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Dola Khetaji Vahivatdar Vs. Balya Kanoo Patel - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 248 of 1921
Judge
Reported in(1922)24BOMLR236; 66Ind.Cas.815
AppellantDola Khetaji Vahivatdar
RespondentBalya Kanoo Patel
DispositionAppeal dismissed
Excerpt:
.....sued in 1911 to redeem the property under section 10a of the dekkhan agriculturists' relief act 1879, alleging that the sale was a mortgage. the suit failed. the plaintiff sued again in 1918 to recover the property on payment of rs. 395 under the satekhat. a question having arisen whether the second suit was barred as res judicata:-;that the second suit was not barred by res judicata, for the plaintiff was not bound in the first suit to have sued also for specific performance. the two suits were mutually inconsistent and if the plaintiff failed in proving the mortgage, he still had a number of years left under the satekhat within which he could have sued to get back the property on payment of the consideration mentioned in the satekhat. - - the two suits were mutually..........plaintiff filed a suit in 1911 claiming to redeem the property on the ground that the document of the 16th march was a mortgage, seeking the protection afforded by section 10a of the dekkhan agriculturists' relief act. that suit was dismissed. before twelve years had expired the plaintiff sued again to recover the property on payment of rs. 395. it was contended that that question was res judicata as the plaintiff might in his original suit of 1911 have sued in the alternative for specific performance of the satekhat. whether he could have sued in the alternative for specific performance in his redemption suit need not be determined. it certainly cannot be said that he ought to have done so. the two suits were mutually inconsistent and if the plaintiff failed in proving the mortgage,.....
Judgment:

Norman Macleod, C.J.

1. The plaintiff sold the suit property to the defendant on the 16th March 1906, continuing to remain in possession as tenant. On the 13th August 1906, the defendant executed in his favour a satekhat to sell the property to him at any time within twelve years for Rs. 395, Rs. 5 being paid as earnest money. The plaintiff filed a suit in 1911 claiming to redeem the property on the ground that the document of the 16th March was a mortgage, seeking the protection afforded by Section 10A of the Dekkhan Agriculturists' Relief Act. That suit was dismissed. Before twelve years had expired the plaintiff sued again to recover the property on payment of Rs. 395. It was contended that that question was res judicata as the plaintiff might in his original suit of 1911 have sued in the alternative for specific performance of the satekhat. Whether he could have sued in the alternative for specific performance in his redemption suit need not be determined. It certainly cannot be said that he ought to have done so. The two suits were mutually inconsistent and if the plaintiff failed in proving the mortgage, he still had a number of years left under the satekhat within which he could have sued to get back the property on payment of the consideration mentioned in the satekhat. We think, therefore, the decision of the lower appellate Court is right and the appeal must be dismissed with costs.


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