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2014 DIGILAW 1183 (PNJ)

Jeet Singh v. Gursewak Singh

2014-08-12

RAKESH KUMAR JAIN

body2014
JUDGMENT RAKESH KUMAR JAIN, J. 1. The following two questions are involved in this revision petition:- (i) Whether the plaintiff can ask for possession in execution of a decree, rendered in a suit for specific performance directing the execution of the sale deed even if the relief of possession has not been specifically claimed in the suit and granted by the Court? (ii) Whether the judgment in the case of Nathu Ram vs. Chhotu Singh, 2012 (4) Civil Court Cases 184 (P&H), relied upon by the petitioner, is per inquirium? In brief, the petitioner filed a suit for specific performance of an agreement to sell dated 22.04.1999 regarding land measuring 72 kanal 02 marlas and in the alternative for recovery of Rs. 10,34,000/- as double the amount of earnest money and for permanent injunction restraining the defendants from alienating the suit land except to the plaintiff as per the agreement to sell. The suit was decreed on 28.01.2002 in the following terms:- "It is ordered that the suit of the plaintiff is decreed with costs and defendants are directed to execute the sale deed, failing which plaintiff shall be entitled to get the sale deed executed through process of law." The appeal filed by the defendants was also dismissed on 31.07.2007 in which the following decree was passed:- "It is ordered that the appeal in hand is hereby dismissed with costs." 2. There is no dispute that the Local Commissioner appointed by the Court vide order dated 27.04.2011 executed the sale deed no. 936 dated 09.06.2011 in favour of the plaintiff in the office of the Sub Registrar, Malout. The difficulty of the petitioner started when he filed an application for issuance of warrant of possession alleging that once the sale deed has been registered in his name, he is also entitled to physical possession of the land in dispute. This application was contested by the judgment debtors/respondents on the ground that the plaintiff-petitioner had only prayed in the suit for execution of the sale deed and in the alternative for refund of double the amount of earnest money, but no prayer was made for delivery of possession. It was alleged that in view of Section 22 of the Specific Relief Act, 1963 (here-in-after referred to as the Act) the relief of possession is barred until and unless it is specifically claimed in the suit. It was alleged that in view of Section 22 of the Specific Relief Act, 1963 (here-in-after referred to as the Act) the relief of possession is barred until and unless it is specifically claimed in the suit. The learned Executing Court dismissed the application vide its order dated 23.09.2011 which led to the filing of the present revision petition. 3. Counsel for the petitioner has argued that once the sale deed has been executed in his favour in terms of the decree passed, he is entitled to possession also even if the decree is silent in this regard as delivery of possession is incidental. He has basically relied upon a decision of this Court in the case of Nathu Ram vs. Chhotu Singh, 2012 (4) Civil Court Cases 184 (P&H). 4. On the other hand, counsel for the respondents has submitted that Section 22 of the Act has not at all been noticed in Nathu Ram's case (supra), therefore, the said judgment is per inquirium and cannot be relied upon. 5. I have heard learned counsel for the parties and examined the record with their able assistance. 6. In order to appreciate respective arguments of the learned counsel for the parties, it would be relevant to refer to Section 22 of the Act, which reads as 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. (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." 7. According to the aforesaid provision, until and unless possession is specifically prayed in the suit while seeking the relief of specific performance of the contract by way of execution of sale deed, the Trial Court cannot grant the relief of possession as it is barred under Section 22(2) of the Act. 8. Now the question would be as to whether the decision in Nathu Ram's case (supra) would be applicable to this case in which it has been held that if the decree is silent regarding the relief of possession, the Executing Court can order delivery of possession as delivery of possession is incidental to the execution of the conveyance in favour of the decree holder. 9. At the first blush, it appears to be attractive and sounds logical also that once the sale deed has been executed, the natural corollary would be of delivery of possession even if it has not been specifically asked for or granted by the Court. In Nathu Ram's case (supra), this Court had referred to the following judgments:- 1. Pt. Balmukand vs. Veer Chand, 1954 AIR (Allahabad) 643 2. Sri Sri Janardan Kishore Lal Singh Deo and Another vs. Girdhari Lal Sunda, 1957 AIR (Patna) 701 3. Gyasa vs. Smt. Risalo, 1977 AIR (Allahabad) 156 4. Makhan Singh and Others vs. Tara Singh and Others, 1980 PLR 479 5. S.S. Rajabathar vs. N.A. Sayeed, 1974 AIR (Madras) 289 6. Smt. Vasantibai (deceased) by L.R. vs. Mallappa Narasappa Ramankatti (deceased) by L.Rs., 2003 (1) R.C.R. (Civil) 519 10. The decision in Pt. Balmukand's case (supra) is based upon an earlier judgment of the Allahabad High Court in the case of Arjun Singh vs. Sahu Maharaj Narain, AIR 1950 Allahabad 415, in which it has been held that where in a suit for specific performance of a contract of sale no relief for possession is claimed and consequently the decree passed in the suit contains no relief for delivery of possession, the Court executing the decree is competent to deliver possession because the order directing delivery of possession being merely incidental to the execution of the deed of sale. 11. 11. In Sri Sri Janardan Kishore Lal Singh Deo's case (supra), the Court had relied upon a decision rendered in the case of Atal Behary vs. Barada Prasad, AIR 1931 Patna 179 to hold that the delivery of possession is incidental in a suit for specific performance even if it is not specifically claimed in the suit. 12. In Gyasa's case (supra), the Court had relied upon the decisions in Arjun Singh's case (supra) and Pt. Balmukand's case (supra) while referring to Section 22 of the Act observing that the expression 'in an appropriate case' used in Section 22(1) of the Act indicates that it is not always incumbent upon the plaintiff to claim possession in a suit for specific performance, rather it is to be done where the circumstances demand it. It was held that the relief of specific performance of the contract of sale embraces within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. 13. In Makhan Singh's case (supra), this Court has relied upon all the aforesaid 3 judgment in Sri Sri Janardan Kishore Lal Singh Deo's case (supra), Pt. Balmukand's case (supra) and Gyasa's case (supra) to conclude that the decree for specific performance includes the possession even it is neither in the judgment nor in the decree. 14. In S.S. Rajabathar's case (supra), the Madras High Court has also relied upon the aforesaid judgments while holding that the possession is an integral part of the execution of the sale deed in a suit for specific performance. 15. Lastly, in Smt. Basantibai's case (supra), the Karnataka High Court has also held in the same manner while relying upon the earlier judgments, referred to above. 16. However, in the case of Adcon Electronics Pvt. Ltd. vs. Daulat, 2002 (1) R.C.R. (Civil) 806, the Supreme Court has held that "it may be seen that sub-section (1) is an enabling provision. A plaintiff in a suit of specific performance may ask for further reliefs mentioned in clauses (a) and (b) thereof. Clause (a) contains reliefs of possession and partition and separate possession of the property, in addition to specific performance. The mandate of sub-section (2) of Section 22 is that no relief under clauses (a) and (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed. Clause (a) contains reliefs of possession and partition and separate possession of the property, in addition to specific performance. The mandate of sub-section (2) of Section 22 is that no relief under clauses (a) and (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed. Thus it follows that no Court can grant the relief of possession of land or other immovable property, subject-matter of the agreement for sale in regard to which specific performance is claimed, unless the possession of the immovable property is specifically prayed for." 17. Thus, in view of the judgment of the Supreme Court in Adcon Electronics Pvt. Ltd. case (supra), the judgment relied upon by the petitioner in Nathu Ram's case (supra) is not applicable. Consequently, the first question is hereby decided accordingly. 18. The second question as to whether the judgment in Nathu Ram's case (supra) is per inquirium or not is also answered in affirmative because the judgment in Pt. Balmukand's case (supra) is of the year 1954 and in Sri Sri Janardan Kishore Lal Singh Deo's case (supra) is of the year 1957. At that time, the Specific Relief Act, 1963 was not in picture as it was enforced w.e.f. 13.12.1963 containing Section 22(2) which creates a complete bar for grant of the relief of possession until and unless it has been specifically claimed. The judgment in Gyasa's case (supra) has though a reference of Section 22 of the Act, but it has interpreted only Section 22(1), whereas the bar is contained in Section 22(2) of the Act. In Makhan Singh's case (supra), this Court has relied upon the aforesaid 3 judgments in Sri Sri Janardan Kishore Lal Singh Deo's case (supra), Pt. Balmukand's case (supra) and Gyasa's case (supra) and has not taken into consideration Section 22(2) of the Act. Similar is the position of the other cases which finds mention in Nathu Ram's case (supra). 19. It is well settled that a judgment rendered by the Court without reference to the provisions of the Act or binding precedent is said to be per inquirium as held by the Supreme Court in the case of State of U.P. and Another vs. Synthetics and Chemicals Ltd. and Another, 1991 (3) JT 268 in which it has been held that "in practice, per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The quotable in law is avoided and ignored if it is rendered, in ignoratium of a statute or other binding authority. 20. Thus, in view of the decision of the Supreme Court in Adcon Electronics Pvt. Ltd. case (supra), the decision of this Court in Nathu Ram's case (supra) cannot held to be a binding precedent. 21. In view of the aforesaid discussion, the present revision petition is hereby dismissed.