1. This is a defendants' appeal arising out of a suit for specific performance. Under a registered agreement dated the 18th May, 192l, the defendant accepted earnest money and undertook to sell certain immoveable property to the plaintiff. A sale deed was executed and was presented for registration by the vendee but the defendant did not turn up on the day when it was to be registered. An application was afterwards made to the Sub-Registrar for the registration of the sale deed, but that was refused as the defendant did not again appear. An appeal to the District Registrar was also dismissed because the defendant did not appear to admit the document and the document was proved. The plaintiff then brought a suit under Section 77 of the Indian Registration Act for the compulsory registration of that particular document. The case was fought out and the. finding was in favour of the plaintiff. The decree however was in the form directing the defendant to get the sale deed registered within thirty days. If the correct form had bean adopted the learned Munsif should have allowed the plaintiff to take is to the Registration Office for registration. The defendant, however, appealed to the District Judge, but after the period of thirty days expired he withdrew his appeal on the ground that the decree had become a nullity as the Bale deed was not produced for registration within thirty days. As a matter of fact he himself had made, default as the Munsifs decree had directed him to get h registered. The plaintiff had made an application to the Munsif within the thirty days for the return of the document in order that he might present it for registration. This application was dismissed as the decree of the Munsif did not direst him to get the document registered. An infructuous appeal was filed to the District Registrar but it also failed. In the result the plaintiff did not obtain the relief which he might have got under Section 77 of the Registration Act. He then instituted the present suit for the specific performance of the original contract. Various defences were raised but all the issues were found against the defendant and the suit was decreed by both the Courts below.
2. It is contended before us that the only remedy which the plaintiff had was the one allowed to him under Section 77 of the Indian Registration Act, and that that suit having failed, his remedy was exhausted and he no longer had any further cause of action against the defendant, In support of this contention reliance is placed on certain Madras cases among which Satyanarayana v. China Venkatarao 100 Ind. Cas. 385 : 49 M. 302 : 23 L. W. 277 : A. I. R. 1926 Mad. 530 : 50 M. L. J. 674, may be mentioned. This case dissents from the view taken in this High Court in the case of Amar Chand v. Nathu 7 Ind. Cas. 408 : 7 A. L. J. 887. The view of this High Court has been followed by the Calcutta High Court as well as by the Patna High Court. 44 Ind. Cas. 301 Nasirud-Din Midda v. Sidhoo Mia 44 Ind. Cas. 361 : 27 C. L. J. 538 and Uma Jha v. Chetu Mandar 95 Ind. Cas. 187 : A. I. R. 1926 Pat. 19: (1926) Pat. 89 : L.T. 730.
3. It seems to us that the original contract substantially was for the sale of the immoveable property by the defendant to the plaintiff and not for the mere signing of a particular document or of its presentation for registration. It cannot be said that the defendant has fulfilled his contract completely by merely signing the sale deed without getting it registered. The property admittedly is still in his possession and has not legally passed to the plaintiff. It is, therefore, impossible to hold that the contract entered into by the defendant has been fully carried out.
4. Section 77 of the Indian Registration Act permits a suit for a decree directing the document to be registered. That obviously refers to a relief for the registration of that particular document which had been executed and the registration of which was refused. Under that section no other relief can be claimed. This has been clearly held by this Court in Kanhaiya Lal v. Sirdar Singh 29 A. 284 : 4 A. L. J. 171 : A. W. N. (1907) 46 and Ham Ghulam v. Menda 60 Ind. Cas. 809 : 19 A. L. J. 384. It is, therefore, obvious that the mere failure of a suit under Section 77 or its infructuous termination cannot operate as res judicata in a suit brought for the specific performance of the original contract and for recovery of possession of the immoveable property. This suit is based on the original cause of action which was independent and separate from the cause of action arising from the refusal of the purchaser to register it. It is also quite clear that the remedy which the plaintiff claims in the present suit is for the specific performance of the contract by executing a new and fresh document and for recovery of actual possession. Such reliefs could not have been claimed, in the previous suit. We are unable to hold that Section 77 provides the only exclusive relief to the plaintiff, who has paid consideration and earnest-money to the defendant who has promised the transfer to him of the immoveable property. There is absolutely no reason why he should not be able to enforce the contract specifically and obtain actual possession.
5. The only point that remains for consideration is whether there has been any thing in the conduct of the plaintiff which would disqualify him from obtaining the equitable relief of specific performance. No doubt such a relief is discretionary, but the ordinary presumption is that a contract for the transfer of immoveable property can not be compensated for by damages. The finding of the lower Appellate Court makes it quite clear that it was the defendant himself who was to blame throughout. On two occasions ho did not appear before the Sub-Registrar and he did not turn up before the District Registrar. He also frivolously resisted the plaintiff's suit under Section 77 and then although the decree was against him he did not obey that decree. The plaintiff has been knocked about from Court to Court but it cannot be said that he was in any way negligent. The Munsif had passed a decree in his favour and against the defendant, and although the form of it was not proper the plaintiff submitted to it hoping that defendant would be bound by it. In view of all the circumstances we agree with the view taken by the Court below.
6. We accordingly uphold the decree of the Court below and dismiss the appeal with costs.