GOPALAKRISHNAN v. SAROJINI — 1985 DIGILAW 247 (KER)

Judgment :- 1. The plaintiff in O. S. No. 14 of 1976, Subordinate Judge's Court, Parur is the appellant. Defendants 2 and 3 in the suit are the respondents in this appeal. Ext. Al agreement dated 4-5-1974 was entered into between the plaintiff and the 1st defendant to sell the plaint property, an extent of 40 cents of land together with the building and the trees standing thereon. The 2nd defendant was formerly the wife of the Ist defendant. She was divorced as per order of the court. The 3rd defendant is the daughter of the 2nd defendant born to her by the 1st defendant. The 1st defendant conceded that he is prepared to execute the sale-deed on receipt of the balance of consideration due, Rs. 2,390/-, out of Rs. 8,000/- Defendants 2 and 3 contested the suit. They contended that the 1st defendant had no capacity to enter into an agreement (Ext. Al); that defendants 2 and 3 had a charge over the plaint property as per the decree in O. S. No. 582 of 1970 and that at any rate they are residing in the plaint property and are entitled to kudikidappu right. The trial court found that defendants 2 and 3, strangers to Ext. Al contract, have no right over the property and are incompetent to question the dealings of the 1st defendant. It was also found that defendants 2 and 3 failed to substantiate that there was any charge as per the decree in O. S. No. 582 of 1970. The plea of kudikidappu was referred to the Land Tribunal. The Tribunal held that defendants 2 and 3 have no kudikidappu right. That was adopted by the trial court (Subordinate Judge, Parur). The suit was decreed. A decree for specific performance of Exhibit Al was passed. The 1st defendant was directed to put the plaintiff in possession of the plaint property. In default, it was held that the plaintiff will be put in possession of the property and building through court after evicting the defendants. 2. From the judgment of the Subordinate Judge, Parur dated 28-1-1980, defendants 2 and 3 filed A. S. No. 191 of 1980 before the District Court, Parur. From a reading of the judgment of the lower appellate court it is seen that the finding of the Subordinate Judge that defendants 2 and 3 are not entitled to kudikidappu right was attacked. From the judgment of the Subordinate Judge, Parur dated 28-1-1980, defendants 2 and 3 filed A. S. No. 191 of 1980 before the District Court, Parur. From a reading of the judgment of the lower appellate court it is seen that the finding of the Subordinate Judge that defendants 2 and 3 are not entitled to kudikidappu right was attacked. The learned District Judge took the view that defendants 2 and 3 are not parties to Ext. Al contract and the question as to whether they are kudikidappukars will arise for consideration, only if the plaintiff seeks to recover possession of the building from them independently of the contract, Ext. Al. It was held that defendants 2 and 3 are not proper parties to the suit. In this view, they were removed from the party array and the plaintiff was given a decree for specific performance and for recovery of possession of the suit property only against the 1st defendant. The finding of the Land Tribunal that defendants 2 and 3 are not kudikidappukars was set aside. It was left open to be decided in future in appropriate proceedings that may be necessary, when the plaintiff seeks to recover the building from defendants 2 and 3. The appeal was allowed in part. The plaintiff has come up in Second Appeal. 3. The following question was formulated as a substantial question of law, at the time of admission of the Second Appeal on 12-8-1983: "Whether in a suit for specific performance of an agreement for sale, there can also be a decree for recovery of possession of the property?" 4. I heard counsel for, the appellant, M/s. C. M. Devan and V. Chitambaresh, and also counsel for the respondents, Mr M. V. Bose. Appellant's counsel attacked the judgment of the learned District Judge in holding that defendants 2 and 3 are not necessary parties, and that the plaintiff is entitled to a decree for possession only against the 1st defendant. It was also contended that the learned District Judge was in error in vacating the finding that defendants 2 and 3 are kudikidappukars. Respondent's counsel sought to sustain the reasoning and conclusion of the learned District Judge. In particular, counsel pointed out that defendants 2 and 3 were residing in the suit property even before Ext. Al, and since they are not parties to the contract, Ext. Respondent's counsel sought to sustain the reasoning and conclusion of the learned District Judge. In particular, counsel pointed out that defendants 2 and 3 were residing in the suit property even before Ext. Al, and since they are not parties to the contract, Ext. Al, in decreeing specific performance against the 1st defendant, no decree for possession can be passed against defendants 2 and 3. 5. On hearing the rival contentions of the parties, I am of the view that the submission made by the appellant's counsel is entitled to acceptance. The suit was filed in 1976, after the Specific Relief Act, 1963 (Act 47 of 1963). S.22 of the Specific Relief Act, 1963 provides that any person suing for the specific performance of a contract for the transfer of immovable property may, in'an appropriate case", ask for "possession", or partition and separate possession of the property, in addition to such performance". Under S.22 (2) read with the proviso thereto, the court can grant a relief only if it is specifically claimed. Even if it has not been claimed in the plaint, the court shall, at any stage of the proceeding, allow the plaintiff to amend the plaint for including a claim for such relief. In this suit, filed after the coming into force of Act 47 of 1963, even in the plaint, the plaintiff has prayed for possession of the property from defendants 1 to 3. This is not disputed by the respondents/ defendants. Prima facie, S.22 of the Specific Relief Act, 1963 permits the court to grant a decree for possession of the property, in decreeing specific performance of the contract. In this connection, it should be stated, even before Act 47 of 1963, in the absence of a provision similar to S.22 of the Specific Relief Act, 1963, the majority of the High Courts in India were of opinion that the plaintiff may claim a decree for possession in a suit for specific performance. The preponderance of judicial opinion was, that even the executing court was competent to grant delivery of property, in a case where no such relief is granted by a decree for specific performance of the contract of sale. The preponderance of judicial opinion was, that even the executing court was competent to grant delivery of property, in a case where no such relief is granted by a decree for specific performance of the contract of sale. This was on the basis, that eventhough possession was not claimed in the plaint, it could be asked for in execution of the decree for specific performance, on the ground that the relief of possession is merely incidental to that of execution of a sale of conveyance or implicit in it. The entire case law has been discussed exhaustively by Balagangadharan Nair, J in Narayana Pillai v. Ponnuswami (1978 KLT 512). There are other subsequent decisions as well taking the same view - Ramji Lal v. Ram Pershad (AIR 1979 Delhi 129); Debabrata v. Biraj Mohan (AIR 1983 Calcutta 51). The ratio laid down in these cases are in accord with the decision of the Supreme Court in Babu Lal v. M/s. Hazari Lal Kishori Lal (AIR 1982 SC 818). If that be the legal position, even before the Specific Relief Act, 1963 it appears to me that the power of the court to order, that the plaintiff be given possession of the property, in "appropriate cases" expressly provided in S.22 of the Act, cannot be whittled down. In cases where the defendant is in possession, the plaintiff can ask for possession. Formerly, (before Act 47 of 1963), even in the absence of a prayer therefor this can be done. Simply because, it is expressly provided in S.22 of the Act, that the plaintiff can ask for "possession" also, does it mean that in its absence, the court is powerless to order that the plaintiff may be put in possession? It does not appear to be so. Even in the absence of a prayer, the court can grant the relief of specific performance and can further direct possession of the property be given to the plaintiff. The relief of specific performance of the contract of sale takes within its ambit, the power to put the plaintiff in possession of the property conveyed under the sale-deed. The relief of possession is inherent in the relief of specific performance of the contract of sale. The plaintiff need not specifically claim possession of the property. That was the law before S.22 of the Specific Relief Act, 1963. The relief of possession is inherent in the relief of specific performance of the contract of sale. The plaintiff need not specifically claim possession of the property. That was the law before S.22 of the Specific Relief Act, 1963. S.22 of the Specific Relief Act, 1963 has not in any way nullified the above legal position. On the other hand, it has only widened the powers of the court. The object and scope of S.22 of the Specific Relief Act, 1963 has been laid down in Babu Lal v. M/s. Hazari Lal Kishori Lal (AIR 1982 SC 818-Paras 11 to 14), as follows: 11. S.22 enacts a rule of pleading. The Legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim decree for possession in a suit for specific performance, even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed. The Legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the Court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession. 12. The section enacts that a person in a suit for specific performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, namely, he may ask for possession, or for partition or for separate possession including the relief for specific performance. These reliefs he can claim, notwithstanding anything contained in the Code of Civil Procedure, 1908, to the contrary. Sub-s. (2) of this section, however, specifically provides that these reliefs cannot be granted by the Court, unless they have been expressly claimed by the plaintiff in the suit. Sub-section (2) of the section recognised in clear terms the well-established rule of procedure that the Court should not entertain a claim of the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to. Sub-section (2) of the section recognised in clear terms the well-established rule of procedure that the Court should not entertain a claim of the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to. The proviso to this sub-section (2), however, says that where the plaintiff has not specifically claimed these reliets in his plaint, in the initial stages of the suit, the Court shall permit the plaintiff at any stage of the proceedings, to include one or more of the reliefs, mentioned above by means of an amendment of the plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid multiplicity of suits and that the plaintiff may get appropriate relief without being hampered by procedural complications. 13. The expression in sub-s.(1) of S.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 0. 2, R.2 of Civil P. C., 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 visualized 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 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. 1n 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 S.55 (1) of the T. P. 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 decision in Gyasa v. Risalo (AIR 1977 Allahabad 156) throws considerable light on this aspect. The crucial words in S.22 of the Specific Relief Act to the effect, "any person suing for the specific performance of contract for the transfer of immovable property may," "in an appropriate case" ask for possession, would seem to indicate, that when the property is in the possession of a third party, in order to render the decree for specific performance of the contract of sale effective and meaningful, so that the plaintiff can get the required relief, he can in such "appropriate cases", implead such third party also for obtaining possession. The circumstances may demand the relief asked for. It is true that defendants 2 and 3 are not parties to Exhibit Al. But they are residing in the building in the plaint property. They were impleaded in the suit. The plaintiff asked for possession against defendants 2 and 3 also. It was granted by the trial court. The plea of defendants 2 and 3 that they are kudikidappukars was adjudicated by the Land Tribunal and negatived. It is certainly open to defendants 2 and 3 to assail that finding before, the lower appellate court. They did so. The plaintiff asked for possession against defendants 2 and 3 also. It was granted by the trial court. The plea of defendants 2 and 3 that they are kudikidappukars was adjudicated by the Land Tribunal and negatived. It is certainly open to defendants 2 and 3 to assail that finding before, the lower appellate court. They did so. The learned District Judge should have adjudicated that question. He failed to do so. It was wrong. He was totally in error in holding that defendants 2 and 3 are not proper parties to the suit, and that the plaintiff is entitled to relief of possession only against the Ist defendant. There is no warrant to limit the relief as against the Ist defendant alone and in postponing the adjudication of the plea of defendants 2 and 3 that they are entitled to kudikidappu right. The learned District Judge failed to note essential pleadings in the case and also failed to give due effect to S.22 of the Specific Relief Act 1963, as explained by the Supreme Court of India in Babu Lal v. M/s. Hazari Lal Kishori Lal (AIR 1982 SC 818) and by this court in Narayana Pillai v. Ponnuswami (1978 KLT 512). 1n the circumstances, the judgment and decree of the lower appellate court deserve to be set aside. I hereby do so. 6. The Second Appeal is allowed. The judgment and decree of the lower appellate court are set aside. The matter is remitted to the lower appellate court. The District Judge, Parur will restore A. S. No. 191 of 1980 to its file and dispose of the appeal in accordance with law and in the light of the observations contained herein. 7. There shall be no order as to costs. Since the matter is one of remit, the appellant is entitled to the refund of the court fee paid in the Memorandum of Second Appeal. The appeal is posted before the District Court on 2-9-1985.