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Parasnath Thakur Prasad Vs. Hari Narayan Tewari and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 46 of 1968
Judge
Reported inAIR1971All404
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9 and 115; Transfer of Property Act, 1882 - Sections 55(1)
AppellantParasnath Thakur Prasad
RespondentHari Narayan Tewari and ors.
Appellant AdvocateK.S. Verma, ;S.C. Mathur and ;Jaya Govil, Advs.
Respondent AdvocateM.M. Lal, Adv.
DispositionRevision dismissed
Excerpt:
.....- section 9 of code of civil procedure 1908 - contract to sell agricultural land and claim for specific performance can be combined - relief for compelling vendor to execute sale deed - relief for possession - civil court has jurisdiction. (ii) civil - minor - section 115 of code of civil procedure, 1908 - discretion exercised by court - party is minor on certain date - no revision maintainable. - - soundararaja aiyar, ilr 38 mad 698=(air 1914 mad 465) and pointed out that that was a ruling under order ii, rule 2 of the code of civil procedure and it was held there that the failure to ask for possession in the suit for specific performance did not bar a second suit for possession. and if the right to possession did not arise out of the same cause of action, it was wrong to say that..........j.1. this application in revision has been filed by one of the defendants to a suit for the specific performance of a contract of sale and also for possession. the applicant and opposite party no. 2 entered into a contract of sale of certain agricultural property in favour of opposite-party no. 1. subsequently, however, they executed a sale-deed in favour of opposite parties nos. 3 to 5. in the circumstances, opposite-party no. 1 filed a suit for specific performance of the contract of sale against the applicant and opposite-parties nos. 2 to 5. in the plaint as originally filed opposite party no. 1 claimed that he had been put in possession also of the property and only a sale-deed remained to be executed by the applicant and opposite-party no. 2 but they executed in favour of.....
Judgment:
ORDER

G.D. Sahgal, J.

1. This application in revision has been filed by one of the defendants to a suit for the specific performance of a contract of sale and also for possession. The applicant and Opposite Party No. 2 entered into a contract of sale of certain agricultural property in favour of opposite-party No. 1. Subsequently, however, they executed a sale-deed in favour of opposite parties Nos. 3 to 5. In the circumstances, opposite-party No. 1 filed a suit for specific performance of the contract of sale against the applicant and opposite-parties Nos. 2 to 5. In the plaint as originally filed opposite party No. 1 claimed that he had been put in possession also of the property and only a sale-deed remained to be executed by the applicant and opposite-party No. 2 but they executed in favour of Opposite-parties Nos. 3 to 5, after that contract in favour of opposite-party No. 1. Later on, however, a prayer was added in the alternative to the effect that in case the plaintiff-opposite-party No. 1 was not found in possession, possession be also delivered to him of the property in question.

2. Two preliminary points were raised before the learned trial Judge. The first was as to whether the property being agricultural property could a suit for possession be filed in the Civil Court where it had been filed? The Second point was that the defendant-opposite-party No. 2 being a minor on the date of the alleged contract of sale, tie contract could not be enforced as against him. Both the points were decided by the learned Civil Judge before whom the suit was filed, against the defendants who raised them and it is in these circumstances that one of the defendants has come up in revision before this Court.

3. So far as the question whether defendant No. 2 (Opposite-party No. 2 in this revision) was a minor on the date of the alleged contract of sale, is concerned, the learned Civil Judge had jurisdiction to decide it one way or the other and in deciding that he was not a minor he has neither exceeded his jurisdiction nor refused to exercise jurisdiction which he had and under Section 115 of the Code of Civil Procedure no revision is maintainable against that finding.

4. The other point raised is that the prayer in the plaint after the amendment consists of the applicant and opposite party No. 2 being compelled to execute the sale deed in favour of the plaintiff-opposite-party No. 1 and in the alternative if the plaintiff-opposite-party No. 1 was not found in possession of the property, to deliver possession of the same to him. So far as the prayer in the plaint for the execution of the document in favour of the plaintiff is concerned, it is not contended that such a relief can be granted by the revenue Court but it is contended that the relief for possession can be granted by the revenue court and the revenue court alone and as such the suit ought to have been dismissed so far as the prayer for delivery of possession, was concerned even though it was in the alternative, being allowed to be proceeded with only so far as the prayer for the applicant and opposite party No. 2 being compelled to execute the sale-deed was concerned.

5. The relief for the specific performance of a contract of sale, according to this contention, consists in the compelling of the vendor to execute the sale-deed only. It does not consist in compelling the vendor to deliver possession of the property also. Reference in that connection is made to Section 55(1)(f) of the Transfer of Property Act which provides that the seller is bound to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits. (The underlining is mine). Thus it is urged that the question of delivery of possession being given arises only when the vendee so requires from the vendor and as such it is not part and parcel of the contract of sale so as to be included in a relief for specific performance of contract. On the other hand, it is contended that the relief for specific performance of contract of sale includes relief for delivery of possession also in case the vendee so desires and as the relief for the specific performance of contract of sale, of which the relief for delivery of possession is a part, cannot be granted by a revenue court even though the property may be agricultural property, the civil court has jurisdiction to grant the relief, even though it may include the relief for delivery of possession over the property which relief, if it had stood alone, could be granted by the revenue court and revenue court alone.

6. What has, therefore, to be seen is as to whether the relief for possession in a suit for specific performance of contract of sale of immovable property along with the relief for the vendors to be compelled to execute the sale-deed arises out of the cause of action consisting of the contract of sale or is it a relief independent thereof and the question to get that relief arises only after the sale-deed has been executed?

7. This matter came up before the Madras High Court in Sundara Ramanujam Naidu v. Sivalingam Pillai, ILR 47 Mad 150 -- (AIR 1924 Mad 360) though in another connection. What came up for consideration in that case was as to whether a suit to compel the defendant to execute a sale-deed of a shop in pursuance of an agreement to sell was a suit for specific performance within Section 7, Clause x (a) of the Court-fees Act and did not become a suit for possession as described in Section 7, Clause v (e) by reason of the addition of a prayer for possession. It was held that it was a suit for specific performance within Section 7, Clause x (a) and not a suit for possession under Section 7, Clause v (e) of the Court-fees Act. The matter has been discussed separately by both the learned Judges who decided that case. Mr. Justice Krishnan pointed out that the relief by way of giving possession arises from the relief granting the execution and delivery of the sale-deed, as without a registered sale-deed, title cannot be transferred under the Transfer of Property Act where the value is over Rs. 100/-. Nevertheless both the rights, viz., the right to the sale-deed and the right to possession spring out of the same contract though one necessarily precedes the other. The delivery of possession is a part of the specific performance of a contract of sale unless the terms thereof show that the vendor was not under an obligation to deliver possession. The claim for delivery of possession is as much a part of specific performance as the claim for the payment of the price is, when the seller brings the suit for specific performance. He referred to form 47, 1st Schedule, Appendix A of the Civil Procedure Code and pointed out that a prayer for possession is a proper prayer in a suit for specific performance without altering the character of the suit. He then referred to an earlier authority of the same High Court, namely, Krishnammal v. Soundararaja Aiyar, ILR 38 Mad 698=(AIR 1914 Mad 465) and pointed out that that was a ruling under Order II, Rule 2 of the Code of Civil Procedure and it was held there that the failure to ask for possession in the suit for specific performance did not bar a second suit for possession. But he held that this ruling was against another ruling of the same High Court, though the point was not referred to a Full Bench. He, however, did not think it fit to settle this conflict of opinion as that ruling had no direct bearing on the case before him which was one under the Court-fees Act.

8. Mr. Justice Venkatasubba Rao pointed out that if the claim to possession is involved in the claim to specific performance, the suit will still remain one for specific performance and it must be dealt with only on that footing. He further pointed out that a suit for redemption is, in effect, a suit for possession of the property but can it be contended that the provision applicable to such a suit is not the one dealing with suits for redemption, Section 7, Clause (ix), but the one dealing with suits for possession, Section 7, Clause (v) He then says that he would not use the words 'principal' and ancillary, and points out that it was not strictly correct to say that, in a suit for specific performance of a contract, the execution of a conveyance was the principal relief and possession was secondary and ancillary. He further pointed out that it was indeed difficult to say in the abstract that a certain relief was the primary relief claimed and he preferred to rest his judgment on the ground that a suit for specific performance was, in its essence, different from a suit for possession, and the mere fact that possession was also claimed did not render the suit any the less a suit for specific performance. Reference was made by him to the other case, namely, ILR 38 Mad 698 = (AIR 1914 Mad 465) (supra) also wherein it has been held that a plaintiff, who had obtained in a previous suit a decree directing the defendant to execute a sale-deed, was not barred after obtaining the conveyance from instituting a fresh suit for the recovery of possession of the property covered by the conveyance. The argument advanced before him was that if a second suit for possession was not barred, it followed that, the right to possession did not arise out of the same cause of action; and if the right to possession did not arise out of the same cause of action, it was wrong to say that out of the same contract sprang both the rights -- the right to a sale-deed as well as the right to possession. But, as pointed out by him, this argument ignored the fundamental difference between a right to possession arising out of the contract to sell and the right to possession based upon the conveyance, a distinction also pointed out in the judgment of Sargent, C. J. in Nathu v. Bhudu, (1894) ILR 18 Bom 537. If a plaintiff claimed in the first suit only a conveyance and omitted to ask for possession, a second suit for possession based upon the agreement might fail; but if the claim to possession in the second suit was based upon the conveyance obtained in pursuance of the decree in the first suit, the cause of action in the second suit was entirely different and the first suit could not operate as a bar.

9. It would thus appear that though two separate suits could be brought one for compelling the vendor to execute the sale-deed and after the same had been executed, another for delivery of possession, the subsequent suit would not be on the same cause of action on which the first suit was brought, namely, for the specific performance of the contract of sale but would be on the basis of the conveyance obtained in pursuance of the decree in the first suit; while if the two claims were joined in one suit, the cause of action would be the contract to sell.

10. Agreeing respectfully with this reasoning, I am of opinion that the two reliefs could be combined in the plaint and the relief for possession being necessarily a relief out of the claim for the specific performance of contract, it cannot be successfully urged that such relief could only be claimed later after the conveyance had been executed in pursuance o the decree that may be obtained in the suit for specific performance of contract and as such it could be instituted in the revenue court only and not in the Civil Court, and as such the relief for possession even though it may have been claimed in the alternative should be dismissed.

11. I, therefore, hold that issue No. 8 has been rightly decided by the learned Civil Judge. The Civil Court had jurisdiction in the matter and the application in revision should be dismissed.

12. The application in revision is accordingly dismissed with costs. The case shall now proceed in accordance with law. The interim stay granted during the course of these proceedings is vacated.


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