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TMI Blog1934 (7) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... ee for possession granted in favour of the plaintiff. Hence the present appeal by the unsuccessful defendant. It will be convenient to refer to the parties in their original characters of plaintiff and defendant, bearing in mind that the plaintiff is now the respondent and the defendant now the appellant. 2. The circumstances in which the defendant came to be in possession of the half-plot of land from which the plaintiff seeks to eject him may be shortly stated : In the year 1919 the plaintiff and the defendant were both applicants for a grant of the same plot of building ground in New Sukkur. The Collector, by order dated 25th February 1919, granted the northern half of the plot to the defendant, and the southern half to the plaintiff. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to inform him that this was so. Nevertheless, he failed to execute a conveyance in favour of the defendant, and on 22nd December 1920, the Collector made an order cancelling the grant in his favour of the southern half-plot. The plaintiff appealed against this order to the Commissioner, who declined to recall it. On 17th March 1921, the Collector made a new grant of the southern half-plot to the defendant, who entered into possession and proceeded to carry on building operations upon it. 4. The plaintiff then raised the present action of ejectment. In his plaint, which is dated 20th December 1921, he pleaded inter alia that he had committed no breach of the terms of his grant or of his agreement, that the order of the Collector cancellin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would have been in time, but that by 3rd August 1925, when the defendant was allowed by the Acting District Judge to amend his written statement, such an action would have been barred by the Limitation Act, Section 3, Schedule 1; Article 113. The effective decision of the District Judge was that the defendant having become entitled to specific performance of the plaintiff's agreement to sell the southern half-plot to him, the possession of the defendant, coupled with the existence of the agreement in his favour, is a complete defence to the suit. 5. In the Court of the Judicial Commissioner on appeal the decision of the District Judge was reversed, and the plaintiff held entitled to succeed, mainly on the ground that the defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reed to sell him the half-plot, and that he is in fact in possession of it. Their Lordships will assume without deciding that the defendant sufficiently pleaded the agreement of sale in his written statement of 7th May 1922, when an action for specific performance would still have been in time and that the amendment of 3rd August 1925, by which date the defendant could no longer have sued for specific performance was an unnecessary precaution. 8. As the law of India stood at the date of this case, it is, in their Lordships' opinion, no relevant defence to an action by a land-owner for ejectment to plead that the plaintiff has agreed to sell to the defendant the land of which the plaintiff seeks to obtain possession. By Section 54, T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enable him to compel the plaintiff to execute an instrument in his favour which he could have duly registered. The remedy thus available to the defendant would not have depended on any recognition of the agreement of sale as in itself a defence to the action of ejectment, but rather on the principle that the Court will not grant a decree of ejectment which can at once be rendered ineffective by the same Court being required to grant a decree of specific performance resulting in reinstatement. But the defendant did not ask for a stay, and did not raise any action for specific performance. Now he is too late to do so; the agreement of sale has become unenforceable. 10. The English doctrine of part performance, as Lord Russell of Killowen e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the existence of a contract of sale, whether with or without an averment of possession following upon the contract, is not a relevant defence to an action of ejectment in India. If the contract is still enforceable the defendant may found upon it to have the action stayed, and by suing for specific performance obtain a title which will protect him from ejectment. But if it is no longer enforceable, its part performance will not avail him to any effect. See Currrimhoy Co. v. Creet 1933 P.C. 29, per Lord Thankerton at pp. 303-4. 12. In the present instance, as was pointed out in the Judicial Commissioner's Court, the defendant's possession was not even referable to the agreement of sale, but their Lordships do not proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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