No. 1667.
Jenkins, C.J:— This Special Appeal arises out of a suit brought to recover possession of certain jalkar rights. This jalkar has been leased on the 2nd of March 1901 to the first Defendant for a period of seven years. On the 1st of May 1901, the lessors ??? into an agreement with the lessees for renewal under certain conditions, on the determination of this term. On the 11th of July 1906, the lessors purported to settle the jalkar with the Plaintiffs for a term of seven years from the 1st of May 1908 and we are told that the Plaintiffs, in return of this, paid a sum of Rs. 600. The Plaintiffs now seek to recover possession of these jalkar rights on the ground that the lease of the 2nd of March 1901 in favour of Defendant No. 1 has come to an end. In the Court of the Subordinate Judge, a decree for possession was passed, but on appeal it was reversed and as against the tenant Defendant the suit was dismissed with costs. The Plaintiffs appeal from this decree.
The position then is this, the Plaintiffs, never having obtained possession, seek to eject the tenant Defendant on the ground that his lease has determined.
The answer made by the tenant Defendant is that though the lease of the 2nd of March 1901 may have come to an end, still he, the Defendant, is in possession of the land and he holds it under the agreement of the 1st of May 1901.
The first question therefore we have to consider is whether the agreement of 1901 is an agreement which can be specifically enforced. It is not suggested before us that it is incapable of enforcement against the lessors; all that can be argued is that the Plaintiffs are persons against whom it cannot be enforced. Sec. 27 of the Specific Relief Act provides that “except as otherwise provided by this chapter specific performance of a contract may be enforced against (a) either party thereto: (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract”. The Plaintiffs come within the description of ‘any other person claiming under a party by a title arising subsequently to the contract’ of the 1st of May 1901, so that primâ facie the contract can be specifically enforced against the Plaintiffs. Do the Plaintiffs bring themselves within the exception, that is to say, have they shown that they are transferees for value who have paid their money in good faith and without notice of the original contract? It is shown that they are transferees for value who have paid money. But can it be said that they did it without notice of the original contract? In determining that we must have regard to the fact that the tenant Defendant was, and has throughout remained, in possession and occupation. But the occupation of property by a tenant ordinarily affects one who would take a transfer of that property with notice of that tenant's rights, and if he chooses to make no enquiry of the tenant, he cannot claim to be a transferee without notice. The Plaintiffs, therefore, are unable to predicate of themselves that they are persons who claim without notice of the contract of the 1st of May 1901. That contract therefore is capable of specific performance against the Plaintiffs and it furnishes a complete answer to their claim-for possession.
The only question then is, whether it can fairly be said that the Plaintiffs have been taken by surprise. It is quite true that the contract of 1st May, 1901 is not specifically mentioned in the written statement: but it is equally true that the tenant Defendant did plead the relationship of landlord and tenant, and this was referable to that contract. Further than that, we have the fact that this particular agreement was filed prior to the trial, and I cannot read the judgment of the Munsif without feeling that the issue, though in very general terms, was settled in reference to the preceding statement in his judgment where there is an obvious allusion to this contract on which the tenant Defendant now relies.
Therefore we cannot give effect to the suggestion that the Plaintiffs were taken by surprise. I accordingly think that the decree of the District Judge should be confirmed and this Appeal dismissed with costs, one set, payable to the tenant Defendant.
No. 2173.
We dismiss this Appeal with costs, two sets.
Appeals dismissed.
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