1. These applications arise out of a suit in which the facts were that the defendant contracted to sell a piece of land to the plaintiff- at a certain rate in 1938,: that the plaintiff alleged that Rs. 500 were paid by him to her as earnest money and that under the contract a registered deed of sale was to be passed within three months of the contract and possession of the property was to be handed over to the plaintiff. According to the plaintiff another sum of Rs. 1,000' was paid to the defendant, the time for passing the sale-deed being extended on that occasion. As the defendant failed to pass the sale-deed or deliver possession of the property, as agreed, the plaintiff filed the suit for getting a registered sale-deed executed by the defendant and, for getting possession of the property. There was an alternative prayer for damages of Rs. 1,500 and refund of the amount paid in case the Court did not enforce specific performance of the contract.
2. The defence was that proper court-fee had not been paid. Thereupon the plaintiff contended that his suit fell under Section 7(v) of the! Court-fees Act, 1870, as it was a suit, for possession ; while according to the defendant the suit fell under Sub-section (x) (a) of Section 7 of the Act, which specifically provides, for suits for specific performance of a contract of sale and states that the court-fee payable in the case of such a suit would be according to the amount of consideration. Both the Courts below have held that there is no substance in the contention of the plaintiff and that court-fee should be paid in accordance with Sub-section (x) (a) of Section 7 of the Court-fees Act.
3. Mr. Thakor on behalf of the applicant has contended that whereas in this case the suit is capable of being regarded as a suit for possession as well as a suit for specific performance, and the court-fee payable, if the suit be regarded as one for possession, weuld be less onerous to his client, the Court should, on the principle that fiscal enactments should be construed in favour of the subject as far as possible, hold that the provision applicable is the one provided by Section 7O), of the Act. In support of this argument he has relied on Modern Mohan Singh v. Gaja Prosad Singh (1911) 14 C.L.J. 159 andRambahadur v. Banwari Lal : AIR1929Pat642 . For the other view we have the authority ofSundara Ramanujam v. Sivalingam I.L.R. (1923) Mad. 150 Nihal Singh v. Sewa Ram I.L.R. (1916) 38 All. 292 and Fakir Chand v. Ram Datt I.L.R. (1923) 5 Lah. 75. There is no Boubt that one of the reliefs asked for, and it may be said that the more important relief, in this case is that regarding possession. But the right of possession claimed in this suit must clearly be deemed to be a right based on a transfer of title and not merely on the contract of sale. In thisse the value of the property being over Rs. 100, the transfer of ownership constituting the sale can be made only by a registered instrument under Section 54 of the Transfer of Property Act, 1882, and the seller is bound, underClauses (d) and (i) of Sub-section (I) of Section 55 of the said Act,, on payment or tender of the price, to execute a proper conveyance of the property and to give the buyer, on being so required, possession of it. It is thus clear that possession is not and cannot be claimed, in a case where there has been a contract of sale, independently of such contract; and specific performance of such contract must be sought in order to obtain possession. The present suit must, therefore, be deemed to be a suit for specific performance of a contract of sale : the mere fact that possession is claimed would not entitle the Court to ignore its essential character as a suit for specific performance of such a contract. If that be so, then, as remarked in Sundara Ramanujam v. Sivalingam, the specific provision relating to suits for specific performance in Clause (x) (a) of Section 7 of the Court-f es Act must exclude the application of the more genera? provision relating to suits for possession in Clause O) of the said section.
4. This view is also supported by Nihal Singh v. Sewa Ram and Fakir Chand v. Ram Datt. In Madan Mohan Singh v. Gaja prosad Singh the Calcutta High Court took a different view; but there we find it merely stated, without any discussion of the principle, that a suit for specific performance is, in substance, a suit for possession. That decision wasfollowed in Rambahadur v. Banwari Lai by a single Judge. The only other case referred to in the Patna case is Deonandan Prasad Singh v. Janki Singh (1920) 5 P.L.J. 314 which cited Madan Mohan's case with approval. With all respect we are unable to agree with the decision of the High Courts of Calcutta and Patna.
5. We must, therefore, hold that it would be improper to regard this suit as a suit for possession of land within the meaning of Section 7(v) ; and in our opinion the view taken by the High Courts of Madras, Allahabad and Lahore in Sundara v. Sivalingam, Nihal Singhv. Sewa Ram and Fakir Chand v. Ram Datt is correct, viz. that a case of this nature falls under Section 7(x) (a) of the Court-fees Act.
6. The rule in both the applications will be discharged with costs. The costs will be separate in each case.
7. We find, however, that the trial Court, holding that it has no pecuniary jurisdiction to try the suit, has ordered that the; DistrictJudge be requested to transfer the suit to, the First Class Subordinate Judge's Court for presentation to the proper Court having jurisdiction. We think that the more appropriate, course would be to order that the plaint be returned for presentation to the Court having jurisdiction, and we direct that an order in these terms be substituted for the order passed by the learned trial Judge.
8. I agree. Considered apart from the authorities the position is very simple. The plaintiff is coming to the1'Court asking for possession. But he is not in the fortunate position of a person, who has a title on which he seeks possession. He lias no title and no Court will give him possession until he. has a title. If he does not ask the Court to help him in obtaining a title, the Court is bound to dismiss his suit out of hand. He must therefore ask for the title to be given to him, and the Court can do that only by granting him specific performance of the contract of sale. This being landed property, he cannot get title except by a registered document of sale, and the Court cannot give him a registered document of sale except by virtue of the agreement which he has had with the defendant. It follows as a matter of common sense that he must ask for specific performance because the Court will not go out of its way to give him specific performance unless he asks for it; and if he asks for it, and what he is asking for is not included in the reliefs for which he has already paid, he must pay again.But for the fact that the relief of possession for which he has paid would be included in a prayer for specific performance in the sense that specific performance of this particular contract would include not only the granting of a registered instrument but also the granting of possession (those being the two terms of the contract), he would have to pay both for specific performance and for possession. As it is he need pay only for specific performance, and he can be given credit for what he has already paid for possession.