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Madhya Pradesh High Court · body

2004 DIGILAW 976 (MP)

PRAKASHCHANDRA v. MAHALAXMIBEN

2004-12-04

S.K.GANGELE

body2004
( 1 ) THIS is plaintiffs Second appeal against the judgment and decree passed in Civil Appeal No. 77-A/84, affirming the judgment and decree passed in Civil suit No. 27-A/81 dated 21-2-1983. ( 2 ) THIS Judgment shall also govern the disposal of Second Appeal No. 9/89 (Laxmi v. Smt. Mahalaxmiben); S. A. No. 14/89 (Daulatrao v. Smt. Mahalaxmiben): S. A. No. 21/89 (Laxmansingh v. Smt. Mahalaxmiben): S. A. No. 176/89 (Chhaganlal v. Smt. Mahalaxmiben): S. A. No. 178/89 (Denanath v. Mahalaxmiben) and S. A. No. 179/89 (Shaligram v. Mahalaxmiben) because all civil suits were conducted together and a common evidence was recorded in all the appeals and a common Judgment was passed by the trial Court. ( 3 ) THE appeal was admitted by the Court on 29-11-1989 on the following substantial question of law :-"whether on the facts and circumstances of the case, learned lower Court erred in law in refusing to grant a decree for specific performance of contract or alternatively for refund of consideration and damages on perverse finding and erroneous approach?" ( 4 ) EARLIER all the plaintiffs filed a common suit under O. 1, R. 10 of the Code of civil Procedure with regard to specific performance of contract. The suit was filed on 20-12-1966. It was pleaded by the plaintiffs that there was an agreement with the defendants to sell the plot on 22-8-1962 with regard to a colony named as Veer Savarkar colony. The defendants did not perform the terms of the agreement. Each plaintiff had paid Rs. 500/- as an advance and they contacted the defendants so many times and held meetings with them between 1964 to 1966. The proceedings of the meetings were signed. In spite of that, the sale deed was not executed to specific performance of contract directing the respondents to execute the sale deeds in their favour as per agreement dated 22-8-1962, The defendants denied the claim of the plaintiffs. ( 5 ) THE suit of the plaintiffs was dismissed by a judgment dated 31-1 -1969 (Ex. D-2 ). It has been held by the learned Judge that the price of each plot was Rs. 1500/ -. The suit having been based on 1962 agreement, it had to be valued accordingly and the Court fees be paid properly. ( 5 ) THE suit of the plaintiffs was dismissed by a judgment dated 31-1 -1969 (Ex. D-2 ). It has been held by the learned Judge that the price of each plot was Rs. 1500/ -. The suit having been based on 1962 agreement, it had to be valued accordingly and the Court fees be paid properly. The learned Court held as under:-"that being so the suit is not maintainable in this Court and is returned for proper presentation with further Court fees. Plaintiffs to pay the costs to the defendants. " ( 6 ) AGAINST that the plaintiffs filed a Revision before the High Court. That Revision was registered as C. R. No. 266/69. It was dismissed by the High Court holding that the proper forum would be to file an appeal against the judgment. The order of Revision was passed on 1-5-1970 (Ex. D-1 ). After passing of the order, all the persons filed individual suits before the Civil Judge Class-II on 20-7-1970. Plaintiff pleaded that the respondents were going to develope a Veer savarkar Colony in an area of 8. 70 acres of land, situated at Survey No. 1356/1 and 1358/1 at Bhawarkuwa Road, Indore. The defendants executed an agreement on 22-8-1962 with regard to grant of plot on lease for 99 years to the plaintiff the rent of the lease was Rs. 22. 50 per year. It was further mentioned in the agreement that after certain conditions, registry of the plots would be executed. The plaintiff prayed for a decree in their favour directing the defendants to execute sale deed as per agreement and develop colony. ( 7 ) IN the meanwhile on 22-4-1962, indore Town Improvement Trust published a Notification in a daily news paper "nai duniya". By the aforesaid Notification, it was mentioned that the Town Improvement trust was going to acquire the land. Finally, on 16-7-1963, the Indore Town Improvement Trust had left the idea of acquiring the land. Thereafter, the plaintiffs along with other purchasers held a meeting with Mr. Shrikrishna Khandelwal on 6-12-1964 and he had given an assurance that registry of the plots would be executed very soon. The area of plot was 1500 sq. ft. It was also agreed that the defendants would make necessary investment for development of the colony. Thereafter, the plaintiffs along with other purchasers held a meeting with Mr. Shrikrishna Khandelwal on 6-12-1964 and he had given an assurance that registry of the plots would be executed very soon. The area of plot was 1500 sq. ft. It was also agreed that the defendants would make necessary investment for development of the colony. They will receive sanction from the concerned Authorities with regard to development of the Colony, including diversion of the land because without diversion, the land can not be developed as a Colony in an urban area. ( 8 ) COMMON evidence was recorded in all the suits and the suits were tagged together in pursuance of the order of the High Court passed in Civil Revision No. 662/74. The learned trial Judge vide judgment dated 21 -2-1985 dismissed the suit. The trial Court held that there was an agreement between the plaintiffs and defendants with regard to grant of plot for 99 years' lease and it was the duty of the defendants to obtain order of diversion of the land and mark the plots. The trial Court further held that it has not been proved that the defendants have contravened the terms of the agreement and the defendants did not pcrlorm their part of the duty and the suit has been filed beyond limitation hence the plaintiffs are not entitled lor a decree of specific performance of contract. Against the said judgment, the plaintiffs filed an appeal before the District Judge, indore. It is an admitted fact that the defendant no. 1 did not file any reply. The learned appellate Judge elaborately discussed the evidence and terms and conditions of the agreement. The required terms and conditions are reproduced as under :- (2. . . . . . . . . . . . . . . . . . (3. Out of the total price of the plot Rs.-------------in words--------------------today-----------------I have paid Rs.--------------- -. After paying the balance amount, I will get registration done legally; (4. After the registration, yearly lease would be started. I will obtain receipt of the amount of lease for five years of Rs. 112. 50 after paying you the same and after that I will go on paying the amount of the lease either to you or to a person authorised by you; (5. I will bear all the expenses of stamps etc. I will obtain receipt of the amount of lease for five years of Rs. 112. 50 after paying you the same and after that I will go on paying the amount of the lease either to you or to a person authorised by you; (5. I will bear all the expenses of stamps etc. for registration of the plot; (6. I will pay Rs. 25/- additional transfer fees, if I want to transfer the plot allotted to me before registration to anyone; (7. You will have to start development work according to the Scheme after the sale of 3/4th plots of the colony; (8. I will take possession of the plot after paying you the upset price thereof with lease amount for five years and only thereafter I will start the construction work; before I do the same, I will have no right to enter the plot and do anything on it; (9. You will have a right as per the agreement to forfeit the amount paid by me towards the price of the plot, if I do not get the plot registered after paying you the balance amount of the plot; (10. Likewise, I will be entitled to get back the amount paid by me towards the price of the plot, if you fail to get registered my plot after full payment for me. ( 9 ) THE appellate Judge held that it was the duty of the defendants to divert the land and develope it according to the agreement and the land acquisition proceedings were going on with regard to the land and finally they terminated on 16-7-1963 but the defendants did not take any step for diversion, development of the land and demarkation of plots. In such a condition up to 11-7-1966, the plaintiffs could not compel the defendants for registration of the plots. The learned Court further held that the plaintiffs were ready and willing to perform their part of agreement with regard to registration but the defendants refused to register the plot and then they have not done any act as per the agreement. He further held that Rs. 500/- were paid by each of the plaintiffs to the defendants. There were meetings between the plaintiffs and defendants with regard to execution of contract but in spite of that the contract was not executed. He further held that Rs. 500/- were paid by each of the plaintiffs to the defendants. There were meetings between the plaintiffs and defendants with regard to execution of contract but in spite of that the contract was not executed. ( 10 ) THEREAFTER, the plaintiffs filed a suit before the trial Court in representative capacity and in Revision the plaint was returned to the plaintiffs on 21-7-1972, for presentation before the proper Court. Thereafter, the plaintiffs filed the present suit before the Civil Court. Hence, the suit is within limitation as per S. 14 of the Limitation Act, 1963 because the plaintiffs are entitled to exclude the time, which has been spent on persuading legal remedies before the Civil Judge and appellate Court. ( 11 ) THE (sic) that it has not been proved whether the plots have been sold of the above land Khasra No. 1356/1 and 1358/1 but during the argument, learned, counsel for the appellants and respondents have admitted that subsequently the defendants sold the plots to other persons during the pendency of the suit and they have constructed houses. There is no pleading or evidence on record that when the defendant No. 2 sold the plots to other persons but it is an admitted fact that the plots have been sold to other persons and they have constructed houses also. There is also no evidence that in what consideration (sale price) the plots were sold by the defendants to other persons. ( 12 ) AFTER holding all the issues in favour of the plaintiffs-appellants, the learned appellate Court has held that the agreement is of the year 1962 and the plaintiffs filed the suit in the year 1970 after a delay of 10 years and the defendant Narayansingh already sold the plots after formulating new scheme to other persons and due to the said delay of the plaintiffs, the defendants have come in a beneficial position. Hence, in the above facts and circumstances of the case, no decree for specific performance of contract could be granted in favour of the plaintiffs. The learned appellate Court has also held that because the plaintiffs did not ask to return the earnest money, which was paid to the defendants at the time of execution of the agreement, hence, the said relief also cannot be granted and dismissed the appeal. The learned appellate Court has also held that because the plaintiffs did not ask to return the earnest money, which was paid to the defendants at the time of execution of the agreement, hence, the said relief also cannot be granted and dismissed the appeal. ( 13 ) LEARNED counsel for the appellant has submitted that both the Courts below have committed an error of law in dismissing the appeal for specific performance of contract. It is further submitted by the learned counsel that the plaintiffs were ready and willing to perform their part of the contract and they had fulfilled all the conditions in this regard. The defendant-respondents fraudulently with malice sold the property to other persons when the property was cleared from the land acquisition and also the rates of the property were increased astronomically. ( 14 ) ON the contrary, learned counsel for the respondents has submitted that there was delay on the part of the plaintiffs with regard to filing of the suit for specific performance of the contract and also during the said period the respondents have gained advantageous position. The property has already been sold and houses were constructed. The plaintiffs had not objected when the property was sold neither they filed any application before the Court below for restraining the respondents to dispose of the property. Learned counsel for the respondents has also submitted an additional plea that the findings of the appellate Court that the suit filed by the plaintiff-appellnt was within limitation is against the law and the learned appellate Court has committed an error of law in coming to the conclusion that the plaintiffs have a right to exclude the time, which was spent on pursuing other remedies as per Section 14 of the Limitation Act. When it is pdinted out to the learned counsel for the respondents that no substantial question of law has been framed on this count, the learned counsel has submitted that under o. 41, R. 22, CPC, the respondents can not file a cross appeal against the judgment of the appellate Court. Hence, on the basis of above principle of law, they can challenge the other findings also. For this purpose, learned counsel for the respondent has relied on a decision reported in AIR 2002 SC 2562 (Nalakath Sainuddin v. Koorikadan Sulaiman ). Hence, on the basis of above principle of law, they can challenge the other findings also. For this purpose, learned counsel for the respondent has relied on a decision reported in AIR 2002 SC 2562 (Nalakath Sainuddin v. Koorikadan Sulaiman ). ( 15 ) BEFORE answering the questions raised by the learned counsel for the appellant and the respondents, it is necessary to brief some facts. It is an admitted position that the plaintiff and defendants-respondents entered into an agreement. Various agreements were filed alternatively (Ex. P-72 ). The agreement was executed on 22-8-1962 and some conditions of the agreements have been mentioned above in the judgment. It is clear from the said conditions that the defendants were agreed to sell a plot of 1500 sq. ft. on a lease of 99 years to the plaintiff on an upset price of Rs. 1500/ -. The annual rent of the lease was Rs. 22. 50. It was further a condition that after selling 3/4th plots of the colony, it was the duty of the defendants to start development work. It is clear from the above conditions that after the registration of sale deed, possession of the plots had to be given subsequently and it was also the duty of the defendant. s to start development work, which means demarkatlon of plots and diversion of land because the land was situated in a village area. It is also an admitted position that from 24-2-1961 up to 16-7-1963 acquisition proceedings with regard to property were going on by the Town improvement Trust, Indore and those proceedings came to an end on 16-7-1963. There is no evidence that the defendants had taken any steps for diversion of the land or they developed the land or even they have demarcated plots. There is ample evidence as held by the appellate Court that from 61 to 65 the plaintiffs have contacted the defendants number of times with regard to registration of the plots and there were meetings also between the plaintiff and defendants. The plaintiffs also formed a Co-operative Society, that was also registered. It means that the plaintiffs were willing and ready to perform their part of the contract but the defendants any how denied the registration of the land. The plaintiffs also formed a Co-operative Society, that was also registered. It means that the plaintiffs were willing and ready to perform their part of the contract but the defendants any how denied the registration of the land. ( 16 ) THEREAFTER, all the plaintiffs filed a suit in representative capacity, which was held as not maintainable and a Revision was filed before the High Court, which was also dismissed and consequently the plaint was returned back for presentation to the proper court and thereafter the plaintiffs filed the present suit in individual capacity and all the plaints were consolidated. It is also an admitted fact, as held by the learned appellate Court that during the pendency of the appeal and suit proceedings, the property came into the ownership of Narayansingh albela and he had sold the property. It is also an admitted fact that Smt. Shantibai died during the pendency of the appeal but when the property came into the ownership and possession of Narayansingh - the respondent no. 5 there is no question of abatement of appeal. It is also an admitted position that Narayansingh also died and his legal representatives have been brought on record. ( 17 ) THE learned appellate Court has dismissed the appeal only on the ground that the agreement with regard to purchase of the property between the plaintiff and defendants is in the year 1961-63 and the suit was filed was of the year 1970 and due to delay of 10 years, the defendants have come in a beneficial position and he had also sold the plots after forming a new scheme. In these circumstances, the decree for specific performance can not be granted. ( 18 ) IN my view the above findings of the learned appellate Court on this count are perverse and against the position of law and provisions of Specific Relief Act. Section 20 of the Specific Relief Act provides discretion to the Court with regard to decreeing of specific performance of contract. Sub-sec. ( 18 ) IN my view the above findings of the learned appellate Court on this count are perverse and against the position of law and provisions of Specific Relief Act. Section 20 of the Specific Relief Act provides discretion to the Court with regard to decreeing of specific performance of contract. Sub-sec. (2)of this Section provides the contingency where the Court can refuse to grant a decree of specific performance, which is as under :-"the following are cases in which the court may properly exercise discretion not to decree specific performance : (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage, over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. " ( 19 ) THE Hon'ble Supreme Court in ( (2004) 8 SCC 689 ) (Swarnam Ramchandran (Smt) v. Aravacode Chakungal Jayapalan)has held as under :-"time is presumed not to be of the essence of the contract relating to immovable property, but it is of the essence in contracts of recoveyance or renewal of lease. A vendor has no right to make time of the essence, unless he is ready and willing to proceed to completion and secondly, when the vendor purports to make time of the essence, the purchaser must be guilty of such gross default as to entitle the vendor to rescind the contract. Whether time is of the essence is a question of fact and the real test is the intention of the parties. It depends upon the facts and circumstances of each case. In cases where notice is given making time of the essence, it is the duty of the Court to examine the real intention of the party giving such notice by looking at the facts and circumstances of each case. It depends upon the facts and circumstances of each case. In cases where notice is given making time of the essence, it is the duty of the Court to examine the real intention of the party giving such notice by looking at the facts and circumstances of each case. The intention can be ascertained from : (i) the express words used in the contract; (ii) the nature of the property which forms the subject matter of the contract; (iii) the nature of the contract itself; and (iv) the surrounding circumstances. The onus to plead and prove that time was of the essence of the contract is on the person alleging it, thus giving an opportunity to the other side to adduce rebuttal evidence that time was not of the essence. When the plaintiff pleads that time was not of the essence and the defendant does not deny it by evidence, the Court is bound to accept the plea of the plaintiff. " ( 20 ) HON'ble the Supreme Court in Sardar singh v. Krishna Devi, (1994) (4) SCC 18 : ( AIR 1995 SC 491 ) has held as under at page 496 of AIR:-"since S. 20 (1) of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary, the court is not bound to grant such relief merely because it is lawful to do so observing at the same time that the exercise of such discretion must not be arbitrary but sound and reasonable guided by judicial principles and capable oi correction by the appellate court. The circumstances specified in Section 20 were considered to be illustrative and not exhaustive and that the Court should take into consideration circumstances in each case. "further in K. Narendra v. Riviera Apartments (P) Ltd. , (1994 (1) SCC, p. 77 : (AIR1999 SC 2309), the Supreme Court has held as under at page 2316 of AIR :-"severe hardship may be a ground for refusing specific performance, even though it results from circumstances, which arise after the conclusion of this contract, which affect the persons of the defendant and for which the plaintiff is in no way responsible. Adverting to inflationary increase in the value of properties and the relevance of the same is denying or granting the relief at paragraph 35 of the Report, it was observed as hereunder : (SCC pp. Adverting to inflationary increase in the value of properties and the relevance of the same is denying or granting the relief at paragraph 35 of the Report, it was observed as hereunder : (SCC pp. 93-94):"added to all this is the factum of astronomical rise in the value of the land which none of the parties would have for contemplated at the time of entering into the agreement. We are not in the least holding that the consideration agreed upon between the parties was inadequate on the date of the agreement. We are only noticing the subsequent event. Upon an evaluation of the totality of the circumstances, we are of the opinion. The contract though valid at the time when it was entered, is engrossed sin such circumstances that the performance thereof can not be secured with precision. The present one is a case where the discretionary jurisdiction to decree the specific performance ought not to be exercised in favour of the respondents. "the same view has been expressed by hon'ble the Supreme Court in K. S. Vaidyanadam v. Vairavan (1997 (3) SCC, p. 1 : ( AIR 1997 SC 1751 ) as under :-"a. P. Reddy, J. speaking for this Court, observed as under :- at page 1755 of AIR shri Sivasubramaniam cited the decision of the Madras High Court in S. V. Sankaralinga Nadar v. P. T. S. Ratnaswami nadar ( AIR 1952 Mad 389 ) holding that mere rise in price is no ground for denying the specific performance. With great respect, we are unable to agree if the said decision is understood as saying that the said factor is not at all to be taken into account while exercising the discretion vested in the Court by law. We cannot be oblivious to the reality and the reality is constant and continuous rise in the values of urban properties -fuelled by large scale migration of people from rural areas to urban centres and by inflation. "in a recent judgment reported in 2001 (7) SCC 617 ( AIR 2001 SC 2446 ) the Supreme court held as under :- at page 2452 of AIR"that where the Court is considering whether or not to grant a decree for specific performance for the first time the rise in the price of the land agreed to be conveyed may be a relevant factor in denying the relief of specific performance. Reference has also been made above to a decision of this Court in Gobind Ram v. Gain Chand (sic) wherein, in order to mitigate the hardship resulting to the vendor due to lapse of time and escalation of prices of urban property; further compensatory amount was ordered to be paid, even though in that case the trial Court granted a decree for specific performance for consideration recited in the document and the balance of consideration was also deposited by the purchaser in full, thereon. "the Hon'ble Supreme Court further in ( (2002) 8 SCC 146 ) : ( AIR 2002 SC 3396 ) (Nirmala Anand v. Advent Corporation (P)Ltd.) has held as under :- at page 3397 of AIR "it would not be unreasonable and inequitable to make the appellant the sole beneficiary of the escalation of real estate prices and the enhanced value of the flat in question. There is no reason why the appellant, 1 who is not a defaulting party, should not be allowed to reap to herself the fruits of increase in value. Grant of decree of specific performance lies in the discretion of the Court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. However, the Court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into account for refusing the decree of specific performance. As a general rule, it can not be held that ordinarily the plaintiff can not be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which patties may not have any control. The totality of the circumstances is required to be seen. ( 21 ) IN view of the above pronouncement of law of Hon'ble the Supreme Court and the provisions of S. 20 of the Specific Relief act, in the opinion of this Court, the appellate Court has committed an error of law in refusing to grant any relief to the plaintiffs when admittedly there was no fault on the part of the plaintiffs. Contrary to this, the conduct of the respondents defendants is not fair. With repeated requests the defendants deliberately did not execute the sale deed neither they had taken any steps with regard to development of the colony, demarcation of plots, obtaining permission of diversion and any how avoided to sell the plots o the plaintiffs. The plaintiffs have been pursuing the remedy in a Court of law. Hence, it can not be said that due to their negligence or lapse the defendants have come into advantageous position. ( 22 ) THE intention of the respondents defendants is further clear from the fact that however, during the pendency of the suit, they sold the property to 3rd party and those persons have already constructed houses. In this situation, it is not possible for this court to grant a decree of specific performance of contract with regard to execution of sale deed in favour of the plaintiffs but S. 21 of the Specific Relief Act empowers this court for awarding damages if there is any breach of performance. It is clear from the facts and circumstances of the case that the defendants deliberately have not performed their duty and also sold the property dishonestly, certainly they are liable to damages. ( 23 ) BEFORE answering the question, I would like to answer the objections raised by learned counsel for the respondent-defendants with regard to limitation of an application under S. 14 of the Limitation Act. ( 23 ) BEFORE answering the question, I would like to answer the objections raised by learned counsel for the respondent-defendants with regard to limitation of an application under S. 14 of the Limitation Act. It is an admitted fact that the plaintiffs have earlier filed a suit jointly and that was within limitation. The learned trial Judge has held in that suit that because proper valuation was not done hence the plaint had to be returned back to the plaintiffs for proper valuation and presentation in the proper Court. Against that a Revision was filed and that was also dismissed. Thereafter, the present suit was filed. The earlier suit was filed without proper valuation hence it was a jurisdictional error. ( 24 ) HON'ble the Supreme Court in Arm group Enterprises Ltd. v. Waldorf Restaurant, (2003) 6 SCC 423 : ( AIR 2003 SC 4106 )has held that under S. 14 of the Limitation, the period spent in prosecuting civil proceedings bona fide and without due diligence is liable to be excluded in computing the period of limitation for the suit or the application. ( 25 ) THE learned appellate Court has also referred to a decision of Hon'ble the Supreme court reported in AIR 1971 SC 231 (State of Tamil Nadu v. M. Rayappa Gounder ). ( 26 ) ON the basis of the above, I reject the objection of learned counsel for the respondent-defendants that the suit was not filed within limitation and has to be rejected on above ground. ( 27 ) ON the basis of the above analysis, I answer the substantial question of law in the affirmative by holding that both the courts below have committed an error of law in refusing to grant consideration and damages to the plaintiffs. ( 28 ) NOW next question is that what damages to the plaintiffs have to be granted. There is no such pleading that at what price the defendant had sold the property and the 3rd persons constructed houses but admittedly the agreement was of the year 1960-63 to sell a plot for consideration of rs. 1500/ -. Defendants have received rs. 500/- each from the plaintiff as advance and after a period of 40 years, price of the land has been increased phenomenally. In the above facts and circumstances of the case, it would be appropriate to grant a lump sum of Rs. 1500/ -. Defendants have received rs. 500/- each from the plaintiff as advance and after a period of 40 years, price of the land has been increased phenomenally. In the above facts and circumstances of the case, it would be appropriate to grant a lump sum of Rs. 50,000/- to the each plaintiff as damages at present and the case is remanded back to the Civil Court with a direction to issue notices to all the defendants and all the persons who have purchased the property during the pendency of the suit and to exact quantify that in what price the defendants had sold the property and other persons have gained the profit from using the said property for such a long time and what would be the price of the property at present and thereafter the trial Court will determine the actual price or damages which have to be paid to each plaintiff. The appeal is allowed to the extent mentioned above. A decree be drawn accordingly. Order accordingly. .