Lallubhai Shah, Kt., Acting C.J.
1. The facts which have given rise to this Krishnaji appeal are briefly these. On October 20, 1918, the present defendants Nos. 3 and 4 agreed to sell the house in question to the present plaintiff for Rs. 850. On October 25, 1918, they in fact sold it to the present defendant No 1 for Rs. 900. The plaintiff filed Suit No. 358 of 1918 against the present defendant No. 1 and present defendants Nos. 3 and 4 for specific performance and damages arising out of the breach of the said contract dated October 20, 1918. It appears that the plaintiff made a claim for possession of the property also. The judgment in that suit shows that the principal point raised was whether defendant No 1 had notice of the contract between the plaintiff and the owners of the house. It was found that defendant No. 1 bought from the owners with notice of the previous contract with the plaintiff and in the result the following decree was passed :-' On payment of Rs. 825 by plaintiff, defendant No. 3 must execute a conveyance of the suit shop to plaintiff.'
2. We are informed that there was an appeal from this judgment, and there was also a second appeal, but the proceedings relating to the appeal and the second appeal have not been put in, and it may be taken that the decree passed in the suit, to which we have referred, was affirmed.
3. Apparently after this the plaintiff obtained possession of a part of the shop in question, and the present suit was filed by the plaintiff in December 1920 for possession of the rest of the shop from defendant No. 1, who was in possession, and defendants Nos. 2, 3 and 4 were joined as parties, defendant No. 2 being a tenant of defendant No. 1, and defendants Nos. 3 and 4 being the original owners of the property.
4. The defence raised on behalf of defendant No. 1 was that the claim for possession was barred by the provisions of Section 11 of the Civil Procedure Code. The trial Court disallowed this contention and passed a decree for possession against defendant No 1.
5. Defendant No. 1 appealed to the District Court, but the learned District Judge accepted the conclusion of the trial Court on this point, and confirmed the decree of the trial Court.
6. In the appeal before us by defendant No. 1, two points have been raised in support of the plea that the present suit is barred by the provisions of Section 11 of the Code. First, it was urged that it was obligatory upon the plaintiff to make a claim for possession in the previous suit for specific performance, and, quite apart from the question whether a claim was made or not, a second suit for possession on the same contract cannot lie. In support of this argument reliance is placed upon Explanation IV to Section 11. This contention, however, is opposed to the decision of this Court in Nathu v. Budhua I. L. R. (1893) 18 Bom. 537. It is true that a different view has been taken in Narayana Kavirayan v. Kandasami Gowndan I. L. R. (1898) Mad. 24. But the correctness of that view has been doubted in Krishnammal v. Soundararaja Aiyar I. L. R. (1913) Mad. 698. It is not necessary to deal with this point at any length. It is enough to point out that the view of this Court in Nathu v. Budhu was that though a claim for possession might be made, it was not obligatory upon the plaintiff to make a claim for possession in the suit for specific performance, Apart from decisions, on principle that view appears to be correct. Under Section 54 of the Transfer of Property Act, the contract for sale of immoveable property of itself creates no interest or charge upon the immoveable property, and until the claim for specific performance was decreed in favour of the plaintiff it could not be said that he was entitled to possession, though for the sake of convenience, and to avoid multiplicity of suits, it might be open to the plaintiff to make a claim for possession in the same suit.
7. It is further urged, however, that in the present case a claim for possession was made in fact, and that, under Explanation V to Section 11, this relief claimed in the plaint, and not expressly granted by the decree, should be deemed to have been refused for the purposes of Section 11. Though there is no reference in the judgment to this claim, it appears from the decree that in the original plaint a claim for possession was made. It must be taken that the claim for possession was refused. Still the question remains whether the question of possession was heard and finally decided within the meaning of Section 11. In determining whether the issue relating to possession was heard and finally decided by the Court in Suit No. 358 of 1918, it must be remembered that there is no reference whatever to the claim for possession in the judgment. There is no reference to it even in the summary of the plaint given in the judgment, and from the issues it is quite clear that no attention whatever was paid to this relief. We do not know what happened during the course of the hearing whether by common consent a claim for possession was dropped as being unnecessary in that suit, or whether the trial Court did not say anything with reference to that claim, because it thought that there was no need to deal with that question in that suit. It is clear that, having regard Sahoatpa to the view which the trial Court took with regard to the rights Shah Ag. C.J. of the parties to the decree which it passed with regard to specific performance, that Court could not have meant to refuse the claim for possession finally. Such a conclusion would be obviously inconsistent with the considered conclusion reached by the trial Court with reference to the plaintiff's right to specific performance. In the absence of any indication in the judgment as to how this point was dealt with, if it was dealt with at all, and in the absence of any indication as to whether the parties by any purshis or otherwise practically agreed to leave the question as to possession out of the suit, the only reasonable inference under the circumstances is that it was not considered necessary to deal with the claim as to possession in that suit. That is the only basis upon which the absence of any reference in the judgment or the decree to the claim for possession can be intelligibly explained. It cannot be explained on the footing that the matter as to possession was heard and finally decided within the meaning of Section 11 of the Code. Though the claim for possession was made in the plaint, and though there is no reference to it in the judgment or the decree, it must be deemed to have been refused, still the claim as to possession cannot be said to have been heard and finally decided in that suit within the meaning of Section 11 of the Code. Therefore there is no bar of res judicata as suggested by the appellant. The result is that the decree of the lower appellate Court is confirmed and the appeal dismissed with costs.