1. This is a suit for (a) specific performance of an agreement for sale of a property situate outside the jurisdiction of this Court, (b) leave under Order 2, Rule 2, Civil P. C. in respect of possession of the said premises, (c) decree for Rs. 30,000/- with interest thereon at 12 per cent, from 22-1-1948 until payment if title be not found good on such enquiry, (d) alternatively, for refund of Rs. 30,000/- with interest at the said rate and decree for Rs, 10,000/- as compensation, (e) leave under Order 2, Rule 2, Civil P. C. in respect of charge on the said property, (f) leave under Clause 12, Letters Patent, (g) Receiver, (h) injunction and (i) costs.
2. The plaintiff is the wife of one Maharaja Bahadur Singh Nahar. The original defendant was one Asoke Mitra who formerly worked as a solicitor of this Court and owned premises No. 43/1, Ramesh Mitra Road, Calcutta, situate outside the jurisdiction of this Court. The suit was filed in 1949. In 1951 the plaint was amended by the addition of a second defendant Surja Kumar Basak, who claims to have purchased the property from the said Asoke Mitra by a conveyance dated 8-12-1950 and also seeks to establish title as purchaser of the right, title and interest of Asoke Mitra in the said premises at an auction sale held by the Subordinate Judge, 1st Court, 24-Parganas on 15-6-1950.
3. On 22-1-1948 Asoke Mitra entered into an agreement for sale of the property to the plaintiff for Rs. 60,000/- out of which Rs. 30,000/- was payable forthwith as earnest money and/or part payment of the price, the balance being payable at the time of the completion of the purchase. The vendor covenanted to sell the property free from all encumbrances and subject to the approval of his title by the purchaser's solicitors. The sum of Rs. 30,000/- which was paid by the purchaser to the vendor on 22-1-1948 was to form a first and paramount charge on the said premises arid in case the purchase was not completed on any ground whatsoever, it was to carry interest at the rate of 12 per cent, per annum. The vendor further covenanted to deliver all documents of title of the said premises within 15 days from the date of the agreement and at his own expense, produce certified copies or abstract of or extract from documents and court proceedings which he might not have in his possession. The vendor was further to make out a good and marketable title at his own cost and the sale was to he completed within four months from the date of the agreement.
4. Clause 7 of the agreement provides that upon the approval of the title by the purchaser's lawyer, the vendor was to execute and register a proper deed of conveyance in favour of the purchaser or her nominee and the purchaser was to pay the balance of the purchase money on or before the date of the execution of the conveyance, the purchaser being further under an obligation to cause all necessary parties to join in the said conveyance.
5. Clause 8 of the agreement runs as follows: 'The said premises shall be sold free from all encumbrances and if there be any encumbrances outstanding on the date of the completion of the sale the same shall be cleared and released by the vendor at his own cost and shall pay all outstanding rent, rates and taxes and all outgoings in respect of the said premises upto the date of the completion of sale. Simultaneously with the execution of the conveyance the vendor shall give vacant and peaceful possession of the said premises to the purchaser or her nominee or nominees.'
6. Other clauses are not very material. In the matter of this agreement a pleader practising in the District Court of the 24-Parganas by the name of Ashutosh De was acting for the plaintiff and his signature appears on the agreement for sale as one of the attesting witnesses.
7. In the plaint as originally filed the plaintiff, after reciting the above agreement, went on to state in para 4 thereof that although the defendant Asoke Mitter had made over to her some documents of title in or about March 1949, he failed and neglected to produce the rest of the documents in spite of several requests. Requisitions on title were sent by the plaintiff's solicitors on 23-6-1949. These, however, were not answered. In para 6 there is an allegation that the plaintiff had always been and still was ready and willing to complete the purchase in accordance with the terms of the agreement. In para 7, the plaintiff asks for leave under Order 2, Rule 2, Civil P. C. in respect of possession of the premises.
8. In para 8 of the plaint the plaintiff claims refund of Rs. 30,000/- with interest at 12 per cent, from 22-1-1948, in case the Court did not direct specific performance of the agreement, in which case the plaintiff claims a further sum of Rs. 10,000/- as compensation.
9. Reliefs (a) and (b) claimed by the plaintiff in the plaint are as follows:
(a) An enquiry whether a good and marketable title can be made to the property comprised in the agreement in the plaint mentioned; and specific performance of the said agreement if title be found good on enquiry;
(b) Leave under Order 2, Rule 2, Civil P. C. in respect of possession of the said premises.
10. Asoke Mitter, defendant 1, filed his writtenstatement herein on 3-11-1949, denying that hehad agreed to sell premises No. 43/1, RameshMitter Road to the plaintiff as alleged or at all.He denied further that he had made over anydocuments of title in respect of the premises tothe plaintiff and his case was that the sum of Rs.30,000/- was given by way of loan on security ofthe said premises. He further disputed the plaintiff's right to ask for leave under Order 2, Rule 2 CivilP. C.
11. During the pendency of this suit defendant 2 -- Surjya Kumar Basak -- came to acquire an interest in the premises as mentioned already and the plaint was amended by an order of this Court dated 4-9-1951. In para 6(a) of the amended plaint, the plaintiff traces the title of defendant 2 and states that the acquisition by defendant 2 took place during the pendency of this suit. In para 6 (b) of the amended plaint, it is stated that the agreement for sale in favour of the plaintiff was by a registered document and defendant 2 being a transferee of the right, title and interest of defendant 1 with notice of the said agreement for sale, the acquisition of the interest in the property by him was subject to the plaintiff's right & further defendant 2 was holding and/or must hold the said property for the benefit of the plaintiff. By para 9 of the plaint the plaintiff asks for leave under Clause 12 of the Letters Patent inasmuch as the execution of the agreement being a part of the plaintiff's cause of action, took place within the jurisdiction of this Court.
12. The defendant Surra Kumar Basak filed his written statement on 5-6-1952 which was later amended by an order of this Court dated 7-9-1953. Defendant Basak did not admit the agreement for sale in favour of the plaintiff and stated that he had no knowledge thereof. In para 3(A) of his written statement the defendant denies that the plaintiff was at any material time ready and willing to complete the purchase in accordance with the terms of the agreement dated 22-1-1948, the defendant states further in para 4 of his written statement that on 8-9-1950, he had entered into an agreement with defendant 1 for the purchase of the said property free from all encumbrances at and for the price of Rs. 70,000/- and on the same day had made a payment of Rs. 15,000/- by way of earnest money. He had engaged one Dasharathi Shome, a solicitor of this Court, to investigate the title of the said premises and to complete the purchase on his behalf. Dasharathi Shome, according to Basak's written statement, fraudulently and in collusion with defendant 1 gave a certificate as to the title of the said premises and concealed from him that there was any subsisting encumbrance or charge or agreement affecting the said premises.
Further, Dasharathi Shome had prepared a draft conveyance which was approved by defendant 1 and in which there was no mention that the property was subject to any agreement. The said draft conveyance was engrossed and stamped and duly executed in the presence of the defendant Basak on 8-12-1950. At the time of the execution of the conveyance there was no mention in it that the conveyance in favour of Basak was subject to any agreement and Basak paid the balance of the consideration money, namely, Rs. 55,000/-. Basak in his written statement goes on to allege that the said Dasharathi Shome, fraudulently and in collusion with defendant 1, had made an interpolation in the original conveyance to the effect that the transfer was subject to the agreement dated 22-1-1948, of which Basak had no knowledge. After the conveyance in his favour Basak came to knew that the said premises had already been purchased by one Gobardhandas Sharma in execution sale held by the first Subordinate Judge, Alipore, in pursuance of a decree obtained by the said G. Sharma in Suit No. 160 of 1948 against defendant 1. He thereupon acquired the interest of Gobardhandas Sharma under the said decree as also in respect of the said premises by a deed of assignment dated 29-1-1951, for Rs. 6,300/-.
The sale of the said premises was confirmed on 21-3-1951, by the Alipore Court and the sale certificate was issued in favour of defendant Basak who was duly substituted in the place of the said Gobardhandas Sharma, and Basak thereafter obtained possession of the premises. By his written statement Basak further denies that the conveyance in his favour, namely, the document dated 8-12-1950, was executed expressly or at alt subject to the rights of the plaintiff under the said agreement for sale. He denies that his rights in the said premises are subject to those of the plaintiff under the said agreement for sale or that he was a transferee from defendant 1 with notice of the agreement for sale in favour of the plaintiff or that he was in any way bound by the said agreement or liable to convoy the property to the plaintiff. He denies also that he has acquired the said premises with any notice of the said agreement for sale dated 22-l-1948. He disputes the plaintiff's right to obtain leave under Order 2, Rule 2 and contends, that if the same had already been given, it should be revoked. The defendant took a further plea that this Court has no jurisdiction to try this suit.
13. The following issues were settled at the hearing of the suit:
1. Has this Court jurisdiction to try this suit?
2. Is the plaintiff entitled to leave under Order 2, Rule 2, Civil P. C.?
3. Was the plaintiff ready and willing to perform her part of the agreement for sale?
4. Is the plaintiff entitled to specific performance of the agreement for sale?
5. To what relief, if any, is the plaintiff entitled?
14. Various documents were disclosed by the parties and all such documents are to be found in 3 briefs marked Exts. A, B and 8. Asoke Mitter, defendant 1 did not contest the suit. As regards the documents in briefs marked Exts. A and B, they are all admitted by the contesting parties, The first document is a letter dated 7-1-1948 ad-dressed by Asoke Mitter to one Krishnalal Bose whereby Mitter authorises Bose to negotiate and secure a buyer for purchase of the premises at and for the price of Rs. 60,000/- the purchaser having to pay by way of earnest the sum of Rs. 30,000/-.
15. The next document is a letter by Asoke Mitter to Ashutosh De, pleader, acting for the plaintiff, dated 16-1-1948. Along with this letter the defendant Mitter sends the draft agreement with a draft affidavit prepared by him.
16. The affidavit which was subsequently affirmed, was to the effect that Mitter was the sole and absolute owner of the property No. 43/1, Ramesh Mitra Road containing by estimation an area of 5 cottahs, 1 chattak, 30 sq. ft. He further declares that the property was free from all encumbrances, attachment etc.
17. The next document is a letter dated 5-5-1949, written by Messrs. Nahar & Datta, solicitors for the plaintiff to Asoke Mitter calling upon him to send the outstanding documents of title without delay.
18. On 23-6-1949 Messrs. Nahar and Datta purported to send requisitions on title to Asoke Mitter. By further letters from the said firm of solicitors to Asoke Mitter dated July 4, 9 and 11, 1949 the solicitors were intimating Asoke Mitter that he had failed to return the requisitions on tide duly answered and they had no alternative but to publish a notice inviting information about the interest of third parties in newspapers and further informed him that a notice to that effect would appear in the Amrita Bazar Patrika on July 18.
19. Messrs. H. P. Dutt & Co. another firm of solicitors addressed a letter to Messrs. Nahar & Datta on July 19 pointing out that their client Sm. Jyotsna Rani Mitter, wife of the said Asoke Mitter, claimed right to the said premises and held the original title deeds thereof. Messrs. Nahar & Datta replied to this letter on 23-7-1949, saying that the documents of title were being held by the client of Messrs. H. P. Dutt & Co. fraudulently and in conspiracy with her husband. Along with the letter of 30-7-1949, Nahar & Datta purported to send the draft conveyance to Asoka Mitter in respect of the said property. Asoke Mitter evidently took no steps and on 4-8-1949 Nahar & Datta wrote again to Asoke Mitter informing, him that unless the draft conveyance was returned duly approved in the course of the day following their instruction was to take steps without further reference to him.
20. The above gives a summary of the documents disclosed on behalf of the plaintiff.
21. Ex. B contains 6 documents disclosed by the defendant Basak. The first is an agreement for sale dated 8-9-1950 between Basak and Asoke Mitter. By this document Mitter agreed to sell the property to Basak for Rs. 70,000/- free from encumbrances on receipt of Rs. 15,000/- by way of earnest money. Mitter further agreed to deliver to Basak's solicitor D. Shome all title deeds and documents relating to the said property for investigation and for approval on behalf of the purchaser,
22. The next document is a letter dated 30-9-1950, addressed by Dasarathi Shome to the defendant Basak. It reads as follows: 'I have caused searches to be made herein.
The Vendor has returned the Requisitions on Title duly answered by him and has approved the draft conveyance therein.
It appears the title of the Vendor to the above property is good and I am responsible if the title of the Vendor is not good. You can purchase the above property without any difficulty.' Along with this letter there is the draft conveyance of the property in favour of Basak as an enclosure.
23. Next comes the conveyance in favour of Basak dated 8-12-1950. The original of this conveyance is also an exhibit in this case. By this document Asoke Mitter sold the property to Basak for Rs. 70,000/-. The Habendum runs as follows: 'To have and to hold the hereditaments and premises hereby granted and covered or expressed or intended so to be and every part thereof unto and to the use of the purchaser, his heirs and assigns for ever but subject to the agreement dated 22-1-1948.'
The last portion of the above reading 'but subject to the agreement dated 22-1-1948' has been typed in between two lines and appears to have been inserted after the document had been typed out.
24. The next document is the original assignment stated 29-1-1951, by Gobordan Sharma to the defendant Basak. This document recites that the assignor has agreed to assign and the assignee has agreed to purchase the money decree in money execution case No. 45 of 1949 with all the rights and interest of the assignor thereunder for a consideration of Rs. 6,300/-. The original certificate of sale dated 28-3-1951, granted by the Subordinate Judge, First Court, Alipore, in money case No. 45 of 1949 is also exhibited in this case.
25. On behalf of the plaintiff the first witness examined was her husband Maharaj Bahadur Singh Nahar. He has verified the plaint as the constituted attorney of the plaintiff. He narrated how the agreement for sale had been entered into through the broker Krishnalal Bose. He said that the lawyer entrusted with this work was one Ashutosh De, who drew up the draft declaration to be signed by Asoke Mitter as well as the draft of the agreement for sale. The agreement for sale was executed in the office of Asoke Mitter in Hastings St. Mitter also made a declaration that he was the sole, owner-of the property 43/1, Romesh Mitra Road. Explaining the delay in the matter of the conveyance, which would have followed the sale, the witness said that he had considerable properties in Pakistan and he had to go there very often; as conditions in Pakistan were not very settled he could not come back to Calcutta immediately. But even during his short visits to Calcutta he used to demand of Asoke Mitter the documents of title. He said further that a year or more elapsed in the course of such demands. Ultimately he was given only a few documents. He said that when he found that he was not getting satisfaction from Asoke Mitter he put the matter in the hands of his solicitors Messrs. Nahar & Datta whose partner Mr. Nahar is his brother.
He said further that he gave instructions to the solicitors that they should take whatever steps they thought necessary in the matter of the purchase of the property. In cross-examination he said that he wanted the house and for that purpose a suit for specific performance had been instituted and he said that that was also the intention of his wife. He further said that he wanted vacant possession of the house. It was attempted to be shown during the cross-examination that he was not anxious to have this property and that is why there was inordinate delay in the matter of pressing his claim for conveyance. The witness explained it by saying that as the properties in Pakistan engaged his attention for a long time and he could not press his claim as much as he wanted to: even then whenever opportunities occurred he made demand of Asoke Mitter to complete the purchase. When he was asked as to how many title deeds were made over by him to Asoke Mitter he said he had seen the documents but he could not recollect what those documents were or how many of them were there. He admitted further that his wife never gave instruction to the solicitors Messrs, Nahar & Datta and that whatever instructions were given in this matter to the said firm of solicitors, were given by him alone.
His attention was drawn to several letters written by Nahar & Datta and he was asked as to whether instructions had been given to the firm of solicitors for writing these letters and his answer invariably was that he had given instructions to his brother only on one occasion to take all necessary steps in the matter. He was not prepared to admit that Surja Kumar Basak was in possession of the premises No. 43/1, Ramesh Mitra Road. It was suggested to him that his wife was not eager to have the property and would be glad to get back the money with interest as mentioned in the agreement for sale and his answer was that it was he who looked after all the interest of his wife and that his wife never expressed any separate wish of her own. He was shown a letter dated 25-7-1949 produced by Harendra Nath Das, Managing Clerk of Messrsr S. N. Mukherjee & Co. This letter would seem to show that if the sum of Rs. 30,000/- with interest at 12 per cent, was paid to the plaintiff, she would not insist on having a conveyance being executed in her favour in pursuance of the agreement dated 22-1-1948 and that she was prepared to execute a deed of release or any other necessary document in favour of Asoke Mitter. This letter is purported to he written by Ashutosh De, the pleader who had acted for the plaintiff in the matter of the preparation of the agreement for sale.
The witness was asked in Q. 159 as to whether he had given any instruction on behalf of his wife to Ashutosh De in July, 1949 regarding this property and his answer was in the negative. He was further asked in Q. 161 as to whether he had given instructions to Ashutosh Dey that upon receipt of the earnest money of Rs. 30,000/- with interest his wife would not insist on having a conveyance in terms of the agreement of January, 1948 and his answer again was in the negative. When he was shown the letter of 25-7-1949 mentioned above he said that the signature appeared to be that of Ashutosh Dey but he reiterated his contention that no such instruction had been given to Ashutosh Dey and that nobody other than himself could give instructions to this pleader. The plaintiff Bimal Kumari was examined on commission. She said that she had entrusted the matter of the purchase of the house to her husband. She was asked in examination-in-chief as to whether she had ever met any lawyer by the name of Ashutosh Dey and her answer was in the negative. She further denied having at any time, given any instruction to Ashutosh Dey personally. She also repelled the suggestion that in July, 1949 she was agreeable to give up the idea of purchasing the house.
In answers to Qs. 11 and 12 put to her, she reiterated her stand of having been ready and willing to complete the purchase. Her cross-examination clearly shows that she really took no interest in the matter but that everything was being done for her by her husband and she left everything including, the negotiations to her husband. She said that she had inspection of the house, 43/1, Ramesh Mitra Road, from the outside. She admitted that she had never enquired of her husband as to when the agreement would be completed and she would be able to take possession of the house. In answer to Order 39 put to her in cross-examination she said that she had no knowledge as to whether she had instituted a suit for specific performance of the agreement entered into on 22-1-1948. She explained this away in her answers to Qs. 40 and 41 by saying that she was purchasing the property but she looked to her husband to take such steps as he thought best, as she herself did not know much about these things.
26. On behalf of defendant 2 two witnesses were examined. The first was defendant 2 himself and the second, a person by the name of Sk. Samsul Huda. Basak said that Dasharathi Shome, a solicitor, was acting for him in the matter of the purchase of the property by him. He said that he had a draft conveyance prepared by his solicitor winch was accepted by him. He also proved the letter dated 30-9-1950 written by his solicitor certifying that the title to the property was clear and that there would be no difficulty in the way of getting possession. When he was shown the original conveyance of 8-12-1950 he said the words. 'But subject to agreement dated 22-1-1948' were not there when the document was first executed but that they had been interpolated later on. His explanation appears to be a perfectly genuine one and I have no doubt that these words 'But subject to agreement dated 22-1-1948' were interpolated by Dasharathi Shome in collusion with Asoke Mitra. But that would hardly affect the merits of the case. The witness stated that after the execution of the document he wanted possession of the property but when he went to take possession he found the gate locked and a durwan posted outside. He said that he ultimately got possession by an order of the Alipore Court. He also proved the assignment dated 29-1-1951 signed by Gobordhon Sharma. In answer to Q. 167 he said that he had never any notice about any agreement for sale in favour of the plaintiff prior to his purchase. He said that he had caused searches to be made before he took the conveyance in his favour but that all this was conducted on his behalf by Dashurathi Shome.
27. Shamsul Iluda, the next witness, who was a clerk of a pleader Robindra Nath Bhattacharjee practising in Alipore Judges Court, said that he was familiar with the handwriting of Ashutosh Dey, who also was a pleader practising in the same Court. He said that he knew Ashutosh Dey's handwriting and his signature and that he was still practising there. When he was shown the letter dated 25-7-1949 he said that it was in the handwriting of Ashutosh Dey and it bore his signature.
28. Arguing the case on behalf of the defendant Basak, Mr. Mukherjee submitted that this Court had no jurisdiction to try this suit inasmuch as the property was admittedly situate outside its jurisdiction and the agreement for sale involved delivery of possession. Referring to Clause 8 of the agreement for sale Mr. Mukherjee argued that if the vendor was required to perform specifically his obligation under the agreement, he not only had to deliver the documents of title and answer requisition on title hut on the title being approved he had to execute a document in favour of the purchaser and simultaneously with the execution of the document he had to deliver possession of the premises. There can be no doubt that if specific performance of the agreement is asked for simpliciter, possession is involved, and if the Court was to come to the conclusion that specific performance in this case could only be had by ordering delivery of possession, the suit would be a suit for a land and as such beyond the jurisdiction of this Court to adjudicate upon.
It was not disputed on behalf of the plaintiff that if possession was involved that would be the result; but Mr. Das arguing on behalf of the plaintiff contended that ordinarily in a suit for specific performance, possession is not asked for and in this case leave of the Court had been asked for with regard to the relief as to possession. He submitted that the question as to possession and as to rents and profits of the property would only arise when a good title was made out and a document executed in favour of the purchaser. He referred me to a passage from Scaton on Decrees and Orders, Edn. 3, p. 2157 in support of his contention mentioned above. He also drew my attention to the judgment of Das J. in the case of -- 'Khatun Bibi v. Lilabati Dassi', reported in AIR 1949 Cal 128 (A). In that case, by para 5 of the plaint the plaintiff claimed that the Court would order the defendant specifically to perform the agreement and to do all acts necessary to put the plaintiff in possession of the property. Referring to this paragraph of the plaint Das J. observed that
'the agreement itself provides for the purchaser taking possession of the lands. In this view of the matter this suit is not a suit for specific performance simpliciter but it is also a suit for possession of the lands which are outside the jurisdiction of this Court. In so far as it is a suit for possession it is a suit for land according to the meaning I put on that expression and therefore this Court has 'no jurisdiction to entertain this suit.'
Mr. Das contended that in the instant case possession has been specifically excluded and that the cause of action for possession would only arise after execution of conveyance and the passing of title. In support of this contention he cited the judgment in the case of -- 'Krishnammal v. M. Sundararaja Aiyar', AIR 1914 Mad 465 (B). The facts of this case shortly were that the plaintiff having obtained in a previous suit a decree-against the defendant for specific performance of an agreement to sell certain immovable property, had got a sale deed ,in his favour in execution of the decree. He then instituted a suit for the recovery of possession of the lands from the defendants. Both the learned Judges Sankaran Nair and Tyabji JJ. held that such a suit was not barred by the provisions of Order 2, Rule 2 and Tyabji J. observed at p. 468 of the report
'The plaintiff does not now sue for any right under the agreement to convey. In the previous suit he prayed for specific performance of the agreement; both the lower Courts have held that in the agreement there was no covenant on which the plaintiff could have sued for possession. Assuming (as was agreed before us) that the agreement gave the right of possession apart from the right to obtain a conveyance, still possession under the agreement could only be for the period prior to the conveyance, after which the purchasers' title would be completed, and he would then be entitled to possession not under the agreement but on the basis of his title. The plaintiff's failure to ask for possession in the previous suit might, therefore, have been fatal to any claim he might have set up in the present case under the agreement.'
Mr. Das also referred me to a judgment of the Allahabad High Court in the case of -- 'Arjun Singh v. Sahu Maharaj Narain', reported in : AIR1950All415 where it was held that
'where a person sues another for specific performance of an agreement to sell, and subsequently on the basis of the same agreement, sues for possession, the second suit would be barred by Order 2, Rule 2 but if the subsequent suit is based on the cause of action flowing from the conveyance obtained in pursuance of the decree in the first suit, it will not be barred by Order 2, Rule 2 because the cause of action for the second suit was quite distinct.'
If it he held that the plaintiff was within his rights not to ask for possession under the agreement, a contention which I shall consider later, and if he expressly excludes his right to possession under the agreement or abandons the said right, this Court would have jurisdiction to try the suit for specific performance. The decision of this issue, therefore, is subject to the decisions on other issues which will follow hereafter.
29. On the second issue it was contended by Mr. Das that Order 2, Rule 2, Sub-rule (3) has no application to the facts of this case, it being contended by him that the cause of action for specific performance was different from that of possession. Mr. Mukherjee drew my attention to several judgments including the case of AIR 1914 Mad 465 (B) and the cases reported in -- 'Rangayya Gounden v. Nanjappa Row', 28 Ind App 221 (D); -- Nathu v. Budhu', 19 Bom 537 (E); and -- 'Sunder Singh Mallah Singh, Sanatan Dharma High School, Trust v. Managing Committee, S. S. M. S. Rajput High School . If Mr. Das's contention be correct that the cause of action for possession is different from, that for specific performance nothing more need be said. But I find myself unable to accept his contention. The cause of action for possession on the agreement in this case is the same as the cause of action for the specific performance. On the same averments as those made in the plaint in this case the plaintiff would be entitled to ask for possession also. He need allege nothing further; he need not prove anything more. That this is so would appear from a judgment of Pal J. reported in the case of -- 'Sherali Mirdha v. Torapali : AIR1942Cal407 . The learned Judge observes at p. 410 of the Report:
'In my judgment this docs not mean that in order to apply Order 2, Rule 2 all the allegations made in the two plaints shall have to be taken and the bar imposed shall apply only when these are identical. The allegations are to be looked into only to find out to what extent they disclose any cause of action. In my opinion, cause of action for this purpose would mean all the essential facts constituting the right and its infringement. If the plaintiff obtained a judgment in his favour on a particular cause of action in the previous suit his claim in that suit must be taken to have been based on that cause of action, and that judgment ought to be conclusive as to the cause of action in respect of which that claim was made. In order then to see what is the cause of action in respect of which the claim in the subsequent suit is made and what is the' claim made in it we are to look to the plaint in the subsequent suit. If a certain allegation in the plaint discloses the self-same cause of action which could have supported the claim made in the plaint, then, simply because other additional allegations have also been made in it the plaintiff would not thereby escape the bar imposed by Order 2, Rule 2. If without the additional allegations in the second plaint, the cause of action for the claim made in it be complete, then in that case the additional allegations will not constitute the cause of action at all, and the Court after finding that will have to dismiss the claim under Order 2, Rule 2. If the additional allegations go to constitute a fresh cause of action for the claim made, then certainly the cause of action as alleged in the second plaint is different from the cause of action of the first plaint.'
If the plaintiff succeeds in this cause and a conveyance is executed in her favour by the defendants or by the Court, in the plaint which will follow in the suit for possession the same allegations would have to be made. On the agreement in suit the plaintiff' does not even have to make a demand for possession after the conveyance. Her claim to possession arises simultaneously with the execution of the conveyance. If she was to file a suit to embrace the relief as to possession in the first instance she would only have to state what she has stated in the present plaint and merely add a relief as to possession. The plaintiff in this case has omitted to sue for possession in order to get an adjudication by this Court and if the Court has any discretion in the matter, in order to avoid multiplicity of proceedings, leave should not be given in such a case under Order 2, Rule 2. If something more had to be done under the agreement before the plaintiff could get possession, then the cause of action for the suit for possession might have been different or there might at least have been some ground for the plaintiff not asking for possession; but in this case she seeks to keep the sword hanging on the defendants in respect of her claim to possession merely because she finds it impossible to obtain that relief in this Court. It might have been open to her to give up her right to possession under the agreement and she could have asked for it if and when the document was executed on the strength of that conveyance, but that is not a course which she has chosen to adopt. It may be that in that case there would be other difficulties in her way. However that may be, on the facts of this case I am not prepared to hold that the discretion of the Court should be exercised in favour of the plaintiff in giving leave under Order 2, Rule 2;
30. On the issues as to readiness and willingness of the plaintiff Mr. Mukherji, contended that there has been great delay in filing the suit and that the plaintiff seems to have taken no steps between January 22, 1943 and March 1949. Mr. Mukherji further wanted to rely on the letter dated 25-7-1949 which, in my view, was not proved. Merely proving the signature at the foot of a letter does not prove that the letter was actually sent out and on the facts, as pointed out by Mr. Das, I have no hesitation in coming to the conclusion that such a letter could not have been addressed on the instruction of the plaintiff. Undoubtedly there has been some delay in taking steps on the part of the plaintiff between January 22, 1948 and March 1949, but I see no reason to doubt the genuineness of her husband's explanation that he was busy with his affairs in Pakistan and could not devote much time to this matter and that although he came to Calcutta from time to time and met Asoke Mitter he did not get anything to his satisfaction. To my mind, there could be no doubt that the letter dated 25-7-1949, was never issued under the instruction of the plaintiff. In May 1949 Nahar & Datta entered on the scene on behalf of the plaintiff and they caused various letters to be written to Asoke Mitter in May, June and July 1949. On 23-7-1949, as I have already mentioned, Nahar & Datta addressed two letters one to H. P. Dutt & Co., and the other to Asoke Mitter. The letter to H. P. Dutt & Co. repels the idea of their client, namely, the wife of Asoke Mitter having any right -in the property and calls upon the said client to deliver the documents of title in her possession to them as solicitors for the plaintiff. The letter to Asoke Mitter reiterates this demand. Nahar & Datta addressed a further letter to Asoke Mitter reminding him that no reply had been received to the letter of the 23rd July. It would be strange conduct on the part of the plaintiff while she was having this matter dealt with by her solicitors Nahar & Datta, to have given instruction to her pleader Ashutosh DC at the same time to write a letter to Asoke Mitter to the effect that she was willing to give a go-by to the agreement if Asoke Mitter repaid the amount of Rs. 30,000/- with interest.
31. Maharaj Bahadur Singh stated that it was he who gave instruction to his brother, a partner of Messrs. Nahar & Datta and his wife the plaintiff gave evidence to the effect that she had left everything to her husband. I see no reason to disbelieve this testimony. Clearly a person who was pressing her claim for specific performance in the manner suggested by the letters of the solicitors from May 1949 onwards, would never think of causing a letter to be addressed to the vendor through her former pleader Ashutosh De in the way it is suggested in this case. Mr. Mukherji commented on the fact that Ashutosh De had not been called upon, but that is a criticism which could properly be levelled against his client. If it was true that Ashutosh De had written such a letter and the letter was in existence the easiest thing for the defendant to do in this case would have been to call Ashutosh De and confront him with this letter, a course which has not been adopted by the defendant.
32. Mr. Mukherji further contended that his client never had any notice of the agreement for sale and that I should hold that the recital of the agreement for sale in the document of December 1950 in favour of his client was surreptitious and had never come to his knowledge. As I have already pointed out, I am satisfied that there was ant interpolation in the conveyance of December 1950 but that, in my opinion makes no difference in this case. The agreement for sale was a registered document. The document not merely contained the agreement for sale hut it had created a charge in favour of the plaintiff and as such, was a document registrable under the provisions of Section 17, Registration Act, Mr. Das contended that the defendant Basak must be held to have had notice of this document' inasmuch as it was his duty to search the records of the Registration Department for encumbrances and if such searches had been properly made, he would have come across this document of charge which also embraced the agreement for sale, In support of this connection he drew my attention to Section 3, T. P. Act and the explanations to that section. Explanation I, so far as material for this case, reads as follows:
'Where any transaction relating to immovable, property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration .,........'.
33. Mr. Das contended that the defendant Basak must be deemed to have notice of the instrument creating the charge and through that of the agreement for sale contained therein. He also relied on explanation III which reads as follows:
'Explanation III: A person shall be deemed, to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud'.
Mr. Das contended that it must be held that the agent of Basak, namely, Dasarathi Shome, had notice of the agreement for sale and the proviso to explanation III does not help the defendant Basak inasmuch as the plaintiff was not a party to or otherwise cognizant of the fraud. I think there is no answer to this contention and it must be held that the defendant Basak, although he had no actual knowledge of the agreement for sale, was affixed with the notice thereof in favour of the plaintiff.
34. Mr. Das next drew my attention to Section 91, Trusts Act and contended that the defendant Basak's rights must be held to be subject to the rights of the plaintiff in this case. He referred me to several judgments in support of his contention and I need only mention one case cited by him, namely, the case of -- 'Veeraraghavayya v. Kamala Devi', reported in AIR 1935 Mad 193 (H), where it was held that where a purchase is subsequent to the attachment but the agreement, in pursuance of which the purchase is made, is prior to the attachment, the purchase prevails against the attachment. He also referred me to the judgments reported in -- 'Madan Mohan v. Rebati Mohan', AIR 1916 Cal 927 (I), and 'Venkata Reddy v. Yellappa Chetty', AIR 1917 Mad 4 (J).
35. After the conclusion of the argument in this case it occurred to me that the plaintiff's claim to specific performance as prayed for could not be allowed under the provisions of the Specific Relief Act, namely, Sections 14, 15, 16 and 17 of the Act. I invited further argument on this subject.
36. Mr. Sanyal leading, Mr. Das contended first that the contract, viz., the agreement dated 22-1-1948 was divisible and could be divided into several parts; one of such parts, he argued, related to the charge created in favour of the plaintiff and had nothing to do with the agreement for sale and as such could be separated from it. He said that the plaintiff was not seeking to enforce the agreement with regard to this charge and I should hold that the claim to possession was also one of such divisible parts, Unfortunately, I find I cannot agree with him. The claim to possession forms, in my opinion, an integral part of the agreement to sell. The vendor is under an obligation to hand over documents of title in his possession and do all that is necessary to make out a good title and when such title is approved of and the conveyance is tendered to him for execution he has to execute the conveyance and simultaneously therewith deliver possession to the purchaser. As I have already mentioned, after the execution of the conveyance there is nothing else which the purchaser is called upon to do, i.e. he is not ever called upon to demand possession. The two obligations which the vendor is bound to discharge, arise at one and the same time, viz., to execute the conveyance and to deliver possession. It was suggested that the case was covered by Section 16, Specific Relief Act, inasmuch as it should be held that a part of the contract, viz., that relating to delivery of possession stood on a separate and independent footing from the other parts of the contract, viz., that relating to the execution of the conveyance. Mr. Sanyal contended that the two parts stood on different footings inasmuch as possession was a thing which could not be ordered to be given by this Court, but that is clearly not what Section 16 was aming at. If one of the parties files a suit in a Court which is not competent to grant him one of the reliefs he is entitled to, he cannot be heard to say that that part of the contract is one which cannot and ought not to be specifically performed. The ability or inability to perform the contract referred to in Section 16, Specific Relief Act clearly relates to the parties to the suit and has no connection with the jurisdiction of the Court to grant a particular relief. Mr. Sanyal further contended that the provisions of the Civil Procedure Code show that in a suit for specific performance of a contract, possession is not ordinarily one of the reliefs to be given and he drew my attention to the provisions of Order 21 Rule 32 (5).
According to Mr. Sanyal Order 21, Rule 32(5) shows that when a decree for specific performance of a contract is not obeyed, the Court may direct that the act required to be done may be done so far as practicable by the decree-holder or some other person appointed by the Court. Mr. Sanyal argued that so far as possession was concerned this rule could not be availed of and the provision applicable to the case of a decree for delivery of possession was that contained in Order 21, Rule 35. This argument however, to my mind proceeds upon a fallacious reasoning. If the plaintiff asks the Court to give a decree which is not a decree for specific performance simpliciter but for possession as well, the rights of the parties cannot be governed by the provisions of Order 21, Rule 32 or Order 21 Rule 35. In a case like this the decree would have to be drawn up in such a manner that both of these rules could be availed of, if necessary.
37. Mr. Mukherji arguing on behalf of the defendant Basak drew my attention to the judgment an -- 'William Graham v. Krishna Chandra Dey', reported in , where their Lord ships pointed out
'Sections 14 to 17 inclusive of the Specific Relief Act, 1877, are both positive and negative in their form. Taken together they constitute a complete code, within the terms of which relief of the character in question must be brought, if it is to be granted at all.'
There has been no argument that Sections 14 and 15, Specific Relief - Act have any application to the facts of this case. As I have already pointed out, I am not able to accede to Mr. Sanyal's argument on the interpretation of Section 16. That being so, clearly Section 17 is applicable. As I have already pointed out, there can be no doubt that the obligation to deliver possession is an integral part of the agreement for sale, and the cause of action for possession is not different from the cause of action for specific performance in this case. If, therefore, the plaintiff asks for specific performance, as she has done, she cannot have it unless she complies with the provisions of Section 17, Specific Relief Act and she cannot do so, if she seeks to exclude her claim to possession.
38. In view of the above the answers to the issues are as follows :
Issue No. 1; The claim to specific performance in this case involves a claim to possession and therefore I must hold that the Court has no jurisdiction to try this suit.
Issue No. 2 : I hold that in a case like this the plaintiff ought not to be given leave under Order 2, Rule 2, Civil P. C.
Issue No. 3:: I hold that the plaintiff was all along ready and willing to perform her part of the agreement for sale.
Issue No. 4 : The plaintiff is not entitled to specific performance of the agreement for sale.
Issue No. 5: The suit, must therefore, be dismissed with costs. Certified for two Counsel.
It should however be noted that the plaintiff onlypressed her claim to specific performance of theagreement in this case and her claim to a decreefor Rs. 30,000/- with interest or alternatively forrefund of the said amount, was only incidental tothat claim and to be pressed in case the Court cameto the conclusion that the case was not a fit onefor the grant of specific performance or in casethe title to the property was found to be defective.This adjudication, therefore, is not to prejudicein any way, her right to enforce the charge createdby the agreement dated 22-1-1948.