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2014 DIGILAW 1784 (BOM)

Jaspal Sawhney v. Joginder Sawhney

2014-08-11

R.D.DHANUKA

body2014
JUDGMENT Petitioner (original plaintiff) has prayed for leave under clause XII of the Letters Patent, 1865 to file the suit (L) No.494 of 2014 against the defendants in this court. The defendants has opposed the prayer for leave under Clause XII of Letters Patent, 1865. Some of the relevant facts for the purpose of deciding this petition are as under :- 2. Plaintiff is son of the defendant no.1 and is brother of defendant no.2. Father of the plaintiff Mr.Kirpal Singh Sawhney expired in Mumbai on 6th August, 2008. It is case of the plaintiff that the plaintiff and the defendants are the only legal heirs of the said deceased Mr.Kirpal Singh Sawhney. 3. In the suit bearing (L) No. 494 of 2014 the plaintiff has prayed for a declaration that the plaintiff has an undivided 1/3rd share in the estate of the deceased father of the plaintiff as reflected in Ex.B to the Testamentary Suit No. 100 of 2013 also being Ex.B to the plaint in this suit and Ex.D and seeks an order and direction that the immoveable properties of the estate of the deceased setout in Ex.B be sold under the directions of this court or be divided by metes and bounds and the plaintiff's 1/3rd share therein be handed over to him. The plaintiff has also prayed that the moveable assets of the deceased setout in Ex.B and other assets setout in Ex.D be divided equally between the plaintiff and the defendants and the 1/3rd share of the plaintiff be handed over to him. In prayer (d) of the plaint, the plaintiff has prayed that the enquiries be made, directions be given and orders be passed by this court as it deems fit to ensure that the plaintiff is given his 1/3rd share in the entire estate of the deceased father of the plaintiff. 4. In paragraph (20) of the plaint, it is averred by the plaintiff that the defendant no.1 resides in Mumbai. Most of the assets of the deceased are in Mumbai. The agricultural land is at Muru – Janjira, District Raigad, one of the flat is at Gurgaon in Haryana State. It is averred that the material part of cause of action has arisen in Mumbai. This court will therefore on leave if granted under clause XII of the Letters Patent, 1865 will have jurisdiction to try and entertain the present suit. 5. It is averred that the material part of cause of action has arisen in Mumbai. This court will therefore on leave if granted under clause XII of the Letters Patent, 1865 will have jurisdiction to try and entertain the present suit. 5. In paragraph (5) of this petition for seeking leave it is averred that the part of the estate of the deceased father of the plaintiff as described in the schedule in the testamentary suit filed by the defendant no.1 i.e. the flat is situate at Gurgaon. Defendant no.2 resides at Gurgaon in the said flat which is outside the ordinary limit of jurisdiction of this court. In para 7 of this petition, it is averred that the material part of the cause of action has arisen at Mumbai. The plaintiff has prayed for leave of this court to file the proposed suit against the defendants for claiming 1/3rd share in the estate of his deceased father. 6. Mr.Madon, learned senior counsel appearing for the respondents submits that in the suit, the plaintiff has prayed for possession of various land and immoveable properties and has also applied for partition of such immoveable properties by metes and bounds and prayed for possession of 1/3rd of such properties to be handed over to the plaintiff. Learned senior counsel invited my attention to Ex.B to the plaint and submits that properties described at Serial nos. 1, 2 and 3 are immoveable properties and are situate at Mumbai whereas properties described at serial nos. 4, 5 and 6 are situated outside Greater Mumbai. In so far as properties described at Ex.D are concerned, the same are moveable properties. It is submitted by the learned senior counsel that since plaintiff has prayed for adjudication of title, has prayed for partition and possession in respect of the immoveable properties which are outside Greater Mumbai, the suit filed by the plaintiff being a suit for land, no leave under Clause XII of the Letters Patent can be granted by this court. It is submitted that the plaintiff will have to file separate suits in respect of each of such immoveable properties situated outside Greater Mumbai in the court having territorial jurisdiction in respect of such properties. 7. It is submitted that the plaintiff will have to file separate suits in respect of each of such immoveable properties situated outside Greater Mumbai in the court having territorial jurisdiction in respect of such properties. 7. Mr.Madon, learned senior counsel distinguished the judgment delivered by the Full Bench of this court in case of Hatimbhai Hassanally vs. Framroz Eduljee Dinshaw AIR 1927 Bom.278 and in particular paragraphs 3, 43, 44, 47, 48 and 49 in support of his submission that since the suit is for land, leave under clause XII cannot be granted by this court in respect of those properties which are situated outside Greater Mumbai. Paragraphs 3, 43, 44, 47, 48 and 49 of the judgment of Full Bench in case of Hatimbhai Hassanally (supra) read thus :- 3. It will be seen that Clause 12 divides suits into at least two branches, viz., (a) suits for land within the jurisdiction, and (b) all other suits where the cause of action arises wholly or partially within the jurisdiction, provided in the latter case the leave of the Court is obtained, or the defendant dwells or works for gain within the jurisdiction. For the present I omit from consideration the possibility of construing Clause 12 as containing two other branches, viz., (c) where part of the land is within the jurisdiction and the leave of the Court is obtained, and (d) where all the land is outside the jurisdiction or the whole cause of action arises outside the jurisdiction, but yet the defendant dwells or works within the jurisdiction. Confining then Clause 12 to the first two branches (a) and (6), then if the present suit is one for land, it cannot be brought in this Court, as though the defendant dwells within the jurisdiction, the whole of the mortgaged land is situate without the jurisdiction. If, however, the present suit is not a suit for land, then it can be brought in this Court with leave, for undoubtedly a part of the cause of action arose within the jurisdiction inasmuch as the mortgage in question was effected by a deposit of deeds made within the jurisdiction. 43. That brings me to the second main question, viz.: What is a suit for land within Clause 12 ? The words "suit" and "land" create no difficulty. It is the word "for" which causes all the difficulty. 43. That brings me to the second main question, viz.: What is a suit for land within Clause 12 ? The words "suit" and "land" create no difficulty. It is the word "for" which causes all the difficulty. Speaking for myself, and without attempting any definition, I should have thought those words referred to suits to obtain or recover land, or alternatively to suits which substantially involved the recovery of land or its equivalent. Personally I prefer the former meaning. For instance, a suit for foreclosure, or for specific performance, or for damages is a suit to obtain or recover foreclosure, specific performance or damages. We do not speak of a suit relating to or concerning foreclosure, specific performance or damages. But for the purposes of the present case, it is not necessary to insist on the former meaning. The alternative meaning which introduces the qualification of "substantially" may yet be adopted for testing whether a mortgage suit is a suit for land within Clause 12. 44. Accordingly, suits for damages for trespass to land may well be regarded as substantially suits for land. Thus in Sudamdih Coal Co., Ld. v. Empire Coal Co., Ld. where the defendant was alleged in effect to have trespassed across the boundary between two collieries and to have stolen the plaintiffs' coal, and the defence was a denial that the land from which the coal was extracted belonged to the plaintiffs, it was held by Sir Lawrence Jenkins and Mr. Justice Woodroffe that "the substantial question" was "the right to the land", and that accordingly it was a suit for land. (See page 952). Similarly, in the well-known case of British South Africa Company v. Companhia de Mocambigue it was held that the English Courts would not entertain a suit for damages for trespass to foreign land, and accordingly the House of Lords reversed the decision of a majority of the Court of Appeal to the opposite effect. Or, again, if a plaintiff asks for a declaration of title to land and an injunction, that may in substance be an action for land, although he does not formally seek a writ of possession. (See Vaghoji v. Camaji. Or, again, if a plaintiff asks for a declaration of title to land and an injunction, that may in substance be an action for land, although he does not formally seek a writ of possession. (See Vaghoji v. Camaji. Sir Lawrence Jenkins there held that the leading purpose of the suit was to establish a title to possession of land, and to secure that possession from molestation, and that the claim was not based on any contract, trust or fraud, but was brought to vindicate, rights resulting from ownership and possession alleged to be with the plaintiffs. (See pp. 258-9). 47. This brings me to what I consider is the crux of the case so far as the mortgagor is concerned. His counsel were constrained to argue that the expression "suits for land" meant "suits relating to or concerning land" and nothing narrower. They accordingly insisted on the extreme view I have already mentioned, and would not accept the via media of "substantially." The result must clearly be to include within the expression "suits for land" a large number of suits whose primary object is not land, but which yet undoubtedly may relate to or concern land. I refer, for instance, to administration suits and partnership suits. All specific performance actions would also be included, despite the view to the contrary taken in Nagendra Nath Chowdhuri v. Eraligool Company, Ltd. with respect to a vendor's suit for specific performance. 48. But at any rate as regards administration suits it is not open to the Indian Courts to adopt this argument of the mortgagor. Their Lordships of the Privy Council have laid it down clearly in Benode Behary Bose v. Nistarini Dassi that though an administration suit may relate to land, yet its primary object is to administer the estate of the deceased and that accordingly the High Court has jurisdiction to entertain the suit although the land or a part of it may be without the jurisdiction. Thus at p. 191 Lord Davey's judgment states :- On the question of jurisdiction their Lordships consider the decision right. The primary object of the suit was the administration of the estate of a deceased person resident within the jurisdiction, the principal executor being also resident there and the actual administration going on there. Thus at p. 191 Lord Davey's judgment states :- On the question of jurisdiction their Lordships consider the decision right. The primary object of the suit was the administration of the estate of a deceased person resident within the jurisdiction, the principal executor being also resident there and the actual administration going on there. The High Court of Calcutta, in its Ordinary Jurisdiction, had a right to order administration of this estate, and, as ancillary to such an order, to set aside deeds obtained by the fraud of the executor ... In like manner, their Lordships consider the Calcutta Court entitled, for the due administration of the estate, to set aside leases of land outside the territorial limits of their jurisdiction, those leases having been made as an incident of the same fraud. 49. But it must be borne in mind that a full administration decree in a normal case contains a contingent order for the sale of the land of the deceased. The Civil Procedure Code itself contains a common form administration decree to that effect. (See Appendix D, Form 17). The contingency there contemplated is the necessity for a sale to carry out the objects of the suit (see Clauses 10 and 11) which usually means insufficient money to pay debts and perhaps legacies charged on land. In a mortgage suit the corresponding contingency is substantially the same, for the primary object of a mortgage suit is in my judgment the payment of money and the contingency of sale depends on the non-payment of that money. 8. Mr.Madon, learned senior counsel placed reliance on the judgment of Supreme Court in case of Adcon Electronics Pvt. Ltd. vs. Daulat & Anr., AIR 2001 SC 3712 and in particular paragraphs 1, 11 to 15 in support of the submission that since the reliefs claimed by the plaintiff relates to the title or to the delivery of possession of land or immoveable property, this suit is a suit for land and thus no leave under clause XII can be granted in respect of the properties situate outside Mumbai. Paragraphs 1, 11 to 15 of the said judgment read thus :- 1. Paragraphs 1, 11 to 15 of the said judgment read thus :- 1. This appeal, by special leave, raises an interesting question: whether a suit simpliciter for specific performance of contract for sale of immovable property is a "suit for land" within clause 12 of Letters Patent of the High Court of Judicature at Bombay? 11. The question then arises as to what is meant by "suit for land". This expression has bene interpreted by different High Courts as well as the Federal Court. 12. In His Highness Shrimant Maharaj Yashvantray Holkar of IndoreVs. Dada Bhai Cursetji Ashburner a Division Bench of the Bombay High Court held that a suit for specific performance would not fall within the meaning of that expression. There the suit was filed for specific performance of an agreement to mortgage certain immovable property. The agreement was made in Bombay between the parties on January 8, 1883. The Divisional Court held, "it had jurisdiction" and granted decree. On appeal a Division Bench referred to an earlier judgment of that court in Yenkoba Balset Kasar Vs. Rambhaji which laid down that suit for land was a suit which asked for delivery of land to the plaintiff. The High Court also referred to the view of the Calcutta High Court in The Delhi and London Bank Vs. Wordie construing that expression to mean, "substantially for land" -- that is for the purpose of acquiring title to, or control over, land." It also noticed the view of a learned single Judge of the Calcutta High Court in Sreenath Roy Vs. Cally Doss Ghose holding that the court had no jurisdiction to make a decree in a suit for specific performance. The Division Bench of the Bombay High Court held that the suit was within the jurisdiction whether regarded as a suit for specific performance or to enforce equitable mortgage by deposit of title deeds as a court of equity in England could entertain it. 13. In M/s. Moolji Jaitha and Co. Vs. The Khandesh Spinning and Weaving Mills Co. Ltd., there is divergence of opinion among the learned Judges of five-Judge Bench of the Federal Court in regard to the import of the expression "suit for land". 13. In M/s. Moolji Jaitha and Co. Vs. The Khandesh Spinning and Weaving Mills Co. Ltd., there is divergence of opinion among the learned Judges of five-Judge Bench of the Federal Court in regard to the import of the expression "suit for land". Chief Justice Kania opined, "Taking the suit as a whole, one has to consider whether it is for the purpose of obtaining a direction for possession or a decision on title to land, or the object of the suit is something different but involves the consideration of the question of title to land indirectly." Justice Fazl Ali observed, "If had really felt that I was called upon to decide it, I would have agreed with the line of cases in which it has been held that, broadly speaking, the expression "suit for land" covers the following three classes of suits: (1) suits for the determination of title to land; (2) suits for possession of land; and (3) other suits in which the reliefs claimed, if granted, would directly affect title to or possession of land." Justice Patanjali Sastri took the view, "The words in question, besides obviously covering claims for recovery of possession or control of land, are apt to connote also suit which primarily and substantially seek an adjudication upon title to immovable property or a determination of any right or interest therein." Justice Mahajan observed, "If an attempt is made to find a comprehensive definition of the phrase, it will eventually be discovered that it has created further complications. I therefore content myself by saying that where the nature of the suit is such that in substance it involves a controversy about land or immovable property and the Court is called upon to decide conflicting claims to such property and a decree or order is prayed for which will bring about a change in the title to it, that suit can be said to be in respect of land or immovable property; but where incidentally in a suit, the main purpose of which or the primary object of which is quite different, some relief has to be given about land, the title to it not being in dispute in the real sense of the term, then such a suit cannot fall within the four corners of this expression." He added, "In my opinion, if the suit is for specific performance and a decree for possession of the land sold is claimed, such a suit would certainly be a "suit for land"; but if the suit is simpliciter for specific performance, i.e., for the enforcement of the contract of sale and for execution of a conveyance, in that event there can be no good ground for holding that such a suit is a suit for determination of title to land or that the decree in it would operate on the land. " In that view he expressed his agreement with the decision of the Full Bench of the Madras High Court in Velliappa Chettiar Vs. Govinda Doss AIR 1929 Mad 721. Justice Mukherjee perceived, "It seems to me fairly clear that the expression 'suit for land' occurring in clause 12, Letters Patent, means a suit which is instituted with the object of establishing claims regarding title to the property or possession of it. Whether or not possession is claimed, if title to any immovable property is to be directly affected by the result of the decision, the suit would be a suit for land." 14. In Debendra Nath Chowdhury Vs . Southern Bank Ltd. AIR 1960 Cal 626 a Division Bench of the Calcutta High Court took the view that the suit for specific performance of the contract to execute and register a lease with alternative claims for damages is not a 'suit for land' within the meaning of clause 12 of the Letter Patent. 15. Southern Bank Ltd. AIR 1960 Cal 626 a Division Bench of the Calcutta High Court took the view that the suit for specific performance of the contract to execute and register a lease with alternative claims for damages is not a 'suit for land' within the meaning of clause 12 of the Letter Patent. 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 averments 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 of 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 M/s. Moolji Jaitha's case (supra). 9. Mr.Madon, learned senior counsel invited my attention to paragraphs 7 to 16 and prayers (a) to (d) of the plaint and would submit that even the averments in the plaint would clearly indicate that the suit is for adjudication of title, for partition and possession of 1/3rd share in such properties. 10. Mr.Dhond, learned senior counsel appearing for the plaintiff invited my attention to the averments made in the plaint in support of his submission that the jurisdiction of a court has to be determined on the basis of the averments made in the plaint and with reference to the reliefs claimed. It is submitted that the defendant no.1 has filed a testamentary petition in this court which is converted into a testamentary suit, for probate of the alleged Will left by the deceased father of the plaintiff. The plaintiff has filed a caveat in the said suit and has disputed the existence of the alleged Will on various grounds. It is submitted that it is case of the plaintiff in this suit that the said deceased died intestate and thus plaintiff being one of the legal heir of the said deceased is entitled to 1/3rd share in the entire estate of the said deceased. The plaintiff has accordingly prayed for administration of estate of the said deceased and consequently the share of the plaintiff in the estate of the said deceased is sought. The plaintiff has accordingly prayed for administration of estate of the said deceased and consequently the share of the plaintiff in the estate of the said deceased is sought. Learned senior counsel submits that the primary object of the suit is the administration of the estate of the deceased. The plaintiff has not applied for adjudication of any title in respect of any part of the estate. It is submitted that most of these properties are disclosed as properties of the deceased by the defendant no.1 herself in the testamentary petition filed by her in this court which are described in Ex.B to the plaint. It is submitted that even the defendants have not disputed that any of the properties described in Ex.B are not the properties forming part of the estate of the deceased. 11. Mr.Dhond, learned senior counsel led emphasis on the prayers in the plaint and would submit that the plaintiff has prayed for administration of estate, for making an enquiry by this court, for issuance of directions to ensure that the plaintiff is given his 1/3rd share in the entire estate of the deceased. It is submitted that in no circumstances this suit can be considered as suit for land. Reliance is placed on paragraphs 47 to 49 of the judgment delivered by Full Bench of this Court in case of Hatimbhai Hassanally (supra) referred to aforesaid and submits that the said deceased died at Mumbai. Defendant no.1 is staying at Mumbai. The alleged Will was executed at Mumbai. Substantial part of the estate is situated at Mumbai. The material part of cause of action has arisen at Mumbai. The plaintiff is thus entitled to seek leave under clause XII of the Letters Patent in respect of the part of cause of action which has arisen outside Greater Mumbai so that the entire estate of the deceased is administered by this court where material part of cause of action has arisen. 12. Mr.Dhond, learned senior counsel distinguished judgment of Supreme Court in case of Adcon Electronics Pvt. Ltd. (supra) and submits that a suit can be considered a suit for land when suit is for determination of title to land, suit is for possession of land and the reliefs claimed if granted would directly affect title or possession of land. 12. Mr.Dhond, learned senior counsel distinguished judgment of Supreme Court in case of Adcon Electronics Pvt. Ltd. (supra) and submits that a suit can be considered a suit for land when suit is for determination of title to land, suit is for possession of land and the reliefs claimed if granted would directly affect title or possession of land. It is submitted that even according to all the legal heirs of the said deceased, title in respect of all these properties admittedly vested in the deceased father. 13. Mr.Dhond learned senior counsel placed reliance on paragraphs of the plaint and submits that the suit is for administration of estate and not for land. Mr.Dhond, learned senior counsel placed reliance on judgment of Privy Council in case of Benode Bihari Bose and others vs. Nistarini Dassi and others 9 CWN 961. Paragraph 7 of the said judgment reads thus :- 7. On the question of jurisdiction their Lordships consider the decision right. The primary object of the suit was the administration of the estate of a deceased person resident within the jurisdiction, the principal executor being also resident there and the actual administration going on there. The High Court of Calcutta, in its Ordinary Jurisdiction, had a right to order administration of this estate, and, as ancillary to such an order, to sot aside deeds obtained by the fraud, of the executor. Nor does the circumstance that a decree had been granted by the Court of the 24-Perguuuahs making a fraudulent award an order of Court protect that decree from the jurisdiction of the Calcutta Court, when redressing that fraud. In like manner, their Lordships consider the Calcutta Court entitled, for the due administration of the estate, to set. aside leases of land outside the territorial limits of their jurisdiction, those leases having been made as an incident of the same fraud. 14. Question that arises for consideration of this court is whether the suit filed by the plaintiff herein is a suit for administration of estate or is a suit for land and whether leave under clause XII of the Letters Patent can be granted in this petition. 15. To determine whether this court has jurisdiction or not reference to the averments made in the plaint with reference to the prayers would be necessary. 15. To determine whether this court has jurisdiction or not reference to the averments made in the plaint with reference to the prayers would be necessary. Under clause XII of the Letters Patent in suits other than suits for land, where material cause of action arises within the jurisdiction of this court and part of cause of action outside the territorial jurisdiction of this court, on the plaintiff obtaining leave of the court, such court can have jurisdiction to entertain such suit. 17. A perusal of the description of the properties in Ex.B makes it clear that those properties of the deceased were described by the defendant no.1 herself as estate of the said deceased in the testamentary petition filed by her in this court inter alia praying for probate of the alleged Will of the said deceased. A bare perusal of the schedule of assets described in Ex.B makes it clear that first three properties are situated at Mumbai and the remaining three properties are situated at different places outside the territorial jurisdiction of this court. The plaintiff is seeking 1/3rd share in all these properties and moveable properties described in Ex.D on the premise that the alleged Will propounded by the 1st defendant does not exist and the father of the plaintiff died intestate. 18. It is not in dispute that the father of the plaintiff who was husband of the 1st defendant and father of defendant no.2 died at Mumbai. Some of the properties forming part of the estate are situated at Mumbai. A perusal of the averments made in the plaint clearly indicates that it is case of the plaintiff that the said deceased died intestate and according to Succession Act applicable to parties, plaintiff will have 1/3rd share in the estate of the deceased. The prayers in the plaint would clearly indicate that the plaintiff has prayed for a declaration that he has 1/3rd undivided share in the estate of his deceased father which estate is declared by the defendant no.1 herself in the testamentary suit filed by her. Consequently the plaintiff seeks further directions from this court to make enquiries, to issue directions and to pass orders as this court deems fit to ensure that the plaintiff is given his 1/3rd share in the entire estate of the deceased by metes and bounds or the estate be sold under directions of this court. Consequently the plaintiff seeks further directions from this court to make enquiries, to issue directions and to pass orders as this court deems fit to ensure that the plaintiff is given his 1/3rd share in the entire estate of the deceased by metes and bounds or the estate be sold under directions of this court. Since the defendants have not disputed the title in respect of the estate of the deceased, plaintiff does not seek any adjudication of the title in respect of any of these properties. I am thus not inclined to accept the submissions made by Mr.Madon, learned senior counsel that plaintiff has prayed for any adjudication of title and therefore the suit land and accordingly the suit has to be construed as suit for land. 19. In my view the suit is for administration of estate of the deceased father of the plaintiff. Plaintiff has not prayed for adjudication of title. The court has to consider the primary object of filing the suit and the consequential relief prayed by the plaintiff. Full Bench of this court has considered this issue and has approved the view taken by the Privy Council in case of Benode Behari Bose (supra) and has held that though an administration suit may relate to land, yet its primary object is to administer the estate of the deceased and accordingly the High Court has jurisdiction to entertain the suit although the land or any part of it may be without the jurisdiction. 20. In my view since the suit filed by the plaintiff is for the purpose of administration of estate which is the primary object of filing this suit on the premise that the said deceased died intestate, though some of the properties are situate outside Grater Mumbai, Clause XII of the Letters Patent is squarely applicable to the facts of this case and upon leave being granted by this court, under Clause XII, the entire subject matter of this suit for administration of estate of the deceased can be adjudicated upon by this court. In my view prayer for division of property is consequential to the main prayer for administration of estate and determination of share of the plaintiff. Based on such prayer suit cannot be construed as a suit for land. In my view prayer for division of property is consequential to the main prayer for administration of estate and determination of share of the plaintiff. Based on such prayer suit cannot be construed as a suit for land. I am respectfully bound by the judgment of Full Bench of this Court in case of Hatimbhai Hassanally (supra) which in my view is squarely applicable to the facts of this case. 21. I am not inclined to accept the submission of Mr.Madon, learned senior counsel that the plaintiff will have to file separate suit for partition or for adjudication of title in respect of the properties situated outside Greater Mumbai. This suit is not for partition or for adjudication of title. In my view in the suit for administration of estate, since the deceased expired at Mumbai and the material cause of action has arisen at Mumbai, this court has jurisdiction to entertain this suit for letters of administration also in respect of the other properties situated outside Greater Mumbai on granting leave under Clause XII so that this court can administer all the properties of the deceased at one place i.e. at Mumbai. There is no merit in the submissions of Mr.Madon, learned senior counsel. 22. In so far as judgment of Supreme Court in case of Adcon Electronics Pvt. Ltd. (supra) relied upon by Mr.Madon, learned senior counsel is concerned, the Supreme Court has considered the case arising out of the suit for specific performance and for a decree for possession of the land. The plaintiff had claimed reliefs relating to title and for delivery of possession of land. In my view the facts of that case before the Supreme Court are totally different and thus the said judgment does not apply to the facts of this case. The said judgment is clearly distinguishable and is of no assistance to the defendants. 23. In the result, I pass the following order :- (a) Petition is made absolute in terms of prayer (a). (b) Petitioner is granted leave under Clause XII of the Letters Patent 1865 to file the present suit against the defendants in this court. (c) No order as to costs.