportunity. It cannot therefore be said that an argument about the application of sec. 14 of the Sale of Goods Act will prejudice either party. It has been argued by Mr. Inani that the evidence on the record is sufficient to prove that, the defendant gave an unqualified assurance to Khinwa Singh that he was the owner of the she buffalo in question and that as the plaintiff purchased it on that assurance, he is entitled to succeed when it is not disputed that the consideration totally failed when the plaintiff was deprived of its possession on its seizure by the police. In this connection, Mr. Inani has invited my attention to the statements of Pannalal PW 2, Bhersingh PW 3, Lachmansingh PW 4 and Amarsingh PW 5. Pannalal PW 2 has stated that Paudansingh owed him some money and that he purchased the she buffalo in question from him against that loan, but entrusted it to Paudan Singh for grazing. The statement of the witness shows that the buffalo ceased to belong to Paudan Singh on its purchase by Pannalal. Then there is the statement of Bhersingh PW 3, who claims to be present at the time of the purchase. He has stated that the defendant gave an assurance to the plaintiff, at the time of the sale, that he had purchased the buffalo from Paudan Singh and that this was why it belonged to him. Lachmansingh PW 4 has also stated that such an assurance was given by the defendant at the time of the purchase. Amarsingh PW 5 is the plaintiff's son. He has also stated that he was present at the time of the purchase of the buffalo and that the defendant gave an assurance to the plaintiff that the buffalo belonged to him, and to no one else, as he had purchased it from Paudan Singh. The statements of these witnesses go to show that the defendant had given an assurance to the plaintiff that the buffalo belonged to him and that he was entitled to sell it. That this evidence is true, can be inferred from the statement of defendant Nemisingh himself. He has stated that he purchased the buffalo from Paudan Singh under entry Ex. A-1 of Bhadwa Badi 5, Smt. 2009, and that he gave an assurance to the plaintiff that it belonged to him. Banraj DW 4 has also stated that the defendant gave an assurance to the plaintiff that he was the owner of the buffalo. There is therefore ample evidence to prove that the defendant assured the plaintiff of his right to sell the buffalo. It is true that the plaintiff's notice Ex. 3 shows that, at the time of the purchase, the plaintiff warned the defendant that the buffalo which was with Paudansingh was; of a Baheti of Karel, and the plea of implied warranty of title would not be available if it can be shown that the plaintiff had guilty knowledge that the buffalo had been stolen or that, for any other reason it did not belong to the seller. This is so because the law recognises that a seller may sell only such title or interest as he may have in the property, so that if the nature of the seller's right is known to the buyer to be of a doubtful character, it would be proper to infer that the parties intended to buy and sell only such title as the seller had. But I find that, so far as the present case is concerned, it was not the defendant's case that there was any infirmity in his title or that he pointed out the doubtful character of his title to the plaintiff so as to take the case away from the purview of the law of implied warranty of title. On the other hand, as I have just mentioned, the defendant persisted, even when the plaintiff expressed a doubt that the buffalo might be of a Baheti of Karel, and assured the plaintiff that this was not so and that he was its owner by purchase. So when the defendant sold the property as owner, there is no reason why the plaintiff should not be entitled to the implied warranty of title, for it is an essential characteristic of an ordinary sale that it transfers the absolute or general property in the sold goods to the buyer. It has been argued on behalf of the respondent that this case would fall within the exception provided in the words "in a contract of sale, unless the circums-tances of the contract are such as to show a different intention" which occur at the beginning of sec. 14. According to the learned counsel, the circumstances of the case are such that the plaintiff would not be entitled to the benefit of the implied warranty of title. This submission has been made on the ground that the defendant was a bonafide purchaser for value and had led evidence to show how the buffalo was purchased by him and how he sold it to the plaintiff. According to the learned counsel, this is sufficient to bring the defendant's case within the above mentioned exception. I am afraid I cannot approve of this argument. The opening words of the section referred to above appear to have been inserted to exclude sales by sheriffs or forced sales by public auction and other cases where by implication or by express terms there is no warranty of title. It is therefore necessary, before taking the advantage of exception, to show that by implication, or by express terms, the parties agreed that there would be a warranty of title or, at any rate, that the seller had done all that he could to show that he was not giving any such warranty. As this was not so in the present case, and as the defendant had admitted that he assured the plaintiff of the genuiness of his purchase from Paudan Singh and of his sale to the plaintiff, the defendant must be held to be liable to refund the price, on failure of consideration, on the doctrine of implied warranty of title. When, therefore, it has been proved that there has been a total failure of consideration because of the defendant's defective title, there is no reason why the plaintiff should not be entitled to claim Rs. 400/- which he had paid to the defendant as the price of the buffalo. It may be mentioned that Mr. Inani has not been able to show how the plaintiff is entitled to his further claim for Rs. 100/ -. The appeal is therefore partly allowed, the judgment and decree of the learned Civil Judge of Ajmer, dated August 31, 1959, are set aside and the plaintiff's suit is decreed for the recovery of Rs. 400/- with proportionate costs throughout. . ;