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Jafar Mian S/O Sadaq Mian Vs. Smt. Qaiser Jahan Begum and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtAllahabad High Court
Decided On
Judge
Reported inAIR2007All5
AppellantJafar Mian S/O Sadaq Mian
RespondentSmt. Qaiser Jahan Begum and ors.
DispositionPetition dismissed
Cases ReferredBabu Lal v. Hazari Lal Klshorl Lal
Excerpt:
.....cannot be effectively granted to the decree-holder without specifically claiming relief for possession, viz. sub-clause (4) of section 28 of the act, clearly indicates that a relief of possession cannot be claimed by a separate suit......selling th share of the house in question. consequently, a suit no. 59 of 1988 was filed for the specific performance of the agreement. the said suit was decreed by a judgment dated 14.7.1992. an execution case no. 9 of 1992 was filed and, in this execution proceeding, a sale deed was executed by the court on 4.1.1994, which was ultimately registered on 13.5.1997.2. the decree-holder, respondent no. 1 filed a second execution application praying for the possession of the property in question. the petitioner, who is subsequent purchaser, filed an objection under section 47 of the code of civil procedure, which was rejected by an order dated 18.1.2005 by the executing court. the petitioner preferred a revision which was also dismissed by a judgment dated 31.5.2002. consequently, the writ.....
Judgment:
ORDER

Tarun Agarwala, J.

Smt. Farooq Zamani Begum, the owner of the property in dispute entered into an agreement of sale with Smt. Qaisar Jahan Begum, the plaintiff-respondent No. 1 for Rs. 1,42,000/-. Part payment was made and the sale deed was required to be executed within one month of the conclusion of the pending litigation in respect of the property in dispute. Instead of executing a sale d eed in favour of the plaintiff, Smt. Farooq Zamani Begum executed a sale deed in favour of the petitioner-Jafar Mian selling th share of the house In question. Consequently, a Suit No. 59 of 1988 was filed for the specific performance of the agreement. The said suit was decreed by a judgment dated 14.7.1992. An execution Case No. 9 of 1992 was filed and, in this execution proceeding, a sale deed was executed by the Court on 4.1.1994, which was ultimately registered on 13.5.1997.

2. The decree-holder, respondent No. 1 filed a second execution application praying for the possession of the property in question. The petitioner, who is subsequent purchaser, filed an objection under Section 47 of the Code of Civil Procedure, which was rejected by an order dated 18.1.2005 by the executing Court. The petitioner preferred a revision which was also dismissed by a judgment dated 31.5.2002. Consequently, the writ petition.

3. Heard Sri M.A. Siddiqui, the learned Counsel for the petitioner and Sri M. Islam, the learned Counsel appearing for respondent No. 1.

4. The sole point urged before this Court is, that the relief claimed by the decree-holder was outside the framework of the relief claimed by the plaintiff and, therefore, the prayer for the possession of the property could not be granted In view of Section 22 of the Specific Relief Act, and that a separate suit for possession was required to be filed by the decree-holder. It was urged that the executing Court acted in flagrant violation of the provisions of Section 22 of the Specific Relief Act in granting the relief for possession.

5. For facility, the provision of Section 22 of the Specific Relief Act, 1963 is quoted here-under:

22. Power to grant relief for possession, partition, refund of earnest money, etc.-

(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 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; or

b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or (made by) him, in case his claim for specific performance is refused.

(2) No relief under Clause (a) or Clause (b) of Sub-section (1) shall be granted by the Court unless it has been specifically claimed:

Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

(3) The power of the Court to grant relief under Clause (b) of Sub-section (1) shall be without prejudice to its powers to award compensation under Section 21.

6. From a perusal of the aforesaid provision, it is clear that Section 22 of the Specific Relief Act, 1963, enacts a rule of pleading. This section was introduced to avoid multiplicity of proceedings and, therefore, the plaintiff could also claim a decree for possession in a suit for specific performance, even though, the right to possession accrued only after the suit for specific performance was decreed.

7. The Supreme Court in Babu Lal v. Hazari Lal Klshorl Lal : [1982]3SCR94 has explained the provisions of Section 22 of the Specific Relief Act, and in particular the words 'In an appropriate case' the Supreme Court held-

13. The expression in Sub-section (2) of Section 22 'in an appropriate case' is very significant. The plaintiff may ask for the relief of possession or partition or separate possession 'in an appropriate case.' As pointed out earlier, in view of Order 2, Rule 2 of Civil Procedure Code some doubt was entertained whether the relief for specific performance and partition and possession could be combined in one suit; one view being that the cause of action for claiming relief for partition and possession could accrue to the plaintiff only after he acquired title to the property on the execution of a sale deed in his favour and since the relief for specific performance of the contract for sale was not based on the same cause of action as the relief for partition and possession, the two reliefs could not be combined in one suit. Similarly, a case may be visualised where after the contract between the plaintiff and the defendant the property passed in possession of a third person. A mere relief for specific performance of the contract of sale may not entitle the plaintiff to obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed for such a person is not bound by the contract sought to be enforced. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he is bound not only to execute the sale deed but also to put the property in possession of the decree-holder. This is in consonance with the provisions of Section 55(1) 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.

14. There may be circumstances in which a relief for possession cannot be effectively granted to the decree-holder without specifically claiming relief for possession, viz., where the property agreed to be conveyed is jointly held by the defendant with other persons. In such a case the plaintiff in order to obtain complete and effective relief must claim partition of the property and possession over the share of the defendant. It is in such cases that a relief for possession must be specifically pleaded.

The Supreme Court further held 'that the expression only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of the immovable property. That has to be done where the circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only in the execution of the sale deed but also possession over the property conveyed under the sale deed. It may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of the contract of sale. Besides, the proviso to Sub-section (2) of Section 22 provides for amendment of the plaint on such terms as may be just for including a claim for such relief 'at any stage of the proceedings.'

8. In view of the aforesaid, in a suit for specific performance of the contract for sale, even though no relief for possession is claimed and subsequently, a decree is passed, the Court executing the decree is, nonetheless, competent to deliver possession where it is found that the contesting party was in exclusive possession of the property. Further, the order directing the delivery of the possession is incidental to the execution of the sale deed in view of Section 55 of the Transfer of Property Act, which entitles a transferee to get the possession in pursuance of the sale deed.

9. Apart from the aforesaid, Section 28 of the Specific Relief Act provides a complete answer which reads as under:

28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.-(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and purchaser or lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.

(2) Where a contract is rescinded under Sub-section (1), the Court-

(a) shall direct the purchaser or lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and

(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract.

(3) If the purchaser of lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in Sub-section (1), the Court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate case all or any of the following relief, namely-

a) the execution of a proper conveyance or lease by the vendor or lessor;

b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease.

(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be.

(5) The costs of any proceedings under this section shall be in the discretion of the Court.

10. Section 28(3) of this Act contemplates that if the purchaser and lessee pays the money or other sum which is ordered to be paid under the decree, the Court may on the application made in the same suit award the purchaser, the delivery of possession. Sub-clause (4) of Section 28 of the Act, clearly indicates that a relief of possession cannot be claimed by a separate suit.

11. The judgment of the Supreme Court was again reiterated in another decision of the Supreme Court in P.C. Varghese v.. Devalki Amma Balambika Devi (2005) 8 SCC 486 : 2006 All LJ 284, wherein the Supreme Court held-

The said decree for partition, therefore, has attained finality. No decree for specific performance of contract, however, has been passed as against respondents 4 and 5. They are, however, otherwise bound by the decree passed by the learned trial Judge. Therefore, they are also proper parties, though not necessary parties.

Before parting with this case, however, we may observe that the manner in which the decree has been passed by the learned trial Court is open to question inasmuch as a relief in terms of Section 22 of the Specific Relief Act being incidental or ancillary to the main relief of specific performance of contract and, furthermore, being in addition thereto, ordinarily, a proceeding for grant of a final decree for partition should be initiated after the sale deed in terms of the decree for specific performance of contract is executed and registered and not vice versa.

12. In the present case, the petitioner, who is a subsequent purchaser was also made a defendant in the suit and the decree was also passed against him. In the written statement filed by the petitioner it was categorically stated that he was in the possession of the property in question. Consequently, once the Court executed a sale deed in favour of the decree-holder, the relief of possession, being incidental, could always be granted by the executing Court.

13. In view of the aforesaid, I do not find any error in the impugned order passed by the executing Court. The writ petition fails and is dismissed.


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