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2003 DIGILAW 887 (PAT)

Kailash Rai v. Hare Ram Dubey

2003-08-22

NAGENDRA RAI

body2003
Judgment 1. The decree-holder is the petitioner against the order dated 24.5.2003 passed by the Subordinate Judge VI, Buxar, rejecting the petition for a direction to the judgment-debtor to execute the sale-deed and in case of his failure the court shall execute the sale deed in his favour and, thereafter, to put him in possession, on the ground that no relief has been sought for regarding delivery of possession in the title suit filed by the decree-holder-petitioner. 2. The plaintiff-petitioner filed a suit for specific performance of contract against the defendant-opposite party and specifically prayed therein that the judgment- debtor be directed to execute the sale- deed on the assertion that there was an agreement entered into between the parties and he was willing to perform his part of the contract, but the defendant is not executing the sale-deed. In the relief portion, specific prayer was made to direct the defendant-opposite party to execute the sale-deed and on his failure to execute the sale-deed, the said deed be executed by the court and the possession be also handed over to him. The suit was decreed in terms of the prayer made in the plaint. Thereafter, the judgment debtor has filed an appeal, which is pending. 3. During the pendency of the appeal, the petitioner filed an application for a direction to the judgment debtor to execute the sale-deed and on refusal the Court to execute the safe deed and put him in possession. The court below has rejected the prayer on the ground that no such relief for possession has been made in the plaint. 4. A copy of the plaint has been annexed with the Civil Revision. From a perusal of the relief portion of the plaint, it is clear that the possession was also sought for. Thus, the court below was not justified in saying that no prayer for delivery of possession was made. In that view of the matter, the submission advanced on behalf of the opposite party that there was no prayer for delivery of possession in terms of section 22 of the Specific Relief Act (for short the Act) is without any substance. Even if no prayer would have been made, the decree-holder was entitled to be put in possession in view of the admitted fact that the judgment debtor was in possession of the land. 5. Even if no prayer would have been made, the decree-holder was entitled to be put in possession in view of the admitted fact that the judgment debtor was in possession of the land. 5. The said question was considered by the Apex Court in the case of Babu Lal V/s. M/s. Hazari Lal Kishori Lal, reported in A.I.R. 1982 S.C. 818, wherein it was held that 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 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. 6. Learned counsel appearing for the opposite party, on the other hand, relied upon the judgment of the Apex Court in the case of Adcon Electronics Pvt. Ltd. V/s. Daulat, reported in A.I.R. 2001 S.C. 3712, wherein it has been held that a suit for specific performance of contract for sale of immovable property if no prayer is made for delivery of possession, the suit cannot be treated as suit for land. 7. In my view, the case relied upon by the learned counsel for the opposite party does not support the stand taken by the opposite party. There the question for consideration was as to whether the suit was for declaration of right with regard to land and in that context it was observed that since the suit was for specific performance of agreement for sale of the suit property, wherein relief of delivery of the suit property was no specifically claimed, the suit cannot be treated as a suit for land. 8. Thus, I am of the considered view that the court below has committed a jurisdictional error in rejecting the petition filed by the decree-holder. 8. Thus, I am of the considered view that the court below has committed a jurisdictional error in rejecting the petition filed by the decree-holder. Accordingly, the impugned order is set aside and the court below is directed to proceed further in the matter and direct the judgment-debtor to execute the sale-deed and on his failure the court will execute the sale-deed and the decree-holder shall be put in possession. 9. In the result, this Civil Revision is allowed.