1. This is an appeal against the appellate judgment of R.N. Misra, J. in First Appeal No. 63 of 1964 confirming the judgment and decree passed by the Subordinate Judge, Jey-pore in a suit for recovery of possession of the plaint 'A' schedule properties, mesne profits and cancellation of the Deed of Exchange Ext. A dated 26-3-1957.
2. Plaintiffs 2 to 5 are sons of plaintiff No. 1. The plaintiffs constitute a joint family and are the owners in possession of the plaint A schedule lands measuring A.22.36 decs. situated in mouza Barijhola. Out of these Lands, they were in khas possession of plot Nos. 80, 87, 90 and 98 with an area of 6.11 acres. The remaining lands bearing plot Nos. 292. 29-3 and 294 were with the the Jeypore Sugar Company, Limited under possessory mortgage for a period of 12 years commencing from 11-5-1955. One Rajguru family who are not parties to this litigation own lands in village Pitamahal which was an inam village. That inam estate was abolished under the Orissa Estates Abolition Act, 1951 (Act I of 1952) on 1-4-1954. Some of the co-sharers of the Rajguru family under a registered sale deed Ext. 3 dated 4-4-1956 sold lands covered under various survey numbers to the defendant for Rs. 6000/-. Some of the plots which were included in the sale deed were under a possessory mortgagewith one Seetaramaswamy Kumandan of Rayagada, The plaint 'A' schedule lands were fit for sugar-cane cultivation and the defendant who was a sugar-cane grower was interested to take the 'A' schedule lands. He, therefore, prevailed upon plaintiff No. 1 who was the Karta of the joint family of the plaintiffs to exchange his plaint 'A' schedule lands with the plaint 'B' schedule lands which the defendant stated belonged to him as having been purchased from Rajguru family. The defendant told plaintiff No. 1 that out of the plaint 'B' schedule lands with an area of about 25 acres, 'C' schedule lands measuring about 20 acres were under possessory mortgage with Seetaramaswamy Kumandan of Rayagada and that the balance of about 5 acres described in Schedule 'D' were in khas possession of defendant himself. It was represented to plaintiff No. 1 by the defendant that as the 'B' schedule lands were paddy yielding lands they would be more useful to the plaintiffs than the 'A' Schedule lands which were fit for sugar-carte cultivation and as such would be more useful to the defendant. The further arrangement between the parties was that plaintiff No. 1 would redeem the 16 acres and odd of lands mortgaged by him with the Jeypore Sugar Company in 1967 and deliver possession thereof to the defendant and that the defendant would redeem the mortgage of the 'C' schedule lands from Seetaramaswamy and deliver possession of the same to the plaintiff by 2-7-1959. Plaintiff No. 1 believed in the various representations made to him by the defendant and the Deed of Exchange Ext. A was executed and registered on 28-3-1957. The plaintiffs' 'A' schedule lands were valued at Rs. 7,500/- and the defendant's 'B' schedule lands were valued at Rs. 6760.00. A show of payment of Rs. 740/- to the plaintiff No. 1 was made before the Sub-Registrar representing the difference between the price, but in reality, the defendant executed a promissory note for Rs. 976/- in favour of plaintiff No. 1 to cover the difference in price plus Rupees 236/- which he borrowed from plaintiff No. 1, It was described in the Deed of Exchange that the parties would get absolute rights in the lands obtained by exchange and the title deeds which were referred to in the Deed of Exchange would be delivered to the plaintiffs. But no such documents were delivered. Although plaintiff No. 1 gave possession to the defendant of the 6.11 acres of land of which plaintiff No. 1 was in khas possession, the defendant did not deliver to the plaintiff No 1 possession of the 'D' schedule lands which he represented to be in his khas possession. On the other hand, the defendant prevailedupon the plaintiffs to lease out the 'D' schedule lands to him for three years from 1957 to 1959 and accordingly the lands were leased out to the defendant under the registered lease deed Ext. 3 dated 28-3-1957. Thr defendant failed to redeem the 'C' schedule lands which were under mortgage with Kumandan. The defendant did not also pay to the plaintiffs the rent stipulated under the lease deed Ext. 3 and when after the expiry of the period fixed in the lease deed, plaintiff No. 1 went to take khas possession of the 'C' schedule property, he was resisted by Bidika Jagli and others who claimed tenants' rights therein. On 28-7-1960, plaintiff Wo. 1 called upon the defendant to cancel the deed of exchange. On 22-9-19,60 the defendant replied asserting that the Deed of Exchange was valid and called upon the plaintiffs to join him as co-plaintiffs in a suit for redemption against Kumandan. The plaintiff No. 1 signified his consent but the defendant failed to take further steps for redeeming the mortgage. Thus the defendant enjoyed khas possession of 6.11 acres of land which the plaintiff No. 1 had delivered to him, but the plaintiffs did not get corresponding benefit. It is in these circumstances that the plaintiffs filed the suit giving rise to this appeal for cancellation of the Deed of Exchange on various grounds including want of title in the defendant in the plaint 'B' schedule lands and also claimed mesne profits in respect of the 6.11 acres of land for a period of 3 years at the rate of Rs. 300/- per year.
3. The defence was that plaintiff No. 1 was fully aware of all the aspects in respect of the 'B' schedule lands before the Deed of Exchange Ext. A was executed. He asserted that khas possession of the plaint 'D' schedule lands was given to the plaintiffs and it is only after receiving delivery of possession that plaintiff No. 1 had given the lands an lease to the defendant for three years. The defendant further stated that he wanted to file a redemption suit against Kumandan but plaintiff No. 1 did not join him as co-plaintiff and as such the suit could not be (filed, He denied the plaintiffs' allegation that the promissory note in question represented the difference of the price. It was suggested in the written statement that the plaintiffs wanted to back out from the transaction of exchange on account of the fact that their lands in Barijhola village which were given in exchange to the defendant had in the year 1960 received the advantage of lift irrigation facilities. The learned Subordinate Judge who tried the suit held that the Deed of Exchange was vitiated by fraud and misrepresentationand was not valid and binding on the plaintiffs. He found that the defendant's vendors had no full title to the properties conveyed to the defendant under the sale deed Ext. 13 dated 4-4-1956 and that the defendant had no title to the lands in Schedule C mortgaged to Kumandan. In respect of the other lands, namely, plaint Schedule 'D' lands, the defendant had at no time delivered possession thereof to the plaintiffs. In the circumstances, the Deed of Exchange turned out to be void and liable to be cancelled. So far as the claim of mesne profits is concerned, the Court held that the claim of Rs. 300/-per year is not at all excessive. In the result, he passed a decree cancelling the Deed of Exchange and directing the defendant to deliver possession of the A schedule lands to the plaintiffs and to further pay a sum of Rs. 900/- towards mesne profits.
4. Aggrieved by this decision, the defendant filed an appeal in this Court. He also filed an application under Order 41, Rule 27 of the Civil Procedure Code for receiving additional evidence. That application was allowed under circumstances which need not be referred to at length in view of the fact that the order admitting additional evidence is not assailed before us. In para 2 of the written statement, the defendant stated that Prahallad Rajguru and Shyama Sundar Rajguru were the full owners of the plaint 'B' schedule lands which they sold to the defendant under the sale deed Ext. 13 dated 4-4-1956 (wrongly stated as 29-3-56). Some of these lands were originally mortgaged with Seetaramaswamy Kumandan. It was asserted that the lands which the Rajgurus had mortgaged with Kumandan were under the latter's possession and he was cultivating the same personally. It appears that the learned Subordinate Judge found that there was no partition by metes and bounds of the family lands amongst the members of the Ra.iguru family. It was only for convenience of enjoyment that the different members of the family were in possession of different parcels of lands. He, therefore, held that the defendant's vendors had no exclusive title to the 'B' schedule lands and that consequently the defendant did not acquire any title to the same under the sale deed dated 4-4-1956. By the time the present suit came up for trial a partition suit filed by some of the members of the Rajguru family was pending in the Court of the Subordinate Judge, Berhampur. It has since been disposed of. A certified copy of the final decree passed in the partition suit was filed as additional evidence in the first appeal and with reference to the allotments made therein, Misra, J. came tothe conclusion that the plaint 'B' schedule lands had actually been allotted to the shares of the defendant's vendors in the partition suit. He, therefore, held that it cannot any more be said that defendant had no title to the plaint 'B' schedule lands.
5. It, however, appears from Ext. H that the lands which the defendant had purchased from, the Rajgurus were comprised in an inam estate which has since been abolished, and after the defendant purchased the lands from the Rajgurus, he made an application to the Tahasildar and obtained the lands on lease, but that they were not settled either with the defendant's vendors or with the defendant under the provisions of Ss. 7 and 8A of the Orissa Estates Abolition Act. The learned single Judge, therefore, held that the title of the defendant to the 'B' schedule lands did not enjoy the immunity provided by Section 39 of the Orissa Estates Abolition Act and is still open to be questioned; and at any rate it is a case of doubtful title.
6. The learned single Judge after an elaborate discussion of the evidence recorded the following findings:
(1) The plaintiffs delivered the 6.11 acres of land out of the plaint 'A' schedule lands to the defendant. But the defendant never delivered possession of the 5 acres of 'D' schedule lands to the plaintiffs. Availability of the Land for khas cultivation was the real basis end an important consideration for entering into the transaction of exchange. This has vitiated the transaction evidenced .bv the Deed of Exchange Ext. A.
(2) Although the defendant had undertaken in the Deed of Exchange to redeem the possessory mortgage given in respect of the 'C' schedule lands by 2-7-1959 and thereafter deliver possession of the same to the plaintiffs, he failed to redeem the same from Kumandan and satisfy the warrantee and undertaking given under Ext. A to put the plaintiffs in khas possession of the mortgaged properties by 1959.
(3) The defendants had suppressed material facts relating to the transaction and by false representations induced the plaintiff No. 1 to enter into the transaction of exchange.
(4) The amount of mesne profits decreed is fair and reasonable. In view of these findings, the learned Judge held in agreement with the trial Court that the plaintiffs are entitled to get the Deed of Exchange cancelled and to recover possession of the plaint 'A' schedule lands and also to recover the mesne profits decreed bv the trial Court from the defendant.
7. It is now well established that a Letters Patent Appeal from the judgment of a single Judge in First Appeal to the High Court is not exactly equivalent to a second appeal under Section 300, Civil Procedure Code and that it is open to the High Court to review even findings of fact recorded by the learned single Judge although generally speaking Letters Patent Bench would be slow to disturb concurrent findings of fact of the two Courts below (See Alapati Kasi Viswanatham v. A. Sivarama Krishnava (Civil Appeal No. 232 of 1961 disposed of on 11-1-1963 (SC)), and Jagabandhu Senapati, ILR (19'73) Cut 553 = (AIR 1974 Orissa 120).
8. In view of this legal position. Mr. Y.S.N. Murty, learned counsel for the appellant has assailed before us the findings recorded by the learned Single Judge that possession of the plaint 'D' schedule lands had never been given by the defendant to the plaintiffs and that the defendant wantonly failed to take any steps to redeem the possessory mortgage relating to the 'C' schedule lands.
9. We will first take up the case relating to the 'D' schedule lands. The defendant's case is that he was in khas possession of these lands. Under the Deed of Exchange, he was to deliver possession of these lands to the plaintiffs. His case is that he actually gave possession of these lands to the plaintiffs and that thereafter the plaintiff leased out the lands to him for three years under the registered lease deed Ext. 3. According to him, the plaintiff got back possession of these lands after the expiry of the period of lease. In support of the case on this point, he referred to the averment made in para. 5 of the plaint which runs thus;
'In the year 1961 the plaintiff No. 1 attempted to cultivate the land which the defendant claimed to be in his khas possession. He raised paddy crops thereon which may yield about three 'garisas'. He could then discover the fraud practised by the defendant in executing the exchange deed.
* * * * * The lands which the plaintiff cultivated were claimed by Bidika Jagili, Mohanan-dia Paiko, Bidika Nariga, Bidika Jogulu, Poloka Sonalu, Bidika Sovamoni, Bidika Sukru and Modan Paiko to be in their possession with tenancy rights and they took away a portion of the paddy crops.'
Relying on this averment, it is argued by Mr. Murty that after the expiry of the lease, the plaintiff No. 1 actually got possession of the land and cultivated it and if subsequently his possession was disturbed by some persons claiming tenancyrights therein, the defendant would not be responsible for it. The plaintiff No. 1 also filed a criminal case against the tenants alleging that they had carried away paddy which the plaintiff had raised on the land. While deposing in the criminal Court, the plaintiff appears to have said that he was in possession of the land. These circumstances are also relied upon by Mr. Murty to show that the plaintiff was actually in possession of the land. The learned single Judge had adverted to all the circumstances and stated that in order to secure possession and keep the lands in his enjoyment, plaintiff No. 1 was bound to say so in criminal cases. In fact two of those tenants P. Ws. 2 and 3 have in this civil litigation appeared as witnesses for the plaintiffs and deposed that they and some others were cultivating the lands since last 14 to 15 years on taking lease of the lands from the Rajgurus. They categorically stated that the defendant was not in possession of these lands. The trial Judge and the learned single Judge have accepted the evidence of these two witnesses and we see no compelling reason to take a different view, especially when the other circumstances in this case lend some .assurance to their testimony. The defendant knew that there were tenants on the 'D' schedule lands and by the time this transaction took place, the Orissa Tenants Relief Act was in full force and it is well known that the tenants could not be evicted. The defendant obviously wanted to keep the plaintiff in the dark and therefore took resort to subterfuge of taking the land on lease for three years. For good and sufficient reasons borne out by evidence on record the trial and first appellate Courts have arrived at the conclusion that at the time Ext. A came to be executed, the 'D' schedule lands were in possession of the tenants and not in khas possession of defendant and that the latter wantonly misrepresented to the plaintiff that he (deft.) was in khas possession thereof and that the plaintiff in his turn never got possession of the 'D' schedule lands. We accept these findings.
10. Regarding the 'C' schedule lands, the admitted position is that the defendant did not redeem the mortgage. The only question for consideration is whether the plaintiff was in any way responsible for defendant's failure to do so. According to the defendant, his legal advisers told him that in view of the Deed of Exchange, it was necessary that the plaintiffs should join him as co-plaintiffs in the mortgage suit, but that in spite of his request the plaintiffs refused to do so. This is belied by the documentary evidence on record towhich elaborate reference has been made in the appellate judgment. Ext. E is a registered notice issued by the plaintiffs to defendant on 28-7-1960, repudiating the Deed of exchange and one of the grounds mentioned therein was the defendant's failure to redeem the mortgage from Kumandan. Before receipt of this notice, the defendant appears to have purchased necessary court fee stamps on 21-3-1960 to file the suit for redemption. But on 25-8-1960, the defendant's pleader at Rayagada wrote the letter Ext. LL to the defendant's senior Lawyer at Parbatipuram mentioning therein that the court-fee stamps had been purchased but that the defendant was not keen to enter into litigation and prolong the matter and sought advice of the senior lawyer as to how to redeem the lands without filing a suit for the purpose. As appears from Ext. FFF the defendant filed an application on 7-9-1960 before the Tahsildar, Rayagada, claiming refund of the value of the court-fee stamps. Refund was actually ordered on 12-9-1960. Thereafter on 22-9-1960, the defendant's senior Lawyer from Parbatipuram sent a reply to the plaintiffs' registered notice dated 28-7-1960 stating therein that the defendant was always anxious to file a suit for redemption but that he was not able to do so because the plaintiffs were not joining him in filing the suit. By this registered notice, the plaintiffs were called upon to join the defendant as co-plaintiffs in redemption suit. On 28-11-1960, the plaintiffs replied (Ext. 5) offering to join the defendant in the suit proposed to be filed against Seetharamaswami Kumandan for redemption of the mortgaged lands. But obviously no such suit was filed. In the face of these documents, it is idle to contend that the redemption suit could not be filed because of the refusal of the plaintiffs to join the defendant in filing the suit. It, therefore, follows that the defendant failed to redeem the mortgaged lands as undertaken in the Exchange Deed Ext. A.
11. The resultant position therefore is this: Under the Deed of Exchange, the plaintiffs transferred their 'A' schedule lands to the defendant, in exchange for the 'B' schedule lands on the understanding that the defendant has got full title to the 'B' schedule lands. In pursuance of this arrangement, the plaintiffs gave to the defendant khas possession of 6.11 acres of land out of the plaint 'A' schedule of which they were in possession. Although the defendant stated that out of the 'B' schedule lands he was in khas possession of the lands mentioned in the plaint 'D' schedule, he did not deliver possession of the same tothe plaintiffs and it now transpires that the defendant was not in khas possession of the same, but that the 'D' schedule lands were in possession of tenants who cannot be evicted in view of the Orissa Tenants Relief Act. Regarding the balance of the lands of plaint 'B' schedule, the defendant failed to redeem the mortgage in respect thereof. The question is what is the relief to which the plaintiffs are entitled in the circumstances stated above. Section 119 of the Transfer of Property Act runs thus:
'If any party to an exchange or any person claiming through or under such party is by reason of any defect in the title of the other party deprived of the thing or any part of the thing received by him in exchange, then, unless a contrary intention appears from the terms of the exchange, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person so deprived, for the return of the thing transferred, if still in the possession of such other party or his legal representative or a transferee from him without consideration.'
Although the section, in terms, contemplates a case of one of the parties to the exchange being, by reason of any defect in title of other party, deprived of the thing received by him. in exchange, the principle underlying the section should also apply to the case where instead of a subsequent deprivation of the property transferred, there is no transfer at all. It would impliedly follow from Section 119 that when a party to an exchange has failed to obtain possession of the property which he was entitled to receive in exchange, then also he is entitled at his option for the return of the property transferred by him, if this property is still in possession of the other party or his legal representative or a transferee from him without consideration. It is not the case of the defendant that the property which he obtained in exchange under the Exchange Deed Ext. A from the plaintiffs is no more in his possession. The trial court was, therefore, right in giving a decree to the plaintiffs for obtaining back the property transferred by him under the Deed of Exchange Ext, A.
12. The finding of the Courts below that the plaintiffs are entitled to claim mesne profits at the rate of Rupees 300/- per year for the three years in the suit is not assailed before us.
13. In the result, this appeal fails. We would accordingly uphold the judgment and decree passed by the learned single Judge and dismiss this appeal.
The parties should bear their own costs in this Court.
14. I agree.