JUDGMENT 1. THIS appeal is preferred against the judgment and order of the learned Single Judge by which the learned Trial Judge has been pleased to pass an order for return of the plaint filed in the suit, for presenting before the appropriate Court within whose jurisdiction the property in question situates, on the application filed by the defendant for return of the plaint filed in the aforesaid suit. 2. THE learned Trial Judge has correctly recorded the fact of the case that the plaintiff has filed a suit for specific performance of Memorandum of Understanding but sole defendant is said to have been agreed to assign an unexpired period of leasehold interest of premises at 8/2, Palm Avenue, Calcutta, which situates admittedly outside the territorial limit of this Court. THE relief claimed in the plaint for specific performance of the terms and conditions for assignment containing in the Memorandum of Understanding and nothing else. As a matter of fact that plaintiff has already sought for leave and we are told that such leave has been granted by this Court under the provisions of Order II r.2 of the Code of Civil Procedure for obtaining possession of the property. The learned Trial Judge was of the view that irrespective of the relief claimed the suit that is in the nature of specific performance, is a suit for land. None appears for the respondent/defendant despite the matter being called on thrice. Mr. Chakrabarty, led by Mr. Deb and Mr. Ghosh, submits that judgment and order of the learned Trial Judge on the facts and circumstances of this case is completely contrary to the present position of law relating to suit for land. He subsmits that when any suit is filed for a relief the specific performance simpliciter without asking for any declaration or title to the property or for possession thereof it does not assume that character of a suit for land in any sense and his legal argument is supported by the decision of the Supreme Court in the case of (ADCON ELECTRONICS PVT. LTD. Versus DAULAT AND ANOTHER) reported in (2001) 7 Supreme Court Cases 698 and also a judgment of the learned Single Judge of this Court following by the aforesaid decision in the case of (Hazra Medical Stores Private Limited Versus Biswanath Sarkar and Ors.) reported in (2007)1 CAL LT 656 (HC). 3. LTD. Versus DAULAT AND ANOTHER) reported in (2001) 7 Supreme Court Cases 698 and also a judgment of the learned Single Judge of this Court following by the aforesaid decision in the case of (Hazra Medical Stores Private Limited Versus Biswanath Sarkar and Ors.) reported in (2007)1 CAL LT 656 (HC). 3. THEREFORE, he concludes the order passed by the learned Trial Judge is not sustainable under the law. 4. WE have considered his submission and have examined the plaint as it is the only document which has to be examined in the demurrer action. In prayer portion of the plaint following relief have been claimed;- "The plaintiff prays for Leave under Order 2 Rule 2 of the Code of Civil Procedure, 1908 and claims, (a) Decree for specific performance of the Memorandum of Understanding dated August 30, 1990. (b) In the alternative, an enquiry in to the damages suffered by the plaintiff and decree for the sum found due thereon." The leave as aforesaid was claimed for the case and relief as mentioned in paragraph 19 (at page 36) of the paper book is hereunder;- "19. The plaintiff has not claimed any relief regarding possession of premises No. 8/2, Palm Avenue, Calcutta 700 019, in the present suit. The plaintiff prays for leave of this Hon'ble Court under Order 2 Rule 2 of the Code of civil Procedure, 1908 for instituting the appropriate legal proceeding in appropriate forum." Thus, it is clear that it is a suit for specific performance simpliciter. The Supreme Court in the said Adcon Case (supra) has explained what is the real intention of a suit for specific performance vis-?-vis the suit for land. In paragraph 15 of the said judgment the Supreme Court has explained the position of law in the manner as follows;- "15. From the above discussion it follows that a 'suit for land' is a suit in which the relief claimed relates to title to or delivery of possession of land or immovable property. Whether a suit is a suit for land or not has to be determined on the averment in the plaint with reference to the reliefs claimed therein; where the relief relates to adjudication of title to land or immovable property or delivery of possession lof the land or immovable property, it will be a 'suit for land'. Whether a suit is a suit for land or not has to be determined on the averment in the plaint with reference to the reliefs claimed therein; where the relief relates to adjudication of title to land or immovable property or delivery of possession lof the land or immovable property, it will be a 'suit for land'. We are in respectful agreement with the view expressed by Mahajan, J. in Moolji Jaitha case." 5. FOLLOWING the above decision the learned Single Judge of this Court in case of Hazra Medical Stores (Supra) has explained the position what is the real intention in filing the suit for specific performance without asking for any other relief or possession. In paragraph 12 of the judgment the learned single Judge has observed as follows;- "According to me, while granting relief of the perpetual injunction and mandatory injunction in this case I do not require any adjudication or declaration of title of the immovable property. Whatever title the defendants possess is to pass on the plaintiff by executing conveyance. Passing on title from x to y does not require any adjudication and it automatically follows by operation of the law when the property is sold from one person to another. Declaration of title is required when a particular person's right, whether exists or not, is denied by the defendants." 6. WE hasten to add if possession is prayed for, obviously the plaintiff will call upon the Court to decide whether the plaintiff will entitle to get possession either on title or otherwise. When the aforesaid exercise is not required to be undertaken by the Court in a suit for specific performance we feel that it does not satisfy the test of suit for land. In a suit for land it has been explained in catena of judgment right from Moolji Jaitha case and also in the case of (TRIDANDEESWAMI BHAKTI KUSUM SRAMAN MAHARAJ and ORS. Versus MAYAPORE SREE CHAITANYA MATH and ORS.) reported in AIR 1983 Calcutta 420. Following the decision laid down in the aforesaid catena of judgment the suit for specific performance simpliciter is not a suit for land. We, therefore, hold that learned Trial Judge did not approach with correct proposition of law. The learned Trial Judge has relied on another decision passed by His Lordship viz. Following the decision laid down in the aforesaid catena of judgment the suit for specific performance simpliciter is not a suit for land. We, therefore, hold that learned Trial Judge did not approach with correct proposition of law. The learned Trial Judge has relied on another decision passed by His Lordship viz. (UCO BANK Versus RATNIDEVI JAIN and ORS.) In our view the aforesaid judgment of the learned Single Judge is not binding authority on this issue in view of the aforesaid Supreme Court Pronouncement in the case of Adcon Electronics (supra) of course at that point of time the reference of Adcon Electronics (supra) was not available but the case of Adcon Electronics has followed the ratio decided in Moolji Jaitha case and accepted the same. Thus it is clear that judgment of learned Trial Judge was contrary to the principle laid down by the Supreme Court in Moolji Jaitha case also. Under these circumstances we are unable to uphold the decision of the learned Trial Judge for returning of the plaint. 7. IN a suit for specific performance what the defendant is to do is to execute a registered conveyance and it is a personal obidience and compliance and if the defendant resides within the jurisdiction and if no leave for possession is claimed then the suit is maintainable. 8. LASTLY we should have decided this point though not agitated before us whether this order is an appellable or not. Going by the provisions of Order 43 it appears that the returning the plaint and presentation before appropriate Court is not an appellable. It is true Order 43 does not help the appellant to maintain the appeal but in our view the order impugned really takes away the jurisdiction of this Court and when the question of jurisdiction is to be considered by the Appeal Court it obviously comes within the purview of the judgment within the meaning of Clause 15 of the Letters Patent. Accordingly, the appeal is allowed. Judgment and order of the learned Trial Judge is set aside. Let the suit be heard by this Court in accordance with law. Urgent photostat certified copy of this order, if applied for, be made available to the parties on compliance of usual formalities.