1. The suit out of which this second appeal arises was brought by one Satish Chandra Das against the Barisal Loan Office Limited to recover compensation in respect of certain properties purchased by him from the defendants. The plaintiff had purchased a large number of properties from the Barisal Loan Office Limited by a registered Kobala dated the 2nd Aswin 1335 corresponding to 18th September 1928, for a sum of Rs. 21,900. The Barisal Loan Office Limited had purchased these properties at a sale which took place in certain execution proceedings arising out of a decree in a mortgage suit which the defendants themselves had instituted in order to enforce the mortgage on the properties in question. The Barisal Loan Office Limited was, therefore, in the position of being not only the judgment--creditors, but also the purchasers at the auction which took place in execution proceedings.
2. The plaintiff was claiming in the suit compensation in respect of six of the properties comprised in the Kobala on the ground that he could not get possession of those properties from the defendants, who were the vendors. The position was that the Barisal Loan Office Limited, the purchasers at the auction held by the Court, had never taken delivery of possession of these six properties and that long before the date of sale of these properties to the plaintiff the defendants' right to take possession through Court had become extinguished by virtue of the provisions of Article 181, Limitation Act. The plaintiff made the case that as he could not get possession of these six properties and as the Barisal Loan Office Limited was not in a position to put him in possession of those properties he was entitled to have back so much of the purchase price as represented the value of the six properties in question. The defence set up in the suit, briefly stated, was that the defendants had given no guarantee of title and, on the other hand, it had been expressly stipulated in the kobala itself that the defendants as the vendors should not be made liable for any defect of title concerning the properties which they purported to sell to the plaintiff. The learned Subordinate Judge who tried the case accepted the view put forward on behalf of the defendants and he dismissed the suit. The plaintiff there-upon appealed from the decision of the Subordinate Judge of Barisal to the Additional District Judge, 1st Court, Bakargunj and it is against the judgment of that Court that this appeal comes to us. The learned Additional District Judge has summed up the matter in these words:
In my opinion there is nothing in the Kobala which stands in the way of the plaintiff elaiming his common law right to get back his money which he paid for property of which he cannot get possession and which the vendor was at the date of the sale legally precluded from putting him in possession.
3. He accordingly finds that the plaintiff was entitled to compensation and he has made an order that the case should go back to the trial Court for assessment of the compensation. Mr. Gupta appearing on behalf of the defendants appellants has argued that there is sufficient provision in the kobala itself to exclude the operation of the provisions of Section 55, Sub-section 1 (f), T. P. Act. That subsection when taken in conjunction with the operative part of the section is to the following effect:
In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights mentioned in the rules next following or such of them as are applicable to the property sold. 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.
4. It is not disputed in this case that the plaintiff, the purchaser of the properties set forth in the schedule to the Kobala, has not been put in possession of the six properties or parcels of land which are the subject--matter of the present suit. Moreover it is admitted that at the time of the conveyance the vendors themselves had never been in possession of these properties and had lost all rights to get possession of the properties by legal process. The position therefore was that on 18th September 1928, the vendors were unable to comply with the provisions of Section 55 (1) (f), T. P. Act. It is argued, however, on behalf of the appellants that their obligation to comply with the provisions of that section does not and did not exist at the time of the Kobala by reason of certain provisions contained in the document and in this connexion Mr. Gupta has relied upon two passages contained in the Kobala. The first of those passages appears at p. 5 of the copy of the translation which has been supplied to us and is in these words:
No objection or excuse thereto by anybody will be accepted. Or if it transpires that no possession has been taken according to law in any of the properties then you may, if you think necessary take at your own cost possession therein according to legal procedure; and if necessary, I shall render you help in taking such possession, at your cost and Tadbir.
5. Mr. Gupta has argued that that passage indicates that it was common knowledge between the parties to this conveyance that there were certain properties of which the vendors had not acquired possession and this provision was inserted in the Kobala to cover that position and to provide that the plaintiff as purchaser should himself take such steps as were necessary to get possession of those particular properties with such assistance as the defendants--the vendors--were able to render to him. In my opinion that passage is of no assistance whatever to the defendants in this case because it now appears--and indeed Mr. Gupta has admitted on behalf of the clients--that the properties which are the subject-matter of the suit are comprised in the list set forth in Schedule Ka of the Kobala. That appears from a passage in the earlier part of the document which is in these words:
Barisal Loan Office Limited Company on 22nd June 1917 in Execution Case 74 of 1916 arising out of Mortgage Suit No. 345 of 1907 of the 2nd Sub--Judge's Court of Barisal and on 14th December 1920 in Execution Case arising therefrom under Section 90, numbered as Execution Case No. 58 of 1920 and on 20th January 1909 in Execution Case No. 91 of 1908 arising out of Mortgage Suit No. 2 of 1897 of the 1st Sub-Judge's Court, Barisal, purchased at Court sales the shares described of properties No. Section 1-38 of Schedule (ka) below within District Backergunge, and after the confirmation of the said sales by the Courts concerned, the said Company on taking out sale certificates and executing writs for delivery of possession took possession in the said purchased properties through Court, and has been in ownership and possession thereof by receipt of the rent from the tenants of the said Mahals in exercise of the right and possession arising by virtue of the said auction--purchasers, and so far as the khas lands are concerned, by receipt of rent and crops &c;, in khas.
6. There is a definite statement that the whole of the 38 properties with which we are concerned in the present appeal had been taken into possession by the defendants as auction--purchasers and that therefore they were in a position to give possession of those 38 properties to the plaintiff as purchaser under the kobala. In those circumstances it seems to me that the passage at p. 5 which I have read has no application and certainly can be of no assistance to the present appellants. There is however another passage in the kobala which at first sight seems to afford some basis for the contention put forward on behalf of the defendants at the trial. That passage appears at p. 6 of the copy of the translation of the Kobala and it is in these words:
As regards the hastabad (gross collection) which is shown as stith you have got the same checked by reference to the settlement papers and the company's collection papers. If for any reason in future a lesser amount than the same be found as hastabad, or if any defect in title be found with respect to any property, then the company will not be liable therefor. You are purchasing this property being all along cognizant of the full particulars of the mahal and after making a prayer for purchasing the property without any investigation, and in these circumstances the loan office will not be liable to you for any such reason as aforesaid.
7. The actual words which have been stressed by Mr. Gupta and upon which he mainly relies are these: If any defect in title be found with respect to any property then the company will not be liable therefor.
8. Mr. Gupta in his argument has contended that this saving clause exonerating the defendants from all liability for any defect in title must be taken as covering the position where there is not only a defect in title but a complete want of title. Mr. Gupta, has invited us to come to the conclusion that the position in the present case in effect is this: that with regard to the six properties in question the plaintiff has discovered that there was total want of title in the vendors and therefore, says Mr. Gupta, by virtue of the provisions in the passage in the kobala the defendants are not liable to pay compensation to the plaintiff. It seems, to me that the fallacy of the argument lies in this, because the passage in question begins with the words 'If for any reason in future' we ought to take it that this clause can only come into operation on the supposition that the plaintiff had been put into possession of all the 38 properties and had subsequently discovered that as regards one or more or even all of them there was a defect in the vendors' title. In my opinion the language of this clause by no means excludes the statutory obligation that lay on the defendants to comply with the provisions of Section 55 (1) (f), T. P. Act. The learned Additional District Judge refers to a case, Digamber v. Nishabala (1910) 8 I C 91., and on the authority of that case he says 'the contract must, be clear and unequivocal'. Then he quotes a passage from an English case:
When a vendor sells property under stipulations which are against common law right and places the purchaser in a position less advantageous than that in which he otherwise would be, it is incumbent on the vendor to express himself with reasonable clearness, if he uses expressions reasonably capable of misconstruction; if he uses ambiguous words, the purchaser may generally construe them in the manner most advantageous to himself.
9. The English case which is referred to must be the case of G. W. Ry. Co. v. Fisher (1905) 1 Ch 316,. On the strength of those two authorities the learned Additional District Judge says this:
The question is whether this statutory right of the buyer and the corresponding statutory obligation of the seller was in the present case taken away by any contract between the buyer and the seller.
10. In my judgment neither of the passages which I have recited nor any other provisions in the kobala of 18th September 1928 are sufficiently explicit and sufficiently free from ambiguity to justify in holding that the defendants are exonerated from their obligation to comply with Section 55, T. P. Act. It has to be borne in mind that owing to the defendants' failure to take the proceedings prescribed by the provisions of Order 21, Rule 95, Civil P. C., for the purpose of obtaining possession of all the properties which they had purchased at the auction sale they at the time of the kobala had not obtained possession of the six properties now in dispute and they had for all time lost the right to obtain possession of those properties by any reasonable means and therefore they could not give to the plaintiff possession of those properties and at no time either when the kobala was executed or subsequently were they or could they be in a position to assist the plaintiff to obtain possession of those properties. For those reasons I am of opinion that this appeal must be dismissed with costs, hearing fee five gold mohurs.
Derbyshire, C. J.
11. I agree.