Richard Garth, C.J.
1. We think that the lower Appellate Court has taken an erroneous view of this matter.
2. The plaintiff's case is, that the defendant No. 1 granted to him a maurasi patta of the land in question, professedly for himself and the other defendants, Nos. 2 to 7, who are co-proprietors with him; and it appears that the plaintiff entered upon the land and paid rent under this patta.
3. But then the defendants Nos. 2 to 7, instead of confirming the contract that had been made for them by the defendant No. 1, repudiated it, as having been made without their authority; and in consequence the plaintiff was ejected. He therefore brings this suit against all the defendants for the purpose of having the contract, which the defendant No. 1 made professedly for himself and his co-defendants, enforced against them all; or, as an alternative, he claims to have the Rs. 250, which he paid by way of premium for the maurasi patta, restored to him.
4. Both the lower Courts have found that the plaintiff is not entitled to have his maurasi patta confirmed, because the defendant No. 1 had no authority to grant it; and with that part of the decree of the lower Courts we have no power to interfere.
5. But then in the Courts below the plaintiff pressed his alternative claim for the Rs. 250 under Section 19 of the Specific Belief Act, and both Courts have found that a case of this kind does not come within that section.
6. The lower Courts do not consider that the suit is one to enforce a contract; and they say that the plaintiff has no right to sue for alternative claims,--one to establish his right to the land, and the other for a refund of the Rs. 250.
7. Looking only at the form of the plaint, there is much reason in that view. But looking to the substance of the claim, we think that this may well be considered as a suit to enforce a contract (the patta), to place the plaintiff in possession of the land under that patta, and to declare his right to it as against all the defendants (see Section 4 of the Specific Relief Act); and if this is so, then under Section 19 the plaintiff had a right to ask, as an alternative claim, for compensation against the defendant No. 1 for his breach of contract, such compensation being measured by the Rs. 250 which he paid by way of premium, less the very small sum which would represent the short time during which the plaintiff was in possession of the property. This is certainly the substance and justice of the case; and we think that the lower Courts should have viewed it in that way.
8. Then the only question is, whether we have any right to dispose of the matter here, or whether we ought not to send the case back to have the amount of compensation determined.
9. We might, without any very great stretch of our powers, award to the plaintiff the whole of the Rs. 250 by way of compensation, but strictly speaking, of course, the amount of compensation is a question of fact, and there ought perhaps to be some reduction, however small, from the Rs. 250 for the time during which the plaintiff was in possession.
10. The defendant No. 1 (respondent) is not present here; so we have no means of asking him to consent to any sum; and therefore we think the best thing we can do, in order, if possible, to save expense to both parties, is to remand, the case to the Court below to ascertain the proper amount, unless the first defendant will consent to a decree for Rs. 230, with costs in the two lower Courts, but not in this.
11. The plaintiff consents to these terms; but if the defendant No. 1 does not consent to them, then the case must go back to the lower Appellate Court to ascertain what the compensation should be. The Court will probably then give the plaintiff a larger amount than we propose to give him now.
12. The decrees of the Court below will, therefore, be reversed, and, subject to the first defendant's consent, the decree will be for the plaintiff for Rs. 230, with costs in the lower Courts, each party paying his own costs in this. If this decree is not consented to by the defendant No. 1, the case will go back to the lower Appellate Court to ascertain the amount; and in that case the costs of the remand, and also the costs of the lower Appellate Court in ascertaining the amount, will be paid by the defendant No. 1.
13. We should add that, under Section 28 of the Procedure Code, we think that this alternative claim, to which the plaintiff is entitled, may be made against one or more of the several defendants.