1. This is a case where both the courts below after having referred to Section 119 of the Transfer of Property Act, failed to correctly digest the scope and effect of the said salient and salutary provision in tackling the problem the present proceeding posed and consequently made an erroneous approach. Nonetheless the trail court reached the right conclusion, while the lower appellate court reversed it.
2. The parties are divided brothers. The appellant before me resisted the suit O.S. No. 6 if 1972, on the file of the district Munsif Court, Villupuram, brought by the respondent for declaration of the respondent's title to the suit property and for permanent injunction or in the alternative for recovery of possession on the ground that the appellant lost not only title but also possession to the property which he got under the deed of exchange, dated 4-6-2967, marked as Ex. A-1, in exchange of his property to the respondent and that consequently, the respondent is not entitled to clam possession of the suit property. The trial court accepted the defence put forward by the appellant therein and dismissed the suit. The lower appellate court held that though the defendant could be credited with ethical considerations, in law his right as secured under Section 119 of the T.P. Act (hereinafter referred to as the Act) is not to take the law to his own hands and to trespass into the suit property, but, to enforce his right for recovery of possession of the suit property which admittedly was conveyed by him to the respondent before me in exchange of the respondent's property. I have already referred to that the appellant before me last possession of the property which he got from the respondent in exchange of his property (suit property) under the deed of exchange Ex. A-1.
3. It is, therefore, relevant to extract Section 119 of the Act--
"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."
In the instant case, admittedly, the appellant was deprived of the property which he got in exchange under Ex. A-1 by reason of the respondent's defect in the title. Further no contrary intention appeared from the terms of the exchange or pleaded by the party as visualised under Section 119 of the Act. Therefore, it follows that the respondent is liable to the appellant or any one claiming through or under him for loss caused thereby or at the option of the person so deprived the appellant herein for the return of the thing transferred if still in the possession of the respondent. Admittedly, the property that the appellant conveyed under Ex. A-1 in exchange of the respondent's property, is still in his possession; that is evident from the fact that the present suit is for declaration and injunction or in the alternative for possession. Therefore, on the plain reading of Section 119 of the Act, the appellant is entitled to recover the suit property from the respondent. As a matter of fact, learned counsel for the respondent does not dispute the appellant's said right secured under Section 119 of the Act, but then according to the said learned counsel the appellants had no defence to the present action in so far as under the exchange deed Ex. A-1. valid title had passed on to the respondent in respect of the suit property and that he is bound to deliver possession and thereafter to sue for recovery of possession of the very same property. To put it differently, in the face of Ex. A-1, the appellant cannot resist the respondent's present action for possession. I am unable to accept such interpretation of Section 119 of the Act, as emphasised by the learned Counsel for the respondent on three valid grounds:--
First of all, under Section 119 of the Act, the appellant who had lost possession of the property which he got from the respondent in exchange of his property has an unfettered right to claim damages or the return of the property transferred by him so long as such property is still in the possession of the other party to the exchange deed, viz., the respondent. The right to get the return of the thing transferred will certainly take into its fold the right to retain the same if such property were to continue in the possession of a person like the plaintiff. While the right to recover possession is a genus, the other right to retain the same is a specie. I am of the view that the right to claim the thing transferred as a larger right which will certainly embrace the right to continue to be in possession; in that event, it follows he has right to resist such possession. It is, therefore, obvious that the appellant is entitled to resist the present action for possession commenced by the respondent on the strength of the exchange deed Ex. A-1. The other construction of Section 119 as urged by the learned counsel for the respondent will only produce an incongruous and ignominious result. In my above interpretation of Section 119, do blossom not only natural justice but also fair play.
The second factor which persuades me to reject the respondent's contention that the appellant should suffer a decree in this suit and thereafter to initiate a fresh proceeding, is based on the principles of equity and good conscience. It is relevant to note that in the suit O.S. No. 450 of 1971, instituted by the appellant before me as against the respondent herein for declaration of his title to the property he got from the respondent under Ex. A-1 and for possession, the respondent before me (the defendant therein) denied that the exchange deed marked as Ex. A-1, in the present proceeding was acted upon and that the appellant before me had not taken possession of the property in pursuance of the exchange deed. It is also necessary to point out at this stage that though the appellant before me obtained a decree in O.S. No. 450 of 1971, the same was nullified by virtue of the decree obtained by Narayanasami Gounder in O.S. No. 452 of 1971 laid as against the appellant before me. As a matter of fact, it was in that suit O.S. No. 452 of 1971 the appellant before me lost possession of the property which he got by way of exchange under Ex. A-1. Therefore, there can be no dispute, and as a matter of fact, even the respondent concedes, that the appellant had lost possession of the property which he got from the respondent in exchange of his property to the respondent under Ex. A-1. It is thus evident that the respondent's conduct in regard to the subject matter of litigation suffers from grave impropriety. It is further obvious that the respondent had not come with clean hands. It is no gain-saying that the court should not encourage a wrongdoer to secure its assistance to get back the thing which he had obtained on his own wrong. Even on this ground, the plaintiff is not entitled to sustain his claim.
The last consideration which prevailed upon me to reject the respondent's claim is that the court should not be a party to protraction of proceeding in respect of the very same subject matter. As already pointed out by me, the appellant's right to get back possession of the said property in this proceeding is not disputed. While so, no real gain or advantage will the respondent achieve if the appellant were to suffer a decree in this proceeding and thereafter to levy another suit for recovery of the very same subject matter on the strength of the right guaranteed to him under Section 119 of the Act. It will only expose both the parties to prolonged agony and endless expenditure.
4. However, learned counsel for the respondent in support of his contention, relied upon the decision reported in Ramnarain v. Ramdas, AIR 1929 All 65. That was a case where the court was concerned with the questions whether an exchange of property will become inoperative only because of a defect in the title of a party to it and whether the remedy of a party to the exchange deed is to claim specific performance or to sue for possession. Therefore, I find that the above decision does not in any way help the respondent.
5. In the view I have taken, it is necessary for me to refer to, or consider, the ruling reported in Ramanna v. Veeraju , and the other reported in Seetaramaswamy v. Narasingha Panda , as they do not throw any light on the question
involved in this second appeal.
6. It is also contended by the learned counsel for the respondent that after commencement of this suit, the appellant managed to get into possession of the suit property, that he is guilty of trespass and that therefore his remedy is to sue for possession in a separate suit. In this supeculier circumstances of the case, I am inclined to take cognizance of such event that took place after suit especially when it serves the ends of justice, Consequently, I do not propose to call for any finding in this behalf though the lower appellate court had not discussed in detail about the same while the trial court did find in the appellant's favour.
7. The result is the second appeal succeeds and is allowed with costs. Consequently the judgment and decree of the learned district judge, South Arcot at Cuddalore, in As. No. 279 of 1973 are set aside and those of the Additional District Munsif, Villupuram, made in O.S. No. 6 of 1972, restored.
8. Appeal allowed.