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2014 DIGILAW 273 (AP)

Pasupuleti Rangamma v. Pasupuleti Ranganayakulu

2014-02-21

C.V.NAGARJUNA REDDY

body2014
Judgment : This second appeal arises out of judgment and decree dated 02.03.2012 in A.S.No.78 of 2010 on the file of the learned VI Additional District Judge, Markapur, whereby he has confirmed the judgment and decree dated 23.11.2009 in O.S.No.69 of 2006 on the file of the learned Senior Civil Judge, Markapur. I have heard Mr. Sai Gangadhar Chamarty, learned counsel for the appellant, and Mr. V. Mallik, learned counsel for the respondent. The appellant is the defendant and respondent is the plaintiff in O.S.No.69 of 2006. For convenience, the parties are referred to as they are arrayed in the suit. The plaintiff filed the above-mentioned suit for specific performance of agreement of sale of the suit schedule of properties. The case of the plaintiff is that the defendant is his sister-in-law i.e. his brother’s wife, that his father, during his lifetime, has borrowed certain money under mortgage and that the plaintiff has discharged the said mortgage from out of his personal money. That in consideration of the same, the plaintiff’s brother, the husband of the defendant, orally relinquished his right over the suit schedule properties and that after the death of the plaintiff’s brother, his wife i.e. the defendant has executed the agreement of sale agreeing to sell the suit schedule properties to the plaintiff. As the defendant failed to execute and register the sale deed, the plaintiff filed the suit for specific performance of agreement of sale. The suit was originally filed on the file of the Junior Civil Judge, Giddalur, and numbered as O.S.No.113 of 2000, and subsequently it was transferred to the Court of Senior Civil Judge, Markapur, and re-numbered as O.S.No.69 of 2006. During the pendency of the said suit, the two daughters of the defendant filed O.S.No.21 of 2002 for partition of plaint A and B schedule properties in four equal shares by metes and bounds and put the plaintiffs and defendant No.2 therein (the defendant in O.S.No.69 of 2006) in separate possession of their respective shares. Both the suits were tried together by holding a joint trial. Both the suits were tried together by holding a joint trial. By a common judgment dated 23.11.2009, the trial Court decreed O.S.No.21 of 2002 in favour of the daughters of the defendant, by passing a decree for partition of the suit schedule properties into six equal shares and allotting 1/6th share each to the plaintiffs and defendant No.2 therein and 3/6th share to defendant No.1 therein (plaintiff in O.S.No.69 of 2006). The trial Court decreed O.S.No.69 of 2006 in part, by directing the defendant to execute registered sale deed in favour of the plaintiff in respect of 1/3rd share allotted to her. Feeling aggrieved by the judgment and decree in O.S.No.69 of 2006, the defendant has filed A.S.No.78 of 2010, while the plaintiff has filed A.S.No.58 of 2010 against the judgment and decree in O.S.No.21 of 2002. Both the appeals were dismissed by a common judgment dated 02.03.2012 by the learned VI Additional District Judge, Markapur. While the plaintiff has not carried the matter further against the decree and judgment in A.S.No.58 of 2010, the defendant has filed the present appeal against the judgment and decree in A.S.No.78 of 2010. At the hearing, Mr. Sai Gangadhar Chamarty, learned counsel for the appellant-defendant, while fairly refraining from touching on the factual aspects relating to the genuineness or otherwise of the suit agreement of sale, in view of the concurrent findings rendered by both the Courts below on the analysis of the oral and documentary evidence, has, however, sought to raise a legal issue, namely; that the decree passed in favour of the plaintiff in O.S.No.69 of 2006 is contrary to the provisions of Section 22(2) of the Specific Relief Act, 1963 (for short ‘the Act’). He has submitted that a person suing for specific performance of contract for the transfer of immovable property may, in an appropriate case, ask for partition and separate possession of the property in addition to such performance or any other relief to which he is entitled including the refund of any earnest money or deposit paid by him, in case his claim for specific performance is refused. Under sub-section 2 thereof, the learned counsel argued, no such relief as referred to above shall be granted by the Court unless it has been specifically claimed. Under sub-section 2 thereof, the learned counsel argued, no such relief as referred to above shall be granted by the Court unless it has been specifically claimed. The learned counsel urged that the plaintiff has claimed the specific performance of agreement of sale in respect of the entire suit schedule properties and he has not claimed any partition to the extent of share of the defendant and that, therefore, the decree is in the teeth of the above-mentioned provision. In order to consider these submissions, the provisions of Section 22 of the Act need to be considered. This provision reads thus: “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; or (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.” From the above reproduced provision, it is evident that if the plaintiff in a suit for specific performance wants any relief as enumerated in clauses (a) and (b) of sub-section (1) of Section 22 of the Act, in addition to the relief of specific performance, no decree for such relief can be granted by the Court unless the same is specifically claimed. A perusal of the decree shows that the trial Court has partly decreed the suit only to the extent of 1/6th share of the suit schedule properties, which fell to the share of the defendant. A perusal of the decree shows that the trial Court has partly decreed the suit only to the extent of 1/6th share of the suit schedule properties, which fell to the share of the defendant. Thus, the decree was passed only for specific performance. No relief other than the specific performance has either been claimed by the plaintiff or granted by the trial Court. Though the plaintiff claimed a larger relief, namely; decree for specific performance in respect of all the suit schedule properties, the trial Court has granted a lesser relief by restricting the decree for specific performance only to the extent of the share of the defendant following the decree for partition in O.S.No.21 of 2002. Therefore, such decree for a lesser relief does not fall within the expression “any other relief” in clause (b) of sub-section (1) of Section 22 of the Act. As the plaintiff has not claimed any other relief including the one for partition or separate possession nor the trial Court has granted any such relief other than specific performance, the decree granted in favour of the plaintiff is not contrary to the provisions of Section 22 of the Act. No other point has been argued by the learned counsel for the appellant. For the above-mentioned reasons, I do not find any merit in this second appeal and the same is accordingly dismissed.