1. The land in suit originally belonged to plaintiff No. 1's father Gulabehand who agreed to sell it to defendants Nos. 1 and 2 for Rs. 1,000 under an agreement, Exhibit 32, dated May 18, 1908, by which defendants Nos. 1 and 2 agreed to pay the purchase money in ten instalments of Rs. 100 each, and also agreed that if any two instalments remained unpaid the amount paid would not be refunded and defendants Nos. 1 and 2 would lose the right to have the lands sold to them, and that if the instalments were paid as agreed, plaintiff No. l's father was to execute a sale-deed in respect of the lands at the time of the last instalment. On the same day, a rent-note was passed in favour of plaintiff No. 1's father by defendants Nos. 1, 2 and 3 for two years reserving the rent of Rs. 99. The due dates of payment of rent coincided with the dates on which defendants Nos. 1 and 2 agreed to pay the instalments. The defendants failed to pay the rent, and the plaintiff No. 1's father applied to the Conciliator by application No. 26 of 1912 praying to recover the arrears of rent and to recover possession on the strength of the rent-note and on his title as owner. On February 6, 1912, the matter was compromised and the arrears of rent were ordered to be paid in three instalments with the condition that in case of default of any two instalments, plaintiff No. l's father was to recover possession of the land. The compromise was registered in the civil Court and a decree was passed on April 2, 1912. The decree was not executed by the plaintiffs. Defendants Nos. 1 and 2 paid Rs. 552. 13-0 after the date of the decree though they had already paid Rs. 134-8-0 before the date of the decree in accordance with the agreement, Exhibit 32.
2. The plaintiffs brought the present suit to recover possession of the land in both capacities as owners and landlords. The cause of action is said to have arisen on June 1, 1920, when the defendants did not deliver possession of the land when they were asked to do so as they did not act up to the conditions and terms of the agreement. The learned Subordinate Judge held that the suit was in time and ordered the plaintiffs to recover possession of the plaint land. On appeal, the learned District Judge held that the plaintiffs could not bring the present suit after allowing the execution of the previous decree to become time-barred.
3. Though the decree for possession obtained by the plaintiff No. l's father had become incapable of execution on account of the failure to apply for execution within limitation, the right eatablished by the decree remained. See Vasudeo Atmaram j08u v. Ebnath Balkrishna Thite I.L.R (1910) Bom. 79: 12 Bom. L.R. 956. But the right established by the decree could not be the basis of a subsequent suit, and the plaintiff who has neglected to execute the decree till it is time barred, cannot any the more on that account bring another suit for possession of the same property whether founded on the old decree in his favour or on the continued occupation of the same property by the defendant. See Sayad Nasrudin v. Vethhatesh Prabhu (1879) I.L.R. 5 Bom. 382 and Oman Sheikh v. Halakuri Sheik I.L.R (1905) Cal. 679. See also the remarks of Sadasiva Ayyar J. in Mayankutti v. Kunhammad I.L.R (1917) Mad. 641.
4. It is urged on behalf of the appellants that the present suit is brought on a different cause of action, namely, the breach of agreement, Exhibit 32, under which defendants Nos. 1 and 2 paid the amount of Rs. 552-13-0 after the previous decree and refused to vacate the land when they were asked to do so on account of breach of the conditions in the agreement, Exhibit 32. The possession of the property was not banded over to the defendants under the agreement Exhibit 32, nor is there any condition in the agreement, Exhibit 32, as erroneously supposed by the Subordinate Judge, to deliver possession on default of payment of any two instalments. Under the agreement, if there was default In the payment of any two instalments, the defendants' right to get the sale-deed came to an end without a right to have the previous instalments refunded. If a landlord brings a suit for possession on a rent-note and fails to recover possession on the ground that the rent-note is not proved, he is entitled to bring a suit for ejectment on his title as owner and on the allegation of a different legal relation between him and the defendants arising out of holding the lands and paying the rent in respect of them to the plaintiffs. See Girdhar Manordas v. Dayabhai Kalabhai I.L.R (1882) Bom. 174 In the present case, the defendants did not after the termination of the previous suit pay any rent to the plaintiffs. The plaintiffs had applied for an amendment to prove oral tenancy after 1912 but the amendment was refused. The plaintiffs in the counter written-statement alleged that Rs. 502-9-0 were paid in lieu of the rent of the plaint land. If after the termination of the previous suit it had been proved that the defendants paid the rent for the land or that the amount of Us. 502-9-0 was paid as alleged in respect of the rent of the land, the plaintiffs could have sued on their general title and on the jural relation created by the defendants' holding the land and the payment of the rent. The Subordinate Judge has referred to the statement of the defendant No. 2 that he paid five instalments as per terms of the agreement amounting to Rs. 552-13-0 after 1912. The payment is referable to the agreement Exhibit 32 and was not on account of rent. Even assuming in favour of the plaintiffs that there was a breach of the agreement Exhibit 32, it did not give rise to a cause of action to the plaintiffs to recover possession from the defendants, as possession was not delivered under the agreement, Exhibit 32, nor was there a condition in the agreement that on any breach of any condition, the defendants were to hand over the possession to the plaintiffs. The agreement was between plaintiff No. l's father and defendants Nos. 1 and 2, The rent-note was passed by defendants Nos. 1, 2 and 3. As against defendant No. 3, the plaintiffs cannot claim possession for the alleged breach of the agreement, Exhibit 32, for he was not a party to the agreement, and the decree against him for possession was not executed by the plaintiffs. The suit for possession, therefore, by the plaintiffs as against defendant No. 3 cannot succeed as there was no fresh cause of action after 1912. With regard to defendants Nos. 1 and 2, the breach of agreement, Exhibit 32, does not give rise to a cause of action for awarding possession against them. The remedy of the plaintiffs was by way of execution of the previous decree, and they cannot maintain the present suit as they have not proved that they have got a separate cause of action arising subsequently to the termination of the previous suit.
5. We think, therefore, that the decree of the lower appellate Court is right and this appeal must be dismissed with costs.
6. I agree. The agreement, Exhibit 32, between Gulabohand, ancestor of plaintiffs, and defendants, dated May 18, 1908, provides that on failure to pay the instalments the defendants should lose the right to have the land sold to them. The agreement does not create in the defendants any right to occupy the land, which must be referred to the rent note. On that rent note the plaintiff has already secured a decree, which he did not execute, and under the ruling in Sayad Nasrudin v. Venkatesh Prabhu I.L.R (1879) Bom. 382 he can only proceed by execution of the said decree, and not otherwise, and if he neglects to do so till it is time-barred, he cannot bring another suit for possession of the same property, whether founded on the old decree in his favour, or on the continued occupation of the said property by the defendant. The present suit cannot be founded on the breach of the agreement, since the agreement has no reference to possession. There has been no payment of rent after the termination of the previous suit, and any payments under the agreement would not give rise to any cause of action to the plaintiffs to recover possession, and, as has been pointed out by my learned brother, defendant No. 3 was not a party to the agreement. There has been no fresh cause of action subsequent to the termination of the previous suit, and the view of the appellate Court appears to be right, and I agree that the appeal should be dismissed with costs.