JUDGMENT Praksh Krishna, J.
1. This is plaintiffs appeal. It arises out of original suit No. 235 of 1970 filed by the present appellant against the respondents for recovery of damages on the ground of breach of a covenant for title and quiet enjoyment. He claimed recovery of Rs. 8,000/- as principal consideration and Rs. 9,600/- as interest at the rate of 12 per cent per annum for the period 21-11-1960 till the date of filing of the suit and Rs. 4,000/-towards expenditure incurred by the plaintiff in contesting the suit filed by one Hanuman Prasad. The plaint was amended subsequently. By this amendment an alternative relief for recovery of Rs. 6,250/- i.e. half amount of principal consideration of two sale-deeds plus interest and expenditure of litigations were claimed.
2. The subject matter of the suit is house No. CK 43/1 Mohalla Govindpura in the City of Varanasi. One Qudrat Ali was the owner of the said house. He had purchased the house in the name of his second wife Smt. Mehadi Begum who later on gifted the same to him on 24-10-1927. The plaint discloses that the said house was subjected to successive transfers and was involved in litigation. However, those transfers being beyond the scope of the present suit, It is not necessary to notice them in extenso. Suffice it to say that ultimately one Gulam Abbas claimed to be exclusive owner of the said house on the basis of sale-deed dated 30-8-1940 executed by Smt. Hasina. Gulam Abbas executed two sale-deeds both dated 28th July, 1955. Eastern half portion of the house was sold to the plaintiff and western half portion to the defendant No. 1 Ram Prasad Ram Prasad on 21-11-1960 sold the half western portion also to the plaintiff; resultantly the plaintiff became the exclusive owner of the house in question.
3. One Hanuman Prasad filed a suit No. 58 of 1964 for partition against the present plaintiff and defendants and certain other persons claiming his half share in the disputed house for partition on the assertion that Gulam Abbas had only half share in the house in the suit. Hanuman Prasad also claimed half share by means of some sale-deed in his favour. In this suit of Hanuman Prasad, besides other persons the present plaintiff and defendants were impleaded as defendants. The plaintiff having purchased the share of defendant No. 1 by means of sale-deed dated 21-11-1960 as referred above, unsuccessfully defended the suit No. 58 of 1964 up to Apex Court. The Supreme Court held that Hanuman Prasad and Gulam Abbas (vendor of the plaintiff) were the co-owners of the house in question and thus Hanuman Prasad, the plaintiff of suit No. 58 of 1964 is entitled for half share in the house in question and a preliminary decree for partition as passed by the trial Court was confirmed by the Supreme Court. Proceedings for preparation of final decree were initiated and the executing Court proposed the Qurras of the parties. Being dissatisfied by the allotment of Qurras an appeal was filed in the High Court. It remained pending for a considerable time. As informed by the counsel for the parties, the said appeal has been decided by this Court during the pendency of the present appeal.
4. The appellant, Ram Avtar, filed the suit No. 235 of 1970 giving rise to the. present appeal for recovery of damages against Ram Prasad, defendant No. 1, and heirs and legal representatives of Gulam Abbas, namely, defendants Nos. 2, 3 and 4, for breach of covenant of title, possession etc. in respect of the half share in the house in suit.
5. The suit was contested by the defendants No. 1 and 2 only and it proceeded ex parte against the remaining defendants. The defendant No. 1 upto paragraph No. 43 of the written statement has set out various transactions with respect to the property in question. In subsequent paragraphs he has pleaded that the plaintiff after making necessary enquiries and after being satisfied with the title of the defendant No. 1 got executed the sale-deed dated 21-11-1960. It has been further pleaded that the present plaintiff Ram Avtar did not properly contest the suit No. 58 of 1964 and he contested the suit upto Supreme Court for the sake of name.
6. The further plea is that the plaintiff has not been dispossessed from the western half portion of the house in question and as such he is not entitled to get a decree either for damages, for breach of covenant or for refund of amount or interest. The written statement of the defendant No. 2 has not been printed in the paper book. From the paper book it appears that an additional written statement was filed by the defendant No. 2 on the pleas that Gulam Abbas executed two sale-deeds both dated 28th July, 1955 by dividing the house in two portions. The maps of respective portions have been annexed with the sale-deeds. There was privy of contract and transaction and separate warranty of title and as such both the sale-deeds could not be clubbed together. It was personal act of Gulam Abbas for which his heirs are not liable. The suit is liable to be dismissed being premature.
7. The following issues were framed by the trial Court :--
1. Whether plaintiff has been dispossessed of any portion of the house? If so, which portion? Its effect?
2. Is the suit premature?
3. Whether plaintiff is entitled of sale consideration or portion thereof? If so, from whom?
4. Whether plaintiff is entitled to get any interest? If so, what is the extent of each defendants liability?
5. Whether plaintiff is entitled to get costs of litigation?
If so, what is the extent of each defendant's liability?
6. Whether suit is barred by estoppels and acquiescence?
7. Whether the plaintiff has realized rent from tenants?
If so, what amount and its effect?
8. Is defendant No. 2 entitled to special costs?
9. Relief?"
8. The trial Court decided the issues No. 1 and 2 together. It has been held that the suit is premature as the plaintiff has not been dispossessed from the house in question. On issue No. 3 it has been held that the plaintiff is not entitled to the refund of sales consideration. Similarly the issues Nos. 4, 5 and 7 were decided against the plaintiff. On issue No. 6 it was held that the principle of estoppel and acquiescence could not be shown to be attracted in the case. Issue No. 8 was decided in negative.
9. Heard the counsel for the parties and perused the record. The counsel for both the parties agreed that only issues Nos. 1, 2 and 3 are the basic issues for the decision of the present appeal. The findings on issues No. 1 and 2 were challenged and it was submitted that the trial court wrongly evaluated and considered the oral and documentary evidence on the record. Further it was argued that the trial Court misinterpreted the relevant law and as such the decree passed by it should be reversed. In contra, the learned counsel for the respondent supported the judgment of the trial court.
10. The crucial question to be decided in the present case is as to whether the findings of the trial Court that the suit is liable to be dismissed being premature is legally and factually correct. To arrive at that finding the trial Court has taken into consideration the oral statement of plaintiffs witness namely Jagarnath PW-2, who has stated that the plaintiff is in occupation of the entire upper storey in the house in suit, has admitted that the plaintiff Ram Avtar has one shop on the ground floor of the eastern portion of the house and he is in possession over the ground floor and the eastern portion of the house in suit as well. PW-2 Jagarnath is one of the tenants of the shop in the house in question. He has deposed that besides him there are other tenants, namely, Ram Kumar and Gauri Shanker.
11. From the evidence on record it is clear that there is no dispute between the parties that there are tenanted shops on the ground floor. The plaintiff as PW-3 and his witness PW-2 have unequivocally deposed that Hanuman Prasad served notices claiming half of rent, on the tenants. The tenants after the receipt of the notices started paying rent to both Hanuman Prasad and the plaintiff. Initially the shops were let out around 1962 to the tenants by the plaintiff. But after defeat of the plaintiff at the hands of Hanuman Prasad in suit No. 58 of 1964 and in execution proceedings thereof Hanuman Prasad started realizing rent from the shops situate in property in dispute. The copy of the notice dated 1-10-1972 given by Hanuman Prasad to the tenant Kedar Nath demanding half of rent is on the record as Ex. 12 and another notice dated 2nd of Oct. 1972 to tenants Ram Kumar and Shanker is Ex. 9. PW-2 Jagarnath is son of tenant Kedar Nath to whom notice dated 1-10-1972 was given. In the notice it has been mentioned that a decree for partition was passed in suit No. 58 of 1964 and in appeal No. 355 of 1978 from the Court of First Additional District Judge, Varanasi, it has been finally decided by the judgment dated 16-8-1972 that half of the western portion of the disputed house has come in the share of co sharer namely Hanuman Prasad and the other half portion has come to the share of Ram Avtar. The tenants were required to pay half of the rent to Hanuman Prasad and also the enhanced rent in view of the commencement of U.P. Act No. 13 of 1972. The PW-2 Jagarnath has stated that his father started paying half of rent to Hanuman Prasad in pursuance of the aforesaid notice. He also placed on record the receipts evidencing the receipt of the rent by Hanuman Prasad. These rent receipts are Exs. 13 to 18, 28 and 29. Thus the oral deposition of PW/2 is fully corroborated by the documentary evidence. The defendants neither disputed the factum of payment of half of rent nor there is any evidence to the contrary. The learned counsel for the respondent could not point out any contrary evidence nor he could dispute the factum of payment of rent by the tenants to Hanuman Prasad. Payment of half rent to each, Hanuman Prasad and the plaintiff appellant is fully established on the record. The next question which rises for consideration, is, its effect on the right, title and interest of the plaintiff-appellant?
12. It is necessary to notice at this stage the facts relating to the filing of partition suit No. 58 of 1964 by Hanuman Prasad for partition of the disputed house and the execution proceedings in consequence of the decree thereof. Hanuman Prasad filed suit No. 58 of 1964 for partition of his half share. The suit was dismissed by the trial Court but was decreed by the first appellate Court. The said decree was confirmed in the second appeal No. 72 of 1968 by the High Court. The Supreme Court by its judgment dated 15-9-1970 confirmed the judgment of the High Court and dismissed the appeal. Thereafter Hanuman Prasad the decree holder took steps for the preparation of final decree. The Court Amin proposed the Qurras of the respective parties and submitted a report which was accepted by the Executing Court by the Judgment dated 4-10-1971 that the eastern portion be allotted to Hanuman Prasad. This judgment was subject matter of execution appeal No. 355 of 1971. The appellate Court modified the proposed Qurras by the trial Court and exchanged the portions between the parties by making certain adjustments. Under the judgment of the first appellate Court in appeal No. 355 of 1971 western portion was allotted to Hanuman Prasad. It appears that against this judgment a second appeal was filed by the present plaintiff which was pending during the pendency of the suit giving rise to the present appeal. There is no whisper in the judgment of the trial Court that the present plaintiff Ram Kumar had obtained any stay order in the second appeal. The trial Court from the pendency of the second appeal concluded that "final decree and scheme of partition prepared have not yet become final between the plaintiff Ram Avtar and Hanuman Prasad in respect of their respective half share in the house in suit. The possession of the plaintiff Ram Avtar has not been disturbed, much less he has been dispossessed in execution of any decree passed in favour of Hanuman." This is the central theme of the Judgment of the trial Court, whether it is legally correct is to be examined, here. The trial Court has held that the possession of the plaintiff and right to enjoy the property is undisturbed over the entire house in suit and after placing reliance upon three rulings reported in AIR 1939 Oudh 141, AIR 1930 All 771 and AIR 1932 Nagpur 5 held that Hanuman Prasad has not put his decree in execution nor has got possession over his half share in the house in suit nor the plaintiff purchaser has been dispossessed. This finding of the trial Court is incorrect. The trial Court lost the sight of the fact that besides obtaining the decree for partition of half share, the decree for partition was put into execution by Hanuman Prasad. The Executing Court as a matter of fact carved out respective Qurras of the parties. There is no whisper that any stay order was obtained in the execution second appeal by any party. The tenants started paying rent to Hanuman Prasad in pursuance of the notice given by him on the strength of the judgment of the appellate Court in appeal No. 355 of 1971. The possession may be either actual or constructive. The lessee is In actual possession of the property leased to him on behalf of the lessor but the lessor remains in constructive possession in the eyes of law. The tenants acknowledged Hanuman Prasad as landlord of the tenanted shop and attorned the contract of the tenancy although the shops were let out by the present plaintiff appellant. The trial Court has totally ignored the voluminous documentary evidence such as, notice given by Hanuman Prasad to the tenants to pay half rent to him, receipts of rent given by Hanuman Prasad to the tenants, the filing of the execution application by Hanuman Prasad and passing of the final decree by the executing Court. By overlooking the documents it has wrongly come to the conclusion that the plaintiff is still in possession of the entire house.
13. There is one more aspect which needs serious consideration at this stage. Hanuman Prasad filed three SCC Suits No. 102, 108 and 109 of 1968 against the tenants and Ram Avtar was impleaded in all these suits as defendant No. 2. The tenants were Gauri Shanker, Kedar Nath and Shanker. Hanuman Prasad in all these suits pleaded that he was owner and in possession of the half share of the house in question and claimed recovery of rent of his share. It was further stated that Gauri Shanker was tenant at the rate of Rs. 25/-per month and was in arrears from 30th July 1963 in spite of demand on account of collusion with the defendant No. 2. Similar allegations were made in other suits. Ram Avtar, the present plaintiff appellant was impleaded in these cases as defendant No. 2. The Judge Small Causes Court examined the plea with regard to the ownership of Hanuman Prasad in respect of half share of the house in question and came to the conclusion that the plaintiff of that suit namely Hanuman Prasad was the owner of the half share in the house in question and the defendant No. 2 was owner of the remaining half share of the house in question and decreed all the three suits. This judgment was challenged by filing Civil Revisions No. 34 of 1970, 35 of 1970, 45 to 1970, 46 of 1970, 50 of 1970 and 73 of 1970. The First Additional District Judge by the judgment dated 20-2-1973 confirmed the findings recorded by the Judge, Small Causes Courts with a slight modification in quantum part on the finding that share of Hanuman Prasad and Ram Avtar were well defined as half each. It further held that Ram Avtar was liable to refund the rent of share of Hanuman Prasad realized by him from the tenants and the tenants of the three suits were liable to pay half of the rent to Hanuman Prasad of the period of which they had not paid rent to Ram Avtar. A certified copy of the judgment dated 20-2-73 of the Revisional Court was filed by Ram Avtar along with an application dated 23-4-1973. The said application was rejected by the trial Court on the same date on the short ground that the defendant No. 1 was in the witness box and the application was belated. The rejection of the application for taking certified copy of the judgment on record is legally not correct. In the application it was stated that the certified copy of the judgment dated 20-2-1973 could be obtained only on 19th April 1973. The Court below ought to have taken the said document on record. It being the certified copy issued from the office of a Court did not require any proof and its relevancy could have been adjudged at the time of the hearing of the suit. Therefore, I take the said document on record as evidence of the plaintiff. In this connection it is relevant to notice here that the copy of the plaint of suit No. 58 of 1964 filed by Hanuman Prasad for partition is as Ex. 3. The certified copies of other documents relating to the suit and appeal are on the record. Hanuman Prasad was not a stranger either to the plaintiff or to the defendant. In such circumstances the copy of the judgment of a suit filed by Hanuman Prasad against the tenants of the disputed property should have been taken on record as evidence to adjudicate the point as to whether Hanuman Prasad has realized the rent from the tenants. A judgment not inter parties is only admissible under Section 13 and Section 43 of Evidence Act as establishing a particular transaction in which the right was asserted and recognized. The passing of decree in favour of Hanuman Prasad against the tenants and the present plaintiff Ram Avtar clearly amounts to dispossession of Ram Avtar from half portion of the property in suit. The trial Court itself in the Judgment at one stage has noticed that the plaintiff is in possession of the major portion of the house in dispute and is enjoying the entire usufruct. This shows that the trial Court itself was not fully confident that the plaintiff was in exclusive possession of the entire house in question. The trial Court has also ignored that the tenants have started paying the half of the rent to Hanuman Prasad. The unrebutted documentary evidence by way of rent receipts Exs. 13 to 18, 20 and 22 has been ignored. Therefore I am of the view that the payment of half of rent by the tenants to Hanuman Prasad and decree passed in suit by Judge, Small Causes Court for recovery of rent in favour of Hanuman Prasad against the tenants and Ram Avtar clearly amounts to dispossession of the plaintiff from half portion of the disputed house.
14. The Supreme Court in the case of Vasant Kumar Radha Kishan Vora v. The Board of Trustees of the Port of Bombay, AIR 1991 SC 14 has held that Section 109 of the Transfer of Property Act applies to the lessor's right inter vivos. It has been further held that when right, title or interest stand transferred by operation of law, the spirit behind Section 109 of the Transfer of Property Act perforce would apply and the successor in interest would be entitled to the rights of the predecessor. The aforesaid observations were made by the Supreme Court in connection of a notice terminating the tenancy. The said notice was given by the lessor but before the expiry of period of notice Major Port Trust Act was made applicable to the premises in question. The question arose as to whether the notice given by the erstwhile lessor would enure for the benefit of the successor in interest. With the aid of Section 109 of the Transfer of Property Act it was held that the successor in interest would be entitled to maintain the suit for eviction given by the predecessor in interest. In the case in hand, therefore, there is no difficulty in holding that Hanuman Prasad came in possession of half of the property by operation of law, as lessor.
15. Now it is necessary to consider the rulings relied by the trial Court to hold that the suit is premature. In AIR 1930 All 771 Muhammad Siddiq v. Muhammad Nuha it has been held that a mere apprehended breach of covenant of title may not entitle the plaintiff to claim for damages when no loss has actually occurred unless of course the plaintiff could avoid the whole contract itself on the ground of fraud, misrepresentation or mutual mistake. It has been held that so long as the plaintiff actually remained in possession, he has got some consideration for his money and it is difficult to say that the consideration has already totally failed because the suit has been decreed against him. The aforesaid case law is not applicable to the facts of the present case and it is quite distinguishable. In the case in hand it has come on record that the plaintiff Ram Avtar has actually suffered loss and damages as tenants started paying half rent to Hanuman Prasad. Hanuman Prasad was not a mere decree holder but he had put the decree in execution also. He filed the suit for recovery of his share of rent against the tenants and Ram Avtar. Further the aforesaid case was decided with reference to the question of limitation for filing of suit. It was held that the total failure of consideration took place on 23rd August 1924 when the plaintiff was actually dispossessed by the reversionary heir. It was held that the suit was within the time. However it was further held that the suit is not actually for the recovery of original price because the consideration did not fail. From the very beginning it is for damages for the loss suffered by the plaintiff on account of breach of contract. The High Court confirmed the award of damages, by dismissing the appeal.
16. No doubt in AIR 1936 Oudh 141 Bhagwati Prasad v. Badri Prasad it has been held by the Division Bench of this Court that compensation can be claimed for breach of a contract under Section 73, of Contract Act, only when any loss or damage is caused by the breach. Where a person purchases certain property and subsequently a decree is passed for proprietary possession in favour of a third party, no loss or damage can be said to have been caused to the purchaser by mere passing of the decree as to entitle to sue for damages for breach of contract. The mere passing of the decree does not constitute a cause of action and the cause of action does not accrue until the purchaser has been dispossessed in execution of the decree. A suit brought by the purchaser for refund of purchase money or for loss or for damage for breach of a contract before he is actually dispossessed in execution of decree is, therefore, premature, until and unless the purchaser is ejected in execution of the decree he is legally entitled to remain in possession.
17. On the first flash the aforesaid observations appears to be fully applicable in the facts of the present case. But after going deep into the matter it is not so. What has been said in the aforesaid ruling is that mere passing of a decree does not give a cause of action to the purchaser to file a suit for compensation for loss or damages caused by breach of the contract unless and until the purchaser is ejected in the execution of the decree. It has been demonstrated above that the present is not a case of mere passing of a decree against the purchaser (plaintiff). Not only the decree has been passed but it has been put into execution and final decree for partition carving out the Qurras, which amounts dispossession of the plaintiff from the part of the property has been passed. The tenants have started paying half of rent to Hanuman Prasad. Thus, it cannot be said that the plaintiff has not suffered any loss or damage.
18. Moreover, the aforesaid observations were made in the above ruling in connection with the applicability of the relevant articles of Old Limitation Act. The Court while examining the applicability of Article 116 or of Article 117 of the Limitation Act made the aforesaid observation with respect to the Section 73 of the Contract Act. Section 55(2) of the Transfer of Property Act creates an implied covenant for title and quite enjoyment of the property by the purchaser. In the aforesaid case this Court on the terms of the sale deed involved therein held that the plaintiff had not got any cause of action in the suit as they had not been dispossessed. It was held on the interpretation of the sale deed involved therein that the intention of the parties was that buyer could claim compensation until and unless he is dispossessed and that contingency has not yet arisen. Evidently the said proposition is not applicable to the facts involved in the present case. It is apt at this stage to notice a judgment of the Supreme Court in the case of V.M.Rv. Ramaswami Chettiar v. R. Muthu Krishna Aiyar, AIR 1967 SC 359. On the similar facts it has been held as follows :--
"The sale of half share of defendant No. 3 was not void ab initio but it was only voidable if defendant No. 3 chose to avoid it and prove in the Court that alienation was not for legal necessity. In the case of this description the indemnity bond becomes enforceable only if the vendee is dispossessed from the property in dispute. A breach of covenant can only occur on the disturbance of vendee's possession and so long as the vendee remains in possession he suffers no loss and no suit can be brought for damages either on the basis of indemnity bond or for breach of a covenant of the warranty of a title."
19. The emphasis of the Court in such type of cases is that a vendee unless is dispossessed suffers no loss and no suit can be brought, for damages. To put it differently unless the vendee has suffered some loss, mere passing of a decree against him will not give a cause of action to such vendee to recover damages for breach of covenant of title. These cases do not lay down that the dispossession of the vendee should be actual. The ratio of these cases appears to be the suffering of actual loss or damage by the vendee. In the case in hand, damage or loss to the plaintiff is writ large and fully proved from the evidence on record.
20. In the result the findings of the Court below on issues No. 1 and 2 cannot be sustained. It is held that the suit is not premature.
21. While deciding the issue No. 3 the Court below proceeded with the assumption that it was required by the plaintiff Ram Avtar to establish in this case also against the present defendants that Gulam Abbas had no title to the house in suit and the recitals in the sale deed that Gulam Abbas was the exclusive owner of the house in suit were false. The question as to whether Gulam Abbas was the exclusive owner or was a co-sharer was examined in earlier litigation, in suit No. 58 of 1964 filed by Hanuman Prasad against the present plaintiff, Ram Avtar and others. Copy of the plaint of suit No. 58 of 1964 is Ex. 8. From the array of the parties it is clear that besides Ram Avtar and Ram Prasad Gulam Abbas was impleaded as defendant No. 3. In para 5 of the plaint it was pleaded that Gulam Abbas was a cosharer who sold the property to Ram Avtar and Ram Prasad. The property originally belong to one Qudrat All. Hanuman Prasad claimed half share on the basis a sale deed. The copy of the decree of the suit is Ex. 3. In that litigation it was held that Gulam Abbas had only half share. It has been found that Gulam Abbas and Ahsan became co-sharers of the disputed house by passage of time. Gulam Abbas applied for scoring the name of other cosharer, Ahsan. The name of Ahsan was scored on 11-4-1955. Subsequently Ahsan transferred his half share in 1963 to Hanuman Prasad. In the mean time Gulam Abbas executed two sale deeds both dated 28th July 1955 in respect of the house in question. Gulam Abbas sold eastern portion of the house to the plaintiff and western portion to the defendant No. 1 Ram Prasad who on 21-11-1960 sold the western portion also to the plaintiff. In the earlier litigation namely in suit No. 58 of 1964 the extent of title of Gulam Abbas in the disputed house was very much in issue in between the parties. It was held that Gulam Abbas had only half share. This finding was confirmed upto the Supreme Court. The judgment of the High Court is on the record. But the judgment of the Supreme Court is not printed in the paper book. Therefore, the finding of the Court below that the plaintiff has to prove in this case also that Gulam Abbas was not the exclusive owner, before claiming any damages, cannot be sustained. The judgment of High Court holding that Gulam Abbas is not an exclusive owner is binding on the parties, and cannot be brushed aside by the Court below. Be that as it may, the plaintiff has pleaded that facts relating to the earlier litigation initiated by Hanuman Prasad in paragraphs No. 8 to 12 and 14 to 15 of the plaint. The decrees and judgments of the suit No. 64 of 1968 are on the record of the case. The defendant except making a bare denial has not produced any evidence to show that Gulam Abbas was the exclusive owner of the property in question. These judgments and decrees should have been read by the Court below in support of the plea that Gulam Abbas was only a co-sharer.
22. Now question arises with regard to the grant of amount of compensation to the plaintiff against the defendants for the breach of covenant and the breach of conditions of contract. Condition No. 4 of sale deed dated 21-11-1960 executed by the defendant No. 1 in favour of the plaintiff provides that the defendant No. 1, vendor is the exclusive owner of the property to be sold by means of sale deed and has its clear title free from any litigation either civil or criminal. The property to be sold was purchased by the vendor from his own capital and no other person has any right, title or share in the said property. If for one reason or the other subsequently it is found that the title of the vendor was defective or the property goes out of possession of the vendee (plaintiff) and he suffers damages, then the vendee would be entitled to recover the sale consideration along with the cost and damages with interest at the rate of 1 per cent per month from the vendor, defendant No. 1.
23. Gulam Abbas sold the half portion of the house to the plaintiff and the remaining half portion of the house to the defendant by means of two sale deeds dated 29th July, 1955 each for Rs. 4500/-. The defendant No. 1 sold the property purchased from Gulam Abbas to the plaintiff on 21 -11 -1960 for a sum of Rs. 8,000/-. The plaintiff remained in occupation of the property and enjoyed it. The First Additional District Judge by its judgment dated 20th February, 1973 passed in Civil Revision No. 34 of 1970 along with the other connected revisions held that Ram Avtar who was defendant No. 2 in Small Causes Suits and is plaintiff in the suit had received rent from three tenants upto 31st of October, 1967 and ordered the payment of half of the rent, thus realized to Hanuman Prasad from 1st of March, 1965 to 31st of October, 1967. Thus it is clear that the plaintiff enjoyed the entire house upto February, 1965. In the suit the plaintiff has claimed for recovery of Rs. 8,000/-, the principal consideration plus Rs. 9600/- as interest at the rate of 1 per cent per month for the period 21st November, 1960 to the date of suit plus Rs. 4000/- as expenditure incurred by the plaintiff in contesting the suit filed by Hanuman Prasad. In alternatively he claimed recovery of Rs. 6250/- i.e. half of the principal consideration of the two sale deeds plus interest and expenditure of litigation. The trial Court has not recorded any finding on the question of damages. The matter is very old and it is not appropriate at this distance of time to remand the same to the trial Court. Under issues Nos. 4 and 7 the trial Court has recorded a finding that the plaintiff has filed receipts of Rs. 1250/- paid towards the lawyer fees with the observation that the plaintiff must have had incurred this amount besides the other amounts in contesting the case before the trial Court, appellate Courts and before the Supreme Court. At least this amount should have been awarded by the Court below towards the expenditure incurred by the plaintiff. To consider the damages for breach of covenant of title the fact that at least the plaintiff has got the half portion of the house and he remained in occupation over the entire house for a considerable period of time and realized the rent from the tenants should also be taken into consideration. He paid Rs. 8,000/- for the half share to the defendant No. 1. The defendant No. 1 had purchased this half share for a sum of Rs. 4500/- in the year 1955 which was sold for a sum of Rs. 8,000 A in the year 1960 to the plaintiff and thus he earned profit of Rs. 3500/-. The heirs of Gulam Abbas have been impleaded as defendants Nos. 2 to 4. It is not appropriate to saddle the defendants Nos. 2 to 4 for an action of Gulam Abbas done in the year 1955.
24. The question that arises for consideration is the measure of damages. The plaintiff has claimed the proportionate amount of original consideration, and not the present market value of the property. It has been held in few cases that measure of damages is the price of the land at the time of eviction. Actually speaking the present suit is not really a suit for recovery of original price, because the consideration did not fall from the very beginning, but it is for damages for the loss suffered by the plaintiff on account of breach of contract, the measure of damages should be the extent of loss suffered by the plaintiff. The real loss to him is the loss of property, that is to say it is going out of its possession subsequently, in execution of the final partition decree and of passing of decree against him along with tenant in the suits filed by Hanuman Prasad for recovery of part of rent. In order to compensate him fully and put him in a position, as if he has suffered no loss whatsoever, one would have to deliver him another property of the same values as that which he lost, it therefore, follows that measure of loss to him is the market value of the property at the time when it goes out of his possession. It would be both inequitable and injustice to base the amount of damages on the price paid in the year 1955 or in the year 1960. The plaintiff, admittedly, continued to enjoy the property for subsequent period also and he has received rent from the tenants and enjoyed profits from the property. There is no evidence on the record to show that he has made any improvement in the house in question. In view of these circumstances some damages has to be awarded to the plaintiff.
25. Taking into consideration the entire facts and circumstances of the case and the fact that litigation is old one, and the defendant No. 1 had paid Rs. 4500/- to Gulam Abbas a sum of Rs. 3,125/- (half of the amount claimed) is awarded as damages for the breach of covenant of the title. Thus the plaintiff is entitled to recover a sum of Rs. 3,125/- from the defendant No. 1 alone with simple interest at the rate of 12 per cent per annum from the 1st March, 1965 (from 1st March, 1965 onwards the Judge, Small Causes Court passed order for half payment of rent to Hanuman Prasad) upto the date of payment. Besides it, the plaintiff is also entitled to recover a sum of Rs. 1250/- towards the litigation expenses incurred in the earlier litigation with interest at the rate of 6 per cent per annum from the date of filing of the suit till the date of payment from the defendant No. 1.
26. In the result the judgment and decree of the Court below is set aside. The appeal is allowed in part and the suit is partly decreed for the recovery of Rs. 3,125/- as damages from the defendant No. 1 alone with simple interest at the rate of 12 per cent per annum from the 1st March, 1965 (from 1st March, 1965 onwards the Judge, Small Causes Court passed order for half payment of rent to Hanuman Prasad) upto the date of payment. Besides it, the plaintiff shall also be entitled to recover a sum of Rs. 1250/- as held above with interest at the rate of 6 per cent per annum from the date of filing of the suit till the date of payment from the defendant No. 1. No order as to costs.