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Tanubai Widow of Maruti Niprul Vs. Ramchandra Pandurang Kadam and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCivil Appeal No. 119 of 1981
Judge
Reported in1984(2)BomCR375
ActsCode of Civil Procedure (CPC), 1908 - Order 2, Rule 2 and 3; Specific Relief Act, 1963 - Sections 22; Transfer of Property Act, 1882 - Sections 45
AppellantTanubai Widow of Maruti Niprul
RespondentRamchandra Pandurang Kadam and anr.
Appellant AdvocateR.T. Walawalkar and ;Narendra V. Walawalkar, Advs.
Respondent AdvocateG.I. Damie and ;H.D. Gole, Advs.
DispositionAppeal dismissed
Excerpt:
.....section 22 of specific relief act, 1963 and section 45 of transfer of property act, 1882 - whether suit for possession barred by order 2 rule 2 - in first suit plaintiff restricted to claim for specific performance - relief of possession on basis of re-conveyance deed not pressed - order 2 rule 2 had no application in case subsequent suit based on distinct cause of action - held, suit for possession not barred by order 2 rule 2. - - the cause of action arises, in a suit for specific performance, on the date when the agreement of sale is execute but as is well known, the agreement of sale creates no interest in the land. in that case the defendant having agreed to sell the land to the plaintiff failed to execute a conveyance whereupon the plaintiff sued for specific performance and..........the appellant (hereafter the defendant).2. the relevant facts are very few. on 13-7-1967, the suit property was sold by the plaintiff to the defendant and the possession of the same was handed over to him. on the same day an agreement of reconveyance was executed by the defendant in favour of the plaintiff agreeing to reconvey the property to the plaintiff provided the amount mentioned in the agreement of reconveyance was paid within the stipulated period. the defendant however refused to honour the obligation and hence civil suit no. 296/1967 was filed by the plaintiff against defendant for specific performance of the said agreement of reconveyance. in the suit, initially, two-fold prayer was made. firstly, specific performance was asked for and secondly possession of the property.....
Judgment:

Sharad Manohar, J.

1. The question involved in this appeal is very short one. The question is as to what is the effect of the provisions of Order II, Rule 2 of the Civil Procedure Code upon the suit for possession filed by respondent No. 1 (hereafter the plaintiff) against the appellant (hereafter the defendant).

2. The relevant facts are very few. On 13-7-1967, the suit property was sold by the plaintiff to the defendant and the possession of the same was handed over to him. On the same day an agreement of reconveyance was executed by the defendant in favour of the plaintiff agreeing to reconvey the property to the plaintiff provided the amount mentioned in the agreement of reconveyance was paid within the stipulated period. The defendant however refused to honour the obligation and hence Civil Suit No. 296/1967 was filed by the plaintiff against defendant for specific performance of the said agreement of reconveyance. In the suit, initially, two-fold prayer was made. Firstly, specific performance was asked for and secondly possession of the property was also prayed for. It appears that the Court raised certain objections relating to the relief of possession and hence a purshis, Exhibit - 74, was filed on behalf of the plaintiff stating that he was restricting the suit only to the claim of specific performance and that he would file a separate suit for possession of the property.

3. The suit was thereafter heard and decided and a decree for specific performance was passed in favour of the plaintiff. The decree also specifically provided that the plaintiff would be at liberty to file a fresh suit for possession on the strength of reconveyance deed which he would be getting upon execution of the decree. It is common ground that this decree has now become final.

The plaintiff got executed the decree through the Court and sale deed came to be duly executed in his favour. Thereafter the plaintiff filed a second suit, that is to say, the instant suit out of which the present appeal arises, for possession of the suit property. Apart from the various other pleas, the main plea that was urged by way of defence of the suit was that the same was barred by the provisions of Order II, Rule 2, of the Civil Procedure Code. The trial Court was persuaded to accept the plea and hence, the trial Court dismissed the plaintiff's suit. The Appellate Court, however found it impossible to see anything in the provisions of Order II, Rule 2 having the effect of barring the present suit. Since no other defence urged by the defendant was acceptable to the Court and since this plea was negatived by the Appellate Court the appeal was allowed and the plaintiff's suit was decreed by the Appellate Court. The present second appeal is directed against that view taken by the Appellate Court.

4. To my mind, the plea raised by the defendant is wholly unmerited. Order II, Rule 2 itself leaves no room for doubt that when the plaintiff's second plea is based upon different cause of action, the provisions of Order II, Rule 2 do not came into play at all. Just a mere glance at the Order II, Rule 2 is enough to clarify this position. Order II, Rule 2(1) which is the relevant provision reads as follows :

'Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action : but the plaintiff any relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.'

It is true that under Order II, Rule 3 of the Civil Procedure Code the plaintiff may join as many cause of action as he wants against the same defendant or against some defendant jointly subject to the condition laid down in the said order; but that is after all an enabling provision. The Court does not injunct the plaintiff that he must join all the cause of action available for him as against the defendant in one and the same suit.

5. Moreover, in a suit for specific performance of agreement of sale it can be safely said that a cause of action for possession is in fact a contingent cause of action and an independent cause of action. The cause of action arises, in a suit for specific performance, on the date when the agreement of sale is execute but as is well known, the agreement of sale creates no interest in the land. This means that the agreement of sale, ipso facto, does not give rise to the cause of action for a suit for possession on the date of the agreement of sale. The cause of action for a suit for possession arises when there is a sale deed in favour of the plaintiff. In other words the right to possession stems from the sale deed, not from the agreement of sale.

It is true that there may be and there are certain species agreement by virtue of which the right of possession accrues to the purchase immediately upon the execution of the agreement itself when the purchaser is not required to wait until the execution of the sale deed for the purpose of getting into possession of the land. But in the absence of any specific clause in the agreement of sale to that effect, it cannot be argued by either by the intending purchaser or by the intending vendor, that the cause of action for possession accrued in favour of the purchaser simultaneously with the execution of the agreement.

6. This is the position of substantive law relating to the rights stemming from the agreement of sale of immovable property. The position in the instant case, therefore, was that on 13-7-1963 when the agreement of reconveyance was executed by the defendant in favour of the plaintiff, the plaintiff had no right for possession at all. The right for possession accrued to him, in the instant case, only after he got the sale deed from the defendants through the Court. On the date when he filed the suit for specific performance, therefore, he had no cause of action as such for filing the suit for possession at all. He may be having a contingent cause of action. He may be having even certainty about the future cause of action; but actual cause of action he had none. The right of the plaintiff to ask for simultaneous relief of specific performance and possession in the case of suit for specific performance stems from section 22 of the Specific Reliefs Act. The relevant provision of the said section is as follows :---

'22. (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property, may, in an appropriate case, ask for---

(a) possession, or partition and separate possession, of the property, in addition to such performance.'

I may go even to the extent of stating that even in the absence of this provision similar situation could have been spelt out by virtue of the provisions of Order II, Rule 3 of the Civil Procedure Code because the whole claim referred to by Order II, Rule 3 of the Code may conceivably include even the future but intertwined cause of action. I make it clear that I express no final opinion on this point; but I only went to state that this may be a likely position. The point, however, remains that the cause of action for suit for possession and cause of action for suit for specific performance are two independent causes of action in the case of an agreement such as the present one. If that is the position, then there is no scope for reliance upon Order II, Rule 2 of the Code for the purpose of contending that the present suit is barred by virtue of that provision. Order II, Rule 2 makes it clear beyond doubt that if the subsequent suit is on different cause of action then Order II, Rule 2 has no part to play vis-a-vis this subsequent suit. The plea based upon the said provision of Order II, Rule 2 is, therefore, wholly misconceived.

7. Mr. Gole appearing for the plaintiff, however, invited my attention to two other significant circumstances. The first one is the purshis filed by the plaintiff in the earlier suit which is produced at Exhibit 74 in the present suit, that is the purshis dated 29-9-1969 in the Regular Civil Suit No. 296/67. The purshis, while stating that the plaintiff did not want to press with the claim for possession, specifically stated that the cause of action for claiming possession of the suit property would arise only after the sale deed was executed in favour of the plaintiff. If was on that count that the prayer for possession was not prosecuted by the plaintiff.

The second circumstance is the observation in the decree dated 13-9-1969 itself. The final para of the decree states as follows:---

'The plaintiff has not pressed for the relief of the possession in this suit and will be at liberty to file a fresh suit for possession on the strength of the reconveyance deed which he will get in the execution of this decree.'

Relying upon this observation contained in the decree itself, the Counsel rightly placed reliance upon the provisions of Order II, Rule 3 of the Code under which it is open for the plaintiff to obtain leave from the Court to file a suit even for the relief which he has left out in the earlier suit. This could be done by the plaintiff even in respect of the reliefs arising out the same cause of action. If such relief is granted by the Court allowing the plaintiff to ask such additional reliefs by recourse to a separate suit, then such separate suit cannot be said to be barred by any part of the provisions of Order II, Rule 2 of the Code. In the instant case such relief is specifically granted to the plaintiff. If, therefore, beats understanding as to how the provisions of Order II, Rule 2 would operate as bar to the present suit as was held by the trial Court.

8. Reliance was sough to be placed by Mr. Walawalkar on the judgment of the Madras High Court reported in 1889, Vol. XXII, The Indian Law Report Madras Series, page 24 in the case of Narayan Kavirayan v. Kandaswani Gounden. In that case the defendant having agreed to sell the land to the plaintiff failed to execute a conveyance whereupon the plaintiff sued for specific performance and obtained a decree for specific performance. He even got the conveyance executed in his favour through the machinery of the Court. After getting the sale deed he sued for possession. The Madras High Court held that the second suit was barred.

9. To my mind the reliance upon this authority is misplaced. In the first place it appears that in the agreement of sale in that suit there was a provision that the intending purchaser would get possession of the property by virtue of the agreement itself. This might have been so on account of two reasons. Firstly it might have been so, because there was a clause in the agreement itself entitling the intending purchaser to enter into possession upon the execution of the agreement without requiring to wait until the execution of the conveyance. Secondly, it is possible that the right to possession was held by the Court to be resulting from the agreement of sale. As is well known, before the Transfer of Property (Amended) Act, 1929, judicial opinion was at variance on the question as to whether an agreement of sale itself created anything interest in favour of the intending purchase. The view taken by the Madras High Court appears to be the logical conclusion of the legal position, which was admitted in that case, viz. that the contract of sale created a right for possession in favour of the intending purchaser. If that was the position of law as was decided by the Court at that time, then the cause of action for possession arose by virtue of agreement of sale itself. The agreement of sale, therefore, gave rise, in the case, to two cause of action at one and the same time---

(a) the right for specific performance ;

(b) right for possession ;

or, rather, it could be said that by virtue of the agreement of sale the plaintiff became entitled to two-fold reliefs on the same cause of action ; the two reliefs being---

(a) for specific performance ;

(b) for possession.

It was in the context of this legal and factual position that the Court had held that the subsequent suit was barred by the principles analogous to the principles contained in the present provision of Order II, Rule 2 of the Civil Procedure Code. It is well known that the said change was brought about in the law in the year 1929. Section 54 of the Transfer of Property Act was amended and it was specifically provided by the Amended Act that the agreement of sale would not create any interest in the land in favour of the intending purchaser. In view of this statutory change, the decision of the Madras High Court based upon the unamended Transfer of Property Act has no application for finding out the correct legal position as at present.

The next authority relied upon by Mr. Walawalkar is the judgment of the Patna High Court, in the case of Deonandan Prasad Singh v. Janki Singh and others, reported in A.I.R. 1920, Pat 89. But the position is no way different in the case decided by the Patna High Court. In that case also the Court proceeded upon the assumption that the agreement of sale itself created an interest in favour of the intending purchaser and it was held that the right for possession stems from the agreement itself. If that was the legal position, then it might have been incumbent upon the present plaintiff to ask for possession of the property in the first suit itself, because the cause of action had been already engendered in his favour simultaneously with the cause of action for suit for specific performance. But it cannot be disputed and it is not disputed before me that the law reform brought about by the amendment of the Transfer of Property Act in the year 1929 brings about basic change in the legal position. It cannot be said in the absence of a contract to the contrary, that the agreement of sale itself created any interest in favour of the intending purchaser or that the intending purchaser become entitled to possession of the immovable property, by virtue of the agreement of sale ipso facto. The judgment of the Patna High Court, therefore, cannot be said to be good law any more, having regard to the change in law brought by the statutory amendment.

10. Moreover, this question is no longer res integra. A series of authorities makes it clear that Order II, Rule 2 has no application where the subsequent suit is based upon a distinct cause of action. In this connection one may fruitfully refer to Sir Dinshaw Mulla's Commentary on Order II, Rule 2 of the Code. In particular, illustration No. 424, para 7 of the Commentary on Order II, Rule 2 of the Code would make the position clear beyond pale of doubt. This is what illustration No. 4 states :

'(4) A sues B for specific performance of a contract to sell land and obtains a decree directing B to execute the conveyance and the conveyance is executed. On the basis of the self-same contract A thereafter sues B for possession of the land. The second suit is barred under Order II Rule 2. If, however, the contract for sale did to provide for A being put in possession by B, and so the second suit for possession is based on the cause of action following from the conveyance of title as a result of the execution of the sale deed, it would not be barred under this rule Arjun Singh v. Sahu Maharah Narain (1950) A.L.J. 296. That has been held by the Madras High Court in Krishnamal v. Sundarraja Aiyer 38 Mad. 698 : (1914)A.M. 465 and by the Calcutta High Court in Debendra Nath v. Southern Bank Ltd. : AIR1960Cal626 '

11. It may be noted that the above view is taken not only by the Calcutta High Court but also by the Madras High Court and evidently that view is at variance with the earlier view taken by the same Court in the year 1989. This variation in the view evidently results from the fact that the question as to whether the agreement of sale gave rise to any right in favour of intending purchaser for possession of the property was set at rest by the 1929 amendment in the Transfer of Property Act. By virtue of the amendment the Madras High Court had to take the view that the agreement of sale did not itself create any interest in the property and hence it becomes incumbent upon the Court to hold that in the earlier suit for specific performance relief for possession need not have been asked for.

Mr. Walawalkar also contended that the suit was barred on account of non-joinder of the parties. I fail to see any justification for this contention. Moreover, I see no reason why such a technical plea should be allowed at this stage.

12. Having regard to all these circumstances, the appeal fails and the same is dismissed with costs.

In view of the above order, Civil Application No. 4366 of 1983 and Civil Application No. 2740 of 1983 do not survive.


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