Suhrawardy, J.:— This suit was brought by the plaintiffs apparently under Section 19 of the Specific Relief Act, for specific performance of a contract and in the alternative for recovery of the earnest money paid to the defendants out of the price fixed for some land. Both the Courts below have held that there was no contract as pleaded by the plaintiffs and they dismissed the claim for specific performance.
2. The only question which is now argued before us, is whether the plaintiffs are entitled in the circumstances of this case to have a refund of the money paid to the defendants, as they say by way of earnest money.
3. It is stated that the defendants contracted to sell to the plaintiff company the underground rights in 9 bighas and 17 cottas of land at Rs. 150 per bigha and received Rs. 800 as earnest. The trial Court found that there was no good and reliable evidence about the payment of Rs. 800 as part of the price settled for the disputed land. The learned District Judge on appeal says:
“In my opinion it is for the plaintiffs to prove that they are entitled to get it back and in the present case the evidence adduced by the plaintiffs is so confusing, contradictory, inconsistent and untrustworthy that in my judgment it is impossible to give them any relief.”
4. In the face of this finding it would seam that the decree of the lower appellate Court dismissing the suit in toto, cannot be assailed.
5. Mr. Sen Gupta on behalf of the appellant argues that the defendants having admitted that they received Rs. 800 from the plaintiffs the onus lies upon them to prove how they obtained that money and if they cannot satisfy the Court that they are entitled to retain it they must refund it to the plaintiffs. This contention, I am of opinion, should not be accepted. The scope of the suit is a limited one. The plaintiffs came to Court on the allegation that there was a valid contract subsisting between the parties and the only relief in a case like this which he could get was a decree or specific performance of a contract failing that, compensation for the breach of contract and the return of any money that might have passed from the plaintiffs to the defendants under the contract. The Courts below are of opinion that there was no contract between the parties and no money passed from the plaintiffs to the defendants under the contract. The position taken by the appellants is that as the defendants say that they got the money not under the contract but by way of compensation for the injury caused to their land by the plaintiffs, they must satisfy the Court that they got-the money on that account and that as they failed to do so they must refund the money to the plaintiffs. I think the plaintiffs cannot insist upon the defendants proving how they got the money and under what circumstances. They must stand or fall on the case made in the plaint. They must prove that the money was paid to the defendants under the contract. If they fail they cannot get any relief in this case. It has been held in Sooltan Ali v. Chand Bibee . [1868] 9 W.R 130. and in the Full Bench case Poolin Beharee Sein v. Messrs, B. Watson & Co. . [1868] 9 W.R 190 that a written statement in which an admission is made by a defendant cannot be regarded as confession and avoidance and must be read as a whole. It should also be noted that the trial Court remarked that there was no satisfactory evidence that the defendants received the amount from the plaintiffs for damages caused to their land; but the learned—District Judge has not decided that Question as he was decidedly of opinion that the plaintiffs must prove their case as they placed it before the Court. In my judgment the conclusion arrived at by the Courts below is correct. This appeal must be dismissed with costs.
Graham, J.:— I agree. The argument as to the onus of proof which has been advanced on behalf of the appellants cannot in my judgment be acceded to. If it were accepted the result virtually would be that the case would be decided on the pleadings without going into evidence. The correct view as it seems to me is that the onus is upon the plaintiffs to prove the specific case set up by them in their plaint. They cannot after failing to discharge that onus fall back on a partial admission made by the defendants in their written statement and claim that the onus is shifted from them to the defendants. I agree that the appeal fails and is dismissed with costs.
K.N/R.K
6. Appeal dismissed.
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