C.B. Bhargava, J.
1. This is a second appeal by the plaintiffs in a suit for recovery of Rs. 3500/- along with interest paid by them on 29th May, 1954 to the respondent towards part payment of the sale price of 106 Bighas and 10 Biswas of land situated in village Ghori for which a contract to sell was entered into between them on that elate. The land was to be sold for a sum of Rs. 8500/-Balance of Rs. 5000/- was to he paid on Phagun Sudi 15 Smt. 2011 corresponding to 8th March, 1955 when the sale deed was to be executed and mutation to be effected in the plaintiffs' favour. Two documents were executed regarding the agreement of sale -- one by the defendant in favour of the plaintiffs marked Ex. 1 and the other by the plaintiffs in favour of the defendant marked Ex. A1.
2. Plaintiffs' case was that they were ready and willing to perform their part of the contract and had approached the defendant a few days before Phagun Sudi 15 as also on the same day and had offered to pay Rs. 5000/-, balance of the sale money and asked the defendant to execute the sale deed in their favour and to deliver vacant possession of the land but the latter declined to do so. The plaintiffs, therefore, claimed a refund of Rs. 3500/-along with interest from the defendant.
3. The defendant though admitted the agreement of sale as also the receipt of Rs. 3500/- yet stated that there was no agreement to deliver vacant possession of the land to the plaintiffs and since the plaintiffs were insisting on getting vacant possession, the sale deed was not executed. It was stated that Rs. 3500/- were paid as earnest money which were forfeited by the defendant on account of the plaintiffs' breach of contract.
4. Both the courts below have come to the conclusion that there was no contract between the parties to deliver vacant possession of the land and as such breach of contract was committed by the plaintiffs who did not pay the balance of sale price and get the sale deed executed in their favour. They have further held that Rs. 3503/-were paid by the plaintiff as earnest money which were liable to be forfeited on account of the breach of contract committed by the plaintiffs.
5. Plaintiffs have now come to this Court in second appeal. The terms of the agreement are reproduced in the judgment of the first appellate Court and it is clear that it does not contain any provision for delivery of possession over the land which was agreed to be sold. The courts below have also found on evidence that there was no oral agreement between the parties as alleged by the plaintiffs that vacant possession would be delivered to them at the time of sale. Assuming that it is so the question is whether under the law the plaintiffs were not entitled to demand vacant possession of the land from the defendant.
Under Section 55(1)(f) of the Transfer of Property Act,
'in the absence of a contract to the contrary, the seller is bound to give on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits.'
It follows that a seller of immovable property is under a statutory obligation to deliver possession of the property as its nature admits. Therefore, even if the plaintiffs failed to prove the special contract alleged by them they were still entitled under the law to claim possession from the defendant of the property in the absence of a contract to the contrary. The defendant did not plead that there was any contract to the contrary according to which he was not bound to give vacant possession of the property to the plaintiffs. It was also not pleaded that the land was in possession of the tenants and therefore it was not possible for him to give vacant possession of the land to the plaintiffs. Provisions of section 55(1)(f) of the Transfer of Property Act were not at all adverted to by the courts below. Vacant possession can be delivered over agricultural lands admits of no doubt.
In J. I. J. Hyam v. M. E. Gubbay, AIR 1916 Cal 1 (73) it was held that:
'A purchaser of tend is not bound to take it subject to leases, but is entitled to vacant possession unless there is an agreement to the contrary.'
In S. Panchapagesa Ayyar v. M. Arunachala Mudaliar, 1932 Mad WN 122, it was held that:
'Under Section 55(f), T. P. Act, if the property is a house, the possession that its nature permits is vacant possession: and in the absence of some proviso to the contrary in the agreement, the transfer of vacant possession is intended. It is not enough to prove such a proviso, that a tenant was actually in occupation to the knowledge of the purchaser.
If the purchaser knows and can prove that he will not get immediate possession and if, under his contract, he is entitled to such immediate possession, he may, under Section 39 of the Contract Act, put an end to the contract even before he has completed the purchase by paying full consideration.'
In Sashi Bhusan v. Rai Chand, AIR 1950 Cal 333, it was field that:
'Ordinarily, in tha absence of a contract to the contrary, if the agreement is to sell a house in which the seller has the sole and absolute interest, the possession that its nature permits delivery of, is vacant possession. The presence of tenants or trespassers in the house cannot affect the nature of the property inasmuch as the words 'its nature' in Section 55(1)(f) mean an incident which is inherent in the property which can be called as its nature.' In Vuddandam v. Venkatakameswara Rao, AIR 1951 Mad 470, it was held that:
'When the vendor is not in a position to give possession of the property agreed to be sold by him to the purchaser the purchaser will be entitled by virtue of Section 55, Sub-clause 1(f), T. P. Act and Section 39 Contract Act, to rescind the contract and claim the advance that has been paid to him.'
The above decisions clearly show that even though the plaintiffs had failed to prove that there was an agreement to deliver vacant possession of the property, in the absence of a contract to the contrary they were entitled to rely upon the provisions of Section 55(1)(f) of the Act and demand vacant possession from the defendant.
6. Learned counsel for the respondent urges that the and agreed to be sold was in possession of the tenants and therefore, its nature did not admit of vacant possession and any symbolical possession could be given to the plaintiffs. Learned counsel has drawn my attention to the statements of Motilal (P. W. 5) and Anandilal (P. W. 8). Motilal has admitted that on the date he called upon the defendant to execute a sale deed and deliver possession of property, crop was standing on the land and it was in the occupation of Jailis. Anandilal (P. W. 8) has admitted that the land was not in possession of the defendant but was in the cultivation of Masoomali and Razaak.
He has also referred to Suliman Ahmad v. Palaniappa Chetty, 8 Ind Cas 605 (Rang), where it was observed that 'a mortgagee of land with an inhabited house thereon sold the property in virtue of his power of sale. The purchaser after paying a certain sum as earnest money refused to pay the balance of the purchase money and claimed tack what he had paid Because the tenants of the house refused to recognise either party as their landlord and to pay rent. Under the circumstances the purchaser contended that the vendor could not give him effective possession of the property.'
It was held that 'the vendor could give effective possession of the property'. It was further observed that 'the term 'possession' is open to a great variety of meanings, and the giving of such possession as the nature of the property admits may be satisfied by the mere handing over of the title deeds when the property is in the occupation of tenants.' In this case the learned Judges were doubtful whether the provisions of Section 55 of the Transfer of Property Act applied at all and as such this case is of not much help to the respondent. In the present case even if it be admitted on the above evidence that the land was actually in possession of Jailies, there is no proof on record of the terms and conditions of their possession.
it is significant that agreement to sell was executed on 29th May, 1954 and the sale deed was to be executed on 28th March 1955 and it appears that the parties intended to execute the sale deed after the crops had been harvested. This can also be deduced from the defendant's own evidence who admits that when the plaintiffs called upon him to deliver possession, he was unable to do so as the crops were standing on the land. It was not the defendant's case nor is it his evidence that he had refused to deliver possession because the land was in possession of Jailies. There is also no evidence either that he was prepared to five symbolical possession of the land to the plaintiffs. In erstwhile Kotah State from where this case comes, under Circular No. 3 (Sigha Mal) vide Section 69 'Zaili' is defined as any person who is in cultivatory possession of the land of a Khatedar.
According to Section 70 'Zaili' did not acquire any rights specially those of the Khatedars. According to Section 74 unless there was evidence to the contrary, a 'Zaili' was deemed to be in occupation of the land only for one agricultural year. The agricultural year shall be deemed W be from Baisakh Sudi 4 to Akshev Teej. These provisions clearly show that even if the land was in occupation of Jailies there should be something further to show that they had a right to remain in occupation of the land after the crops had been harvested. Therefore, even if it be admitted that the land was in occupation of Jailies, the defendant has clearly failed to show that vacant possession could not be delivered to the plaintiffs. The courts below have not examined the nature of 'Jailies' possession over the land and have completely overlooked the provisions of Section 55(1)(f) of the Act.
7. Since the defendant had refused to deliver possession of the property agreed to be sold to the plaintiffs, the plaintiffs were entitled to rescind the contract,and claim refund of the sale money which they had paidto the defendant in advance. In my opinion this appealmust succeed on this ground alone. The plaintiffs havealso claimed interest on Rs. 3500/- at the rate of 12%p. a. from 29-5-54 but actually they had demanded thismoney from the defendant on 11-7-1955. They are, therefore, entitled to recover interest from that date only. Theamount of interest from 11th July, 1955 to the date ofthe suit comes to Rs. 17/- only.
8. The result therefore, is that this appeal is allowed, judgment and decree of the courts below is set aside and the plaintiffs' suit is decreed for Rs. 3517/-against the defendant. The plaintiffs will also get interest at the rate of 6% pendente lite and future till the date of realisation of the amount. In view of the fact that the plaintiffs made a wrong allegation of there being an agreement to deliver vacant possession which they could not substantiate, I leave the parties to bear their own costs throughout.
9. Learned counsel for the respondent prays for leave to appeal which is refused.