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2024 DIGILAW 2652 (MAD)

Muthukumaran v. M. Rajendran

2024-11-22

S.SRIMATHY

body2024
ORDER : S.Srimathy, J. The present revision petition is filed by the defendant in the suit to set aside the order dated 15.04.2024 passed in E.P.No.2 of 2017 in O.S.No.45 of 1980 on the file of the District Munsif cum Judicial Court, Rameshwaram. 2. The suit was filed for specific performance. The plaintiff, the proposed purchaser and the defendant, owner of the property had entered into a sale agreement dated 14.08.1977. Since the defendant had not come forward to execute the sale deed, the plaintiff has issued suit notice, dated 24.07.1978. In spite of receipt of the notice, the defendant did not reply. After the said sale agreement, the 1st defendant had sold to the 2nd defendant. Hence, the 2nd defendant is arrayed as one of the parties and the said sale deed will not bind the plaintiff. Further, the 1st defendant at the time of enquiry, informed that the 2nd defendant had sold another portion to the 3rd defendant on 17.11.1981, hence, the 3rd defendant is also arrayed as one of the parties and the said sale will not bind the plaintiff. The defendant had filed a written statement denying the alleged sale contracts, dated 18.04.1971, 25.02.1973, 25.02.1973, 23.05.1977, 28.07.1977, 14.08.1977 and 17.10.1977 and stated that the defendant never entered into any sale agreement with the plaintiff. The plaintiff and his father had taken the property for lease and they had never paid the lease amount. Further, there was increase in the value of the property and also there was increase in the value of value agricultural produce like cereals etc. the plaintiff admitted that they could not pay the lease amount properly. The defendant's family had put up a thatched shed in the suit property and was in possession of the same. Without reading the contents in the paper, the defendant had affixed the signature then and there. Therefore, the contents are entirely denied and the defendant prayed to dismiss the suit. 3. After framing issues based on the pleadings and documents and after hearing the rival submissions, the Trial Court had dismissed the suit. Aggrieved over the same, the plaintiff preferred an appeal in A.S.No.118 of 1985. The Appellate Court has held that Ex.A1 and Ex.A8 had been proved by the PW1. 3. After framing issues based on the pleadings and documents and after hearing the rival submissions, the Trial Court had dismissed the suit. Aggrieved over the same, the plaintiff preferred an appeal in A.S.No.118 of 1985. The Appellate Court has held that Ex.A1 and Ex.A8 had been proved by the PW1. If Ex.A1 and Ex.A2 are read with Ex.A3 and Ex.A4, an agreement with all characteristics to sell immovable property can be found and the rate was already agreed between the parties at Rs.250/- per cent and the subsequent increase in the rate is not a matter to be considered when the parties have agreed and fixed the rate for a specific extent. Therefore, the Appellate Court has held that the sale agreement is an enforceable and the plaintiff did not give up his rights by way of taking the sale deed under Ex.A6 and allowed the appeal. Aggrieved over the same, the defendant in the suit had preferred a second appeal in S.A.No.1044 of 1986 and the same was dismissed. Thereafter the plaintiff had filed E.P.No.18 of 2010 to execute the decree passed in O.S.No.45 of 1980 and the same was allowed vide order dated 17.04.2010. Thereafter, the sale deed was executed by the defendant in favour of the plaintiff and the suit had attained finality. Inspite of execution of sale deed, the defendant restrained the plaintiff from taking possession of the property. Thereafter, the plaintiff has preferred an execution petition in E.P.No.2 of 2017 and the same was allowed on 15.04.2024 directing the defendant to hand over possession on 29.04.2024. Aggrieved over the same, the present civil revision petition is filed. 4. The primary contention of the revision petitioner is that the suit was filed for the relief of specific performance but recovery of possession and mandatory injunction was not prayed for, hence, the same is hit by the proviso of Section 34 of SPECIFIC RELIEF ACT , 1963. When the law is clear that it is not permissible to claim the recovery of possession, hence the second execution petition filed for recovery of possession ought to be dismissed. The further contention of the revision petitioner is that since the recovery of possession and mandatory injunction is not prayed for in original suit, the execution Court has no jurisdiction to entertain the plea of recovery of possession from the revision petitioner. The further contention of the revision petitioner is that since the recovery of possession and mandatory injunction is not prayed for in original suit, the execution Court has no jurisdiction to entertain the plea of recovery of possession from the revision petitioner. But the Execution Court has travelled beyond the decree and had granted recovery of possession and injunction, which is erroneous. But the contention of the respondent is that in a suit for specific performance, a separate prayer for recovery of possession is not necessary. However, in a suit for partition the prayer for recovery of possession is necessary. Hence the plea of the revision petitioner is against the provisions of law. 5. The said issue was considered by the Hon'ble Supreme Court in the case of Manickam @ Thandapani and another Vs Vasantha reported in 2023 (4) CTC 690 wherein it has been categorically held that in a suit for specific performance, the possession is inherent in such suit, hence the decree holder is entitled to possession in pursuance of execution of sale deed. The relevant portion is extracted hereunder: “30. The Defendant in terms of the Agreement is bound to handover possession of the land agreed to be sold. The expression "at any stage of proceeding" is wide enough to allow the Plaintiffs to seek relief of possession even at the Appellate stage or in Execution even if such prayer was required to be claimed. This Court in Babu Lal has explained the circumstances where relief of Possession may be necessary such as in a Suit for Partition or in a case of Separate Possession, where the property conveyed is a joint property. In the Suit for Specific Performance, the possession is inherent in such Suit, therefore, we find that the Decree- holders are in fact entitled to possession in pursuance of the Sale Deed executed in their favour.” 6. In the aforesaid judgment the Hon'ble Supreme Court has referred to the judgment rendered in the case of Babu Lal Vs Hazari Lal Kishori Lal and others reported in 1982 (1) SCC 525 , and has held as under: “16. Such provision of the Act had come up for consideration before this Court in Babu Lal v. Hazari Lal Kishori Lal & ors., 1982 (1) SCC 525 , at the instance of a Purchaser pendente lite. Such provision of the Act had come up for consideration before this Court in Babu Lal v. Hazari Lal Kishori Lal & ors., 1982 (1) SCC 525 , at the instance of a Purchaser pendente lite. This Court has explained the expression "in an appropriate case" appearing in sub-section (1) of Section 22 of the Act. The Court also examined the question as to whether the relief for possession can be effectively granted to the Decree-holders where the property agreed to be conveyed is jointly held by the Defendant with other persons. In such cases, the Plaintiff must claim partition of the property and possession over the share of the Defendant. Hence, relief for possession must be specifically pleaded in these particular cases. This Court held that as against the third person, a Decree for possession must be specifically claimed as such a person is not bound by the Contract to be enforced. The argument that the Plaintiff must claim possession in a Suit for Specific Performance of a Contract in all cases was also negated as Section 22 talks about the relief of possession in appropriate case. This Court addressed the history of the provision so enacted and held as under: "11. Section 22 enacts a rule of pleading. The legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the Plaintiff may claim a Decree for possession in a Suit for Specific Performance, even though strictly speaking, the right to possession accrues only when Suit for Specific Performance is decreed. The legislature has now made a Statutory provision enabling the Plaintiff to ask for possession in the Suit for Specific Performance and empowering the Court to provide in the Decree itself that upon payment by the Plaintiff of the consideration money within the given time, the Defendant should execute the deed and put the Plaintiff in possession. 13. The expression in sub-section (1) of Section 22 "in an appropriate case" is very significant. The Plaintiff may ask for the relief of possession or partition or separate possession "in an appropriate case". 13. The expression in sub-section (1) of Section 22 "in an appropriate case" is very significant. The Plaintiff may ask for the relief of possession or partition or separate possession "in an appropriate case". As pointed out earlier, in view of Order 2, Rule 2 of the Code of Civil Procedure, some doubt was entertained whether the relief for Specific Performance and partition and possession could be combined in one Suit; one view being that the cause of action for claiming relief for Partition and Possession could accrue to the Plaintiff only after he acquired title to the property on the execution of a Sale Deed in his favour and since the relief for Specific Performance of the Contract for Sale was not based on the same cause of action as the relief for Partition and Possession, the two reliefs could not be combined in one Suit......... 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 Transfer of Property 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. 14. There may be circumstances in which a relief for possession cannot be effectively granted to the Decree-holder without specifically claiming relief for possession viz. where the property agreed to be conveyed is jointly held by the Defendant with other persons. In such a case the Plaintiff in order to obtain complete and effective relief must claim Partition of the property and Possession over the share of the Defendant. It is in such cases that a relief for Possession must be specifically pleaded. 16. ...It may not always be necessary for the Plaintiff to specifically claim Possession over the property, the relief of Possession being inherent in the relief for Specific Performance of the Contract of Sale. It is in such cases that a relief for Possession must be specifically pleaded. 16. ...It may not always be necessary for the Plaintiff to specifically claim Possession over the property, the relief of Possession being inherent in the relief for Specific Performance of the Contract of Sale. Besides, the Proviso to sub- section (2) of Section 22 provides for amendment of the Plaint on such terms as may be just for including a claim for such relief "at any stage of the proceeding". 7. The various High Courts had taken a view even before the said judgment rendered in Babu Lal’s case that the principle that the relief for possession is inherent in the relief of specific performance of the contract for sale and that in execution of a decree for specific performance, the decree holder is entitled to possession over the property even if no such relief was specifically claimed in the suit or granted under the decree. Therefore, by relying on the aforesaid judgment, this Court is of the considered opinion that the plea raised by the revision petitioner that in the suit for specific performance, recovery of possession cannot be granted is erroneous and the said plea is against the provisions of the Act and also against the dictum laid down in the aforesaid judgment. 8. Even though the revision petitioner has raised the plea of limitation, the same was not canvassed. However, it is seen that the execution petition is filed only for recovery of possession. Earlier, the plaintiff had already filed execution petition in time for execution of sale deed. The present execution petition is only for the recovery of possession therefore, the plea of limitation cannot be sustained. Hence, the said plea is also rejected. 9. For the reasons stated above the Civil Revision Petition is liable to be dismissed and accordingly dismissed. The revision petitioner is directed to hand over possession to the defendant on or before 30.12.2024. No costs. Consequently, connected miscellaneous petition is closed.