1. This is a second appeal by the defendants against a decree of the lower Appellate Court awarding the plain, tiffs Rs. 750 on account of 7 bighas 10 biswas with interest as damages for breach of the covenant of title and quiet possession. There was a sale deed executed by the defendants on 23rd July 1924. This sale deed transferred zamindari property described as follows:
We the executants have therefore, while in a sound state of body and mind and of our own free will and accord, absolutely sold the entire land, situate in Mauza Nagal Jwalapur, Pargana Purwa, District Dehra Dun, which stands recorded in the khewat of the said village in the name of us the executants or in the name of any of us and which comprises 400 bighas and 4 biswas.
2. The sale deed was registered on the following day and the plaint set out that on the next day after the registration of the sale deed the defendants made an application for mutation of names in favour of certain persons not parties to the suit in whose favour they had many years previously made a shankalap of 7 bighas 10 biswas of land in the area which was sold. The plaintiffs accordingly applied for mutation for the area less 7 bighas 10 biswas, that is for 392 bighas 14 biswas and mutation was made in this manner for the plaintiffs and for the 7 bighas 10 biswas of land for the shankalapdar. It has been found by the Courts below that the shankalap or grant for religious purposes had been made by the defendants or their predecessors some 60 or 70 years before the suit. The plaint sets out in paras. 7 and 10 that Rs. 750 is the price or value of the 7 bighas 10 biswas of land and that the defendants are liable to put the plaintiffs in possession of the area or to pay to the plaintiffs Ma. 750. As the shankalapdar was not made a party to the suit, no decree for possession was possible; but the lower Appellate Court has granted a decree for Rs. 750.
3. Two questions have been raised before us in appeal. The first question was that the defendants were not liable to make any payment on this account to the plaintiffs. The argument is expressed in the second ground of appeal by saying that there was no undertaking by the vendors that actual possession would be given to the vendee over the 7 bighas 10 biswas covered by the rent-free grant and in the fourth ground that the position was confirmed by the conduct of the vendees by assisting the grantees to obtain mutation and by applying for mutation for themselves for the less area. In the written statement of defendant 1, para. 3, additional pleas, it was alleged that before the sale the plain, tiffs were fully aware of the shankalap and that after the execution of the sale deed the rent-free grantees raised some objection and the plaintiffs then made them file an application for mutation. It is to be noted that there was no definite pleading that there was any separate oral agreement between the parties that the plaintiffs were not to get possession of the 7 bighas 10 biswas. The pleading by defendants, both in the appeal to this Court and in the written statement, is merely that the plaintiffs were aware of the shankalap and that there was no positive agreement for giving possession of this area. Now as regards the awareness of the plaintiffs, it was not pleaded that they were aware that this shankalap was part of the land which was sold, nor is there any such finding of the lower Appellate Court. The trial Court applied the presumption and stated:
The plaintiffs have zamindari adjoining the village in question. They must have known the existence of these muafi rights on this part of the defendants' land.
4. The conclusion is obviously erroneous because the land sold formed only a part of the village and mere knowledge that a certain area was shankalap would not involve in it that that area was within the part of the village sold. The lower Appellate Court has set aside the decree of the trial Court on this point and the finding of the lower Appellate Court is binding on us and that Court apparently did not agree with the finding of the trial Court that the plaintiffs had full knowledge of the grant and acquiesced in it. The lower Appellate Court states:
Mere knowledge on the transferees' part in the absence of an express contract cannot affect plaintiffs' right in any way.
5. The Evidence Act, Section 92, Proviso (2) states:
The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved.
6. Now there is no separate oral agreement set up and even if there had been it could not have been proved under this Proviso because any such agreement would be inconsistent with the terms of the sale deed. The terms of the sale deed are that the vendors sell the whole 400 bighas 4 biswas and at the and of the sale deed it is stated:
We further covenant that the property sold aforesaid does not stand charged to any one in any way by moans of sale, mortgage, etc. The property sold is sold free from all sorts of debts and liabilities.
7. We think these words are wide enough to be inconsistent with the existence of the shankalap and it is to be noted that the shankalap was not entered in the khewat at the time of he sale deed. There is a clause in the sale deed as follows:
If on account of any defect in the title of us the executants or of any of us the whole or a part of the property sold aforesaid passes out of the possession of the vendee. We the executants shall be liable to pay to the vendees the consideration thereof together with costs and interests, etc.
8. Some argument was made that actual possession had not passed to the vendees and therefore this was not a case of land passing out of their possession. We note that the sale deed states,
we have put the vendees in possession and occupation of the said land, etc. sold. Now they have become the absolute owners of the land, etc. sold;
apparently the argument is that the vendees never got actual possession of this shankalap bind. We consider that this is a Ivory narrow method of interpretation of the clause in the sale deed and in Mul Kunwar v. Chattar Singh (1908) 30 All. 402 a ruling of a Bench of this Court held that a precisely similar clause would apply where the purchaser failed to get possession of the part of the property sold and that the purchaser would be therefore entitled to damages. We may also point out that the T.P. Act, Section 55(2) states that in absence of a contract to the contrary,
the sailor shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same.
9. This contract is by law an implied term in the present contract and under this implied term it is clear that there was a liability on the vendors for title and power to transfer. Now vendors did not have title to the shankalap area, nor had they power Ito transfer it. As the sale-deed represented that they did transfer the whole area of 400 bighas 4 biswas and had power to do so, there is clearly a breach of the implied covenant also. Such a breach will cover a case where possession has not been obtained of the area in question. We consider therefore that the lower Appellate Court was perfectly correct in holding that the plaintiffs had a good claim in regard to the damages granted.
10. The next argument made was on the point of limitation. The plaint alleged in para. 6 that it was on the next day after registration that the application for mutation of names was made by the defendants in favour of the persons who had the shankalap grant. That date would be 25th July 1924. The suit was actually brought more than three years later on 6th August 1927. The contention of learned Counsel for the appellants was that Article 62 or Article 97, Limitation Act, would apply for which the period is three years from the cause of action and therefore that the suit would be time-barred. The lower Appellate Court has applied Article 116 which provides a period of six years 'for compensation for the breach of a contract in writing registered' and the cause of action arises when the contract is broken, etc. If the case-comes under Article 116, the suit is within limitation. Much of the argument of learned Counsel for the appellants consisted of showing rulings in which Article 97 had been applied and in which Article 116 was not applied. In most of these rulings no reference is made to Article 116 and it is possible that learned Counsel in these rulings did not put that Article forward. The question for us to consider is whether Article 116 applies or not and the fact that Article 97 might apply if regard was not had to the contract in writing registered is really beside the mark. In certain rulings Article 116 could not have been applied because the contract in question was not a binding contract either because it required confirmation and confirmation was not given as in Lachman Kachhi v. Secretary of State : AIR1934All547 or because the contract had been set aside by the Court as in Hans Ram Singh v. Kishori Lal : AIR1937All689 . In our opinion it is necessary for the application of Article 116 that there should be an existing and valid contract in writing registered, and rulings where such a contract does not exist have no bearing. We desire to refer to the following rulings of the Allahabad High Court:
Mul Kunwar v. Chattar Singh (1908) 30 All. 402. In this case there was a registered sale-deed of immovable property containing a covenant to the effect that in the event of a claim being advanced by a co-sharer or in the event of the purchaser losing any part of the property in any other way, he would be entitled to a refund of the consideration and to damages. The purchaser, failing to get possession of part of the property purchased, sued for possession, or in the alternative for a refund of a proportionate part of the consideration money and damages. Held that as regards the latter relief, the suit was governed by Article 116 and not by Article 97, Limitation Act. This ruling was followed as set out on p. 405 by a ruling, not separately reported, by another Bench of this High Court, Ram Jaggi Rai v. Kauleshar Rai First Appeal No. 38 of 1908. In Janak Singh v. Walidad Khan (1915) 2 A.I.R. All. 339 there was a sale-deed in 1905 and mutation was effected in 1906 and in 1907 there was a decree that the sale deed should he set aside. This suit was brought by a third party. In 1911 a suit was brought for recovery of the money against the vendor. On page 671 it is set out that the respondents vendees contended that the deed of sale contained contract on the part of the vendor to put the purchasers in possession, but the sale-deed contained no such contract. There was a clause for recovery of the price in case the possession of the vendees was disturbed or they were dispossessed. But the Court hold that this did not apply because the purchaser never got possession and that mutation was not sufficient to show that they got possession, although they had obtained a decree for profits. Under these circumstances the Court held that as there was no contract which was broken, there was no application of Article 116. It is to be noted that it did not occur to the Court to apply the provisions of the T.P. Act, Section 55(2). In view of the peculiar findings of fact in this ruling, we do not think that it has any application to the present circumstanced where the Court below has held that there is a definite breach of a contract, in the ruling, on the other hand, the Court hold that there was no breach of a contract in writing registered. In Kundan Lal v. Bisheshar Dayal : AIR1927All734 there was a case where the purchaser of immovable property failed to obtain possession from the vendor and he brought a suit for return of the purchase money. The Court held that the suit was governed either by Article 97 or by Article 62, Limitation Act. The Court stated that the decision in Mul Kunwar v. Chattar Singh (1908) 30 All. 402 could be distinguished from the present case, but did not state how it was to be distinguished. The Court followed Janak Singh v. Walidad Khan (1915) 2 A.I.R. All. 339 but failed to note that in that case the Court had proceeded on the ground that there was no breach of a contract in writing registered. After this ruling there was a ruling in Hanwant Rai v. Chandi Prasad : AIR1929All293 in which this ruling was not followed and the earlier rulings were followed. In that case there was a sale deed of zamindari with a contract to indemnify the vendees if by reason of any member of his family any defect arose in the property. There was also pre-emption. Subsequently the sons of the vendor got a decree for cancellation of the sale deed. The vendees sued for compensation. It was held that the vendees, if they could not succeed on the express covenant, were entitled to succeed on the implied covenant under Section 55(2), T.P. Act, and that Article 116, Limitation Act, applied and that the suit was within time and that the word 'contract' in Article 116, Limitation Act, should include an implied contract. In Muhammad Siddiq v. Muhammad Nah : AIR1930All771 there was a sale deed and subsequently the vendee was dispossessed by a person with superior title and the vendee sued to recover damages for breach of the implied covenant under Section 55(2), T.P. Act. It was held that Article 116, Limitation Act, was the proper Article to apply and not Article 97 and that Article 97 would cover a suit for recovery of the money for which the consideration failed; but that where there was a registered document, then the proper Article to apply was Article 116. In Jawahar Ram v. Jhinguri Lal : AIR1935All786 the plaintiffs bought zamindari share from the defendants and the sons of the defendants sued to have the sale set aside on the ground of want of legal necessity and obtained a decree to that effect. The plaintiffs then sued the vendors defendants for the refund of the price and damages, It was held that Article 116, Limitation Act, would apply.
11. In view of the preponderating authority for this view in. this High Court, we do not consider it necessary to discuss various isolator rulings of the other High Courts which have been produced. For these reasons we find that the decree of the lower Appellate Court is correct and we dismiss this second appeal with costs.