Bata Shoe Co. vs Preetamdas and others

G.L. Oza, J.—This appeal has been preferred by the judgment-debtor-appellant against the order passed by the Additional District Judge, Gwalior, in Case No. 7-A/1964-73 (Execution), dated 13th May 1976, directing delivery of possession to the respondent in execution of the decree for specific performance.

It is not disputed that as no stay was granted in this appeal, the possession has already been handed over to the respondent, but it was stated on behalf of the appellant that this possession was handed over when a warrant was issued for possession subject to the decision of this appeal.

The facts necessary for disposal of this appeal are that the property originally belonged to one Hidayatullah. His son, Hasmatullah was acting as a Mukhtiyar on behalf of his father. It is not in dispute that this property consisted of shop and residential accommodation and the appellant Bata Shoe Co. was the tenant in a shop in this building where as the respondent was also a tenant in one of the shops. It is alleged that on 30-11-1958, Hasmatullah representing himself to be Mukhtiyar holding a power of attorney from his father Hidayatullah entered into an oral agreement with the plaintiff-respondent for purchase of the property in dispute and took certain amount as an advance. On 21-12-1958, this Hasmatullah, showing the power of attorney in his favour to the plaintiff-respondent entered into a written contract for sale of the property in dispute in favour of the plaintiff-respondent. The plaintiff-respondent, therefore, filed this suit for specific performance and also for delivery of possession against the legal representatives of late Hidayatullah and also Bata Shoe Co., the present appellant, who claimed to have obtained a sale-deed in their favour of the suit property on 28th March, 1959. It was also alleged that before the sale-deed was executed a notice dated 24-1-59 was published in the news papers by the plaintiff-respondent about the intended purchase of this property and in response to this notice the present appellant Bata Shoe Co., issued a notice to the plaintiff-respondent that they had an agreement in their favour for purchase of this property. This notice given by the defendant was on the basis of the notice published in the press. In this suit filed by the plaintiff-respondent, the appellant-defendant contended that on the basis of two agreements dated 17-10-58 and 18-11-58 the property was sold by a registered sale-deed to the appellant Bata Shoe Co on 28-3-59, and therefore, they have acquired title thereto.

The plaintiff-respondent because of this sale-deed in favour of the appellant Bata Shoe Co. dated 28-3-59 joined the appellant also as defendant in the suit and claimed as they had a prior agreement in their favour a decree for specific performance not only against the legal representatives of late Hidayatullah but also against the appellant Bata Shoe Co. This suit ultimately ended in a decree for specific performance in favour of the respondent. After the judgment of this Court in First Appeal No. 27/65 (Pritamdas v. Mst. Akbari and others) where originally on the basis of a difference of opinion the matter was referred to a third judge and ultimately on the basis of the opinion of the learned third Judge this Court held the agreement in favour of the appellant Bata Shoe Co. was a mere manipulation and, therefore, held that there was a prior agreement in favour of the plaintiff-respondent, and, therefore, a decree for specific performance was granted in favour of the plaintiff-respondent against the legal representatives of the deceased Hidayatullah and also against the present appellant Bata Shoe Company.

After this decree was passed by this Court, the respondent-plaintiff filed an execution and in execution of that decree ultimately a sale-deed was executed in favour of the plaintiff-respondent by the Court and also a direction for delivery of possession was made and it is against this direction of delivery of possession was made and it is against this direction of delivery of possession that the present appeal has been filed by the Bata Shoe Company, the appellant.

The earned counsel appearing for the appellant contented that during the pendency of the suit the specific Relief Act was amended and, therefore, it was contended that this Act of 1963 which is now the Specific Relief Act will be applicable as section 44 of this Act which provides for repeal does not provide for any ''Saving'' clause, and it was contended that the amended Specific Relief Act in section 22 provides that possession of he property could be sought as a relief in addition to the relief of specific performance but that relief should be specifically asked for in the plaint and it was contended by the learned counsel that such a relief was not sought by the plaintiff-respondent and the decree which was ultimately granted also did not contain a direction for the delivery of possession. The learned counsel however, frankly conceded that in the plaint it was stated that possession be given in accordance with law. But according to the haired counsel it was rot what should have been stated What was stated in the plaint is as follows:--

Wa jaydad ka Kabja vidhivat dilayejane Ki decree di jaye.

It was also contended by the learned counsel that apart from the prayer in the plaint the decree which was ultimately passed does not contain such a direction. In the absence of such a direction the possession could not have been given to the plaintiff-respondent in execution of a decree which was only for specific performance of a contract. The learned counsel contended that decision reported in Brijmohan v. Chandrabhaga Bai AIR 1948 Nag at p. 406 is a clear case in his favour with regard to this question. But, he also frankly conceded that Dadulal Hanumalala v. Smt. Deo Kunwar Bai 1963 JLJ 234 : AIR 1963 MP 6, took a contrary view. The learned counsel also referred to the decisions reported in I.T. Commissioner v. Pratapsingh AIR 1961 SC 1026 and Kalawati Devi v. I.T. Commissioner, W.B. AIR 1968 SC 1622. It was also contended that the executing Court could not go behind the decree and if in the decree no direction for delivery of possession was issued, the executing Court cannot now in execution of the decree grant a new relief which was not granted earlier in the decree itself. It was also contended that what is stated in the plaint in the prayer clause, quoted above, it is considered to be a sufficient compliance of section 22 of the Specific Relief Act. Then such a direction not having been included in the decree clearly goes to show that this prayer was not granted, and therefore, it is a further reason for the executing Court not to have granted this relief when it was impliedly rejected. As such, a relief was not granted in the decree itself.

It was contended by the learned counsel that part from this contention he has yet another objection to the grant of this relief. According to him, section 111(d) of the Transfer of Property Act provided for the doctrine of merger out as the taken fovour of the appellant was held to be voidable within the language as used by their lordships of the Supreme Court in the decision reported in Lala Durga Prasad and Another Vs. Lala Deep Chand and Others, , But, the tenancy rights in favour of the appellant survive and, therefore, the possession that could be delivered to the plaintiff-respondent would only be a symbolic and actual possession could not be delivered. It was contended that if the doctrine of ''merger'' as contemplated in section S. 111 (d) of the Transfer of Property Act, or ''surrender'' as contemplated in Clauses (e) and (f) of section 111 of the Transfer of Property Act is considered still the sale in favour of the appellant was held not to be good as it was not based on a prior agreement, the original rights of the appellant, that is, the rights of a tenant, will revive as the sale-deed is not good, and, therefore, actual possession could not be handed over to the respondent in execution of the decree. The learned counsel placed reliance on a decision reported in Motilal v. Gopikrishna 1960 JLJ 934 and also on a short-Note 320 noted in Murarilal v. Kapurchand 1960 JLJ SN 320. He also placed reliance on a decision reported in Ramrao v. Pehimal 1963 JLJ 641 and also on Short-Note 36 noted in Ramgopal v. Gajadhar 1963 JLJ SN 36.

The learned counsel for the respondent on the other hand contended that it is not disputed that the appellant was a tenant originally, but by a registered sale-deed dated 28th March 1959 the respondent obtained a sale-deed of the property in dispute and thereby he became the landlord himself. In this view of matter, in view of section 111 (d) of the Transfer of Property Act, the rights as a tenant came to an end as he obtained a sale-deed in his favour and thereby acquired title. It was contended that the question of Clauses (e) and (f) of section 111 of the Transfer of Property Act did not arise in the present case. It was contended by the learned counsel that the question of sale in favour of the appellant being bad does not arise in the present case. According to him what this Court ultimately held while decreeing the suit of the plaintiff-respondent was not that the sale in favour of the appellant was bed in law or was void, but it was held that as he had acquired the property under a valid sale but this was done having knowledge of a prior agreement in favour of the plaintiff-respondent and therefore, a decree for specific performance was granted not only against the vendor of the plaintiff respondent but also against the present-appellant so that the title which be had acquired under the sale in his favour dated 28th March 1959, also is conveyed in favour of the plaintiff respondent. It was, therefore, contended that it is not a case of sale having been found to be bad and, therefore, revival of the right of the appellant as a tenant nor is it a case of a mortgage where on redemption it could be contended that the original rights of a tenant survive. It was contended by the learned counsel that it will not be useful to refer cases on mortgages as clearly the present case is only a case of sale, and it is not held that the sale in favour of the appellant is void or bad in law. On the contrary when a decree for specific performance is granted against the appellant also, it is because that he had acquired a good title but as he had acquired his title with notice of prior agreement in view of the provisions contained in the Specific Relief Act he also could be directed to execute a sale-deed in favour of the plaintiff-respondent and That is what has been done in this case. The learned counsel in support of his contention placed reliance on decisions reported in A. Lakshmanarao Vs. Judicial Magistrate, First Class, Parvatipuram and Others, , Ramesh Chandra Chandoie and another v. Chuni Lal Sabharwal AIR 1971 SC 1218, and Shah Mathuradas Maganlal and Co. Vs. Nagappa Shankarappa Malage and Others, . It was also contended by the learned counsel that even the decision reported in Lala Durga Prasad and Another Vs. Lala Deep Chand and Others, on which reliance is placed by the learned counsel for the appellant is clear and it only lays down that a decree for specific performance in such a case where inspite of a prior agreement there is a subsequent sale in favour of a third party, the decree could be granted not only against the vendor but also against the third party so that the third party could also convey his title to the holder of a prior agreement. The use of the term ''sale voidable'' cannot be made use of and a contention on the assumption that the sale has been held to be void cannot be advanced.

It was also contended that when a decree is granted for specific performance it contemplates that what the vendor is expected to do u/s 55 of the Transfer of Property Act, he could be directed to do and therefore, it could not be said that when a decree is only for a specific performance a direction for delivery of possession could not be given. It was contended that it has been consistently held that a decree for specific performance is a kind of a ''preliminary decree'' and the execution could continue till what under the agreement is expected to be done is completed, and, therefore, in execution of a decree for specific performance, a direction for delivery of possession could not be said to be a relief which was not granted in the decree itself. The learned counsel placed reliance on decisions reported in H.I. Trust v. Haridas Mundhra AIR 1972 SC 1826 , Abdul Shaker Sahib Vs. Abdul Rahiman Sahib and Another, , Bhavan Vaja and Others Vs. Solanki Hanuji Khodaji Mansang and Another, , Sundara Ramanujam Naidu Vs. Sivalingam Pillai and Another, , It was also contended that it is this which has been provided in Order 21, rule 32 CPC. and there are series of decisions which go to show that such a relief could be granted in decree for specific performance. The list of such case, according to the learned Counsel is:--

Ramji Lal and Others Vs. Ram Pershad and Another, , Narayana Pillai Krishna Pillai v. Ponnuswami Chettiar Subbalekshmi Ammal AIR 1978 Kerala (sic) , Gyasa Vs. Smt. Risalo, , Arjun Singh Vs. Sahu Maharaj Narain, , Janardan Kishorelal v. Girdharilal AIR 1951 Patna 701, Kartik Chandra Pal v. Dibakar AIR 1952 Cal 312, and Subodh Kumar Banerjee Vs. Hiramoni Dasi and Others, , Reliance was also placed on decisions reported in Appa Rao v. Veeranna AIR 1953 Mad (sic), and Chamarti Suryaprakasarayudu Vs. Arardhi Lakshminarasimha Charlu and Others, .

It was also contended that the direction for delivery of possession is considered as a consequence of the decree for specific performance. It was contended by the learned counsel that the decision in which it has been held that after the sale-deed is executed, a subsequent suit for possession is not barred under Order 2, rule 2 of the Code of Civil Procedure, cannot be used as an authority for the proposition that a direction for possession could not be granted in execution of the decree for specific performance. But, according to him if possession is not delivered and a deed is executed in execution of the decree for specific performance, a fresh cause of action arises and, therefore, such a fresh suit could not be hit by Order 2, rule 2 of the Code of Civil Procedure, but on the basis of those decisions which were referred to by the learned counsel for the appellant, it could not be contended that, therefore, a direction for deliver of possession could not be granted Learned counsel placed reliance on decisions reported in Reoti Saran Vs. Hargu Lal, , Balaprasad Asaram v. Asmabi AIR 1954 Nag 328, AIR 1929 298 (Nagpur) .

It was also contended that if the present appellant wanted to raise a plea that because of the sale in his favour being bad, the right as a tenant survives, it was for the appellant to raise such a plea in the written statement and then the question about survival of this right might have been gone into, but no such plea was raised. On the contrary, it was contended that the suit filed by the plaintiff-respondent was contested on a ground that the appellant by sale in his favour has acquired his own title and, therefore, the suit for specific performance could not be decreed. It was, therefore, contended that the appeal has no substance and deserves to be dismissed.

The learned counsel for the appellant contended that in Lala Durga Prasad and Another Vs. Lala Deep Chand and Others, , on which reliance was also placed by him earlier, clearly lays down that in case where a third party has purchased the property subsequent to the agreement in favour of the plaintiff, the sale in favour of the third party is voidable and it is because of this that their Lordships upheld a consistent rule of grant of a decree even against a third party purchaser so that he could convey title, which he had acquired, in favour of the plaintiff, and therefore it was contended that as soon as the title which was acquired by the third party purchaser is reconveyed to the plaintiff What this third party had before the transfer in his favour will automatically revive, and, according to the learned counsel, as it is not in dispute that before the sale in favour of the defendant on 28th March 1959, the appellant was a tenant of the original vendor and, therefore, when under this decree he is directed to convey the title which he had acquired in favour of the plaintiff-respondent, the rights of tenancy in his favour which were in existence even before the sale-deed was executed will automatically be saved, and therefore, the actual physical possession could not be transferred to the plaintiff-respondent. The learned counsel in addition to Lala Durga Prasad and Another Vs. Lala Deep Chand and Others, , also placed reliance on Shah Mathuradas Maganlal and Co. Vs. Nagappa Shankarappa Malage and Others, , to which he earlier referred to, and AIR 1931 SC 67, Kafiladdin v. Samiraddin. He also referred to decisions in Soni Lalji Jetha and Others Vs. Soni Kalidas Devchand and Others, , and Bhavan Vaja and Others Vs. Solanki Hanuji Khodaji Mansang and Another, . It was also contended by the learned counsel that it was not necessary for the defendant-appellant to raise a plea of revival of his tenancy rights as it is not in dispute that the defendant-appellant was a tenant before the sale-deed was executed in his favour and as this sale-deed in his favour was itself in shadow being challenged by the plaintiff-respondent, the question of revival or survival of his tenancy rights emerges from the pleadings as it stand and this being only a legal question it could not be said that specific plea was not raised. He, therefore, contended that the appeal deserves to be allowed and the order passed by the learned Court below directing delivery of possession deserves to be set aside.

It is not in dispute that late Hidayatullah was the original owner of the property. It is also not in dispute that Hasmatullah, his son, was holding power of attorney in his favour and was managing the property. It is also not in dispute that this property consists of some shops and residential accommodation and the appellant-defendants as well as the plaintiff were the tenants in the shops. It is also not in dispute that before the sale-deed was executed in favour of the appellant-defendant on 28th March 1959, he was a tenant in a shop of the property in dispute. It is also clear from the judgment of this Court that what was being challenged in the suit was not a sale-deed being void or bad but a challenge was to the agreement in favour of the appellant-defendant which apparently appeared to be prior in time. It was ultimately held that this agreement was a mere manipulation and, therefore, the appellant defendant had no agreement prior in time in his favour as compared to the agreement executed by the vendor in favour of the plaintiff-respondent and as it was also held that the plaintiff-respondent had a prior agreement in his favour and thus the appellant-defendant acquired the property by sale on 28th March 1959, inspite of the notice he had of the prior agreement in favour of the plaintiff-respondent, he is also liable in a suit for specific performance to execute a deed transferring his title in favour of the plaintiff-respondent. It is, therefore, clear that, what has been held by this Court while granting a decree under the Specific Relief Act is not that the sale in favour of the appellant-defendant is bad or void, but on the contrary, it has been held to be a good sale conveying a good title in favour of the appellant-defendant and that is why a direction has also been given against the defendant appellant to execute a deed in favour of the plaintiff-respondent so that title which he had acquired will be reconveyed to the plaintiff-respondent

It is also not in dispute that in the prayer clause of the plaint what was stated is which has been quoted above in Hindi and it, therefore, could not be said that the prayer for delivery of possession was not specifically made in the plaint as is contemplated in section 22 of Clause 1 (b) of the Act. To quote:--

(1) Not withstanding anything to the contrary contained in the Code of Civil Procedure, 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;

A reading of what has been quoted in the prayer clause of the plaint, quoted above, satisfy the requirements of section 22(1) (a) of the Act.

It is also not in dispute that the decree for specific performance granted by this Court it does not contain a direction for delivery of possession, but it also clear that the judgment of this Court nowhere indicates that the prayer for delivery of possession was rejected. It is, therefore, clear that when a decree for specific performance is granted it could not be said that the prayer for delivery of possession which was made was rejected. It is, therefore, clear that two questions which arises in this appeal for consideration are as under:--

(1) When a decree for specific performance does rot contain a direction for delivery of possession whether such a direction could be issued in execution of that decree?

(2) When a tenant purchases the property and acquires title of his landlord whether it could be said that the tenants right survives inspire of section 111(d) of the Transfer of Property Act, and even of by the decree for specific performance if such a purchaser is directed to convey the property which he has acquired in favour of the plaintiff, could it be said that when the title is conveyed, under the decree, the original rights of a tenant are revived inspite of the language of Clause (d) of section 111 of the Transfer of Property Act?

No other question arise in this appeal.

It is not in dispute, in view of section 22(1) (a) of the Specific Relief Act, quoted above that where a specific prayer for possession is made the relief could be granted and as stated earlier, a prayer was made. Therefore, the objection about the absence of a prayer cannot be accepted.

The next objection is that as the decree is only for specific performance, but does not contain a direction for delivers of possession, the delivery of possession could not be ordered by the Court below. The case on which reliance is placed by the learned Counsel is a case reported in one AIR 1948 406 (Nagpur) . It would be relevant for considering this case that the decree which was the subject matter of consideration in this decision, the relevant portion of the decree has been quoted by the learned Judge in his judgment and it reads;--

It is ordered that the plaintiff do deposit is Court for payment to the defendant on or before 28-8-34 the sum of Rs. 2,402-12-0 and it is further ordered that the plaintiff do produce and file in Court the necessary stamp paper for the execution of sale-deed on or before 28-8-34. It is further decreed that on the plaintiffs doing this the defendant shall execute the necessary sale-deed convening the house described below to the plaintiff and shall get it registered at the cost of the plaintiff, and that the SUM of Rs. 386-4-0, be paid by the defendant to the plaintiff on account of costs of this suit in case plaintiff does not deduct this sum from the sale price.

It is, therefore, clear that in this decree there was a specific direction for execution and registration of a sale-deed only, and the learned Judge came to the conclusion that a direction for delivery of possession could not be given. The learned counsel also referred to another decision reported in Dadulal Hanumanlala v. Deo Kunwar 1963 JLJ 234 which has taken a contrary view. In this decision Order 21, rule 32, C.P.C. read with rule 34 thereof were specifically considered and it was held that a decree-holder is entitled to a direction for delivery of possession in execution of a decree for specific performance. It was contended by the learned counsel for the appellant that there appears to be a conflict in these two decisions This conflict has been settled by a Division Bench of this Court in L.P.A. No. 6 of 1968, decided on 30-11-71, and it has now been held by this Court in that decision as under:--

Thus, not only there was a specific stipulation in the agreement of sale about delivery of possession but also there was a specific prayer in the relief clause of the plaint. However, it appears that the learned Addl. District Judge merely mentioned that specific performance was being granted. Therefore, the question arises whether the relief of delivery of possession should be deemed to have been refused. It is true that ordinarily where the Court does not grant a particular relief, it ought to be deemed to have been refused. But, in the present case in view of the specific clause in the agreement of sale and a specific prayer in the relief clause of the plaint, the Court, in our opinion, will be deemed to have granted all the relief clause claimed by the plaintiff in the plaint when no part of the plaintiff''s claim was dismissed by the trial Judge and the suit was decreed in its entirety. The omission to mention the relief of delivery of possession under such circumstances will, in our opinion, not be fatal to the plaintiff''s case that he has been given all the reliefs claimed in the plaint. Thus, the controversy which was there prior to the coming into force of the Specific Relief Act, 1963, would not arise in the present case and it is no more necessary to resolve the conflict of views in the present appeal. But considered as a whole, we feel that the learned Single Judge was right in holding that the Executing Court under the circumstances was empowered to deliver possession of the property to the respondent. In this view of the matter, the judgment-debtor appellant''s objection was rightly rejected and we see no reason to take a different view.

The learned counsel for the defendant-appellant refers to the decisions reported in I.T. Commissioner B & O v. Pratapsingh AIR 1961 SC 1026, Kalawati Devi Harlalka Vs. Commissioner of Income Tax, West Bengal and Others, , only for the purpose that in view of the repealed provisions in the Specific Relief Act of 1963, it is only the new Act that would be applicable and as discussed above, it is not in dispute that it will be the New Act which will be applicable and in view of that it is not necessary to go into these decisions.

The learned counsel for the respondent on the other hand contended that a decree for specific performance is a ''preliminary decree'' and it could not be said that after the sale-deed is executed, the Court became Functus officio. It can issue further direction for delivery of possession in order to complete the contract. The learned counsel placed reliance on a decision reported in Bhavan Vaja and Others Vs. Solanki Hanuji Khodaji Mansang and Another, . In this decision it was observed:--

It is true that an executing Court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleading as well as the proceedings leading upto the decree. In order to find put the meaning of the words employed in decree the Court often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution. Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution Court in this case thought that its jurisdiction began and ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings by well as the earlier judgments rendered, by the Board as well as by the appellate Court had been placed, before it, the execution Court does not appear to have considered those documents. And, in H.I. Trusty v. Haridas Mundhra and others, AIR 1972 SC 1826 this, question has been considered in the light of the, provisions of the specific Relief Act and Order 21, rule 32 CPC and it was observed in this case:--

As the Court retained control over the matter despite the decree, it was open to the Court, when it was alleged that the party moved against, has positively refused to complete the contract to entertain the application and order rescission of the decree if the allegation was proved We, therefore, think that the application of the appellant was competent.

And further in view of Order 21, rule 32 it has been laid down:--

The execution of a decree for specific performance can only be in the manner prescribed by this rule, Sub-Rule (1) of the rule says that if a decree for specific performance is not obeyed, the decree is to be enforced by the detention of the party in default in the civil prison or by attachment of his property or by both. The detention in'' the civil prison of the party who failed to obey the decree and the attachment of his property are simply the means to compel him to obey the decree. That is made clear by Sub-rule (3) which says that if the judgment-debtor has failed to obey the decree, when the attachment has remained in force for one year the property attached may be sold and out of the proceeds the decree-holder may be awarded such compensation as the Court thinks fit. Sub-rule (5) which provides that the Court may direct the act required to be done may be done by the decree-holder or some other person appointed by the Court can only refer to an act other than an act of payment of money. We do not think that the appellant could have executed the decree against Mundhra as a money decree and realised the purchase-money from him. Therefore, if Mundhra refused to pay the purchase-money, there was nothing which prevented the appellant from applying for rescission of the degree.

It is, therefore, clear that while executing the decree for specific performance, the Court is not only concerned with the execution of the deed only but a further step in the light of section 55 on the Transfer of property Act also to be directed. In Union of India (UOI) Vs. Nalini Ranjan Guha, , the question of the direction for delivery of possession in a decree for specific performance was specifically considered and the Division Bench of the Calcutta High Court held:--

If then the decree is nor to be limited only to the matters specifically mentioned therein but to all other steps which ought to be taken for giving full effect to the decree for specific performance, the next question which arises is whether or not the judgment-debtor is bound to give delivery of possession to the plaintiff in order to give full effect to the decree for specific performance; in other words, does specific performance of a contract include delivery of possession by the vendor to the purchaser ? For this purpose reference has to be made to section 55 T.P. Act which inter alia lays down as follows: ''In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities and have the rights mentioned in the rules next following or such of them as are applicable to the property sold (f) to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits.

And, the long list of cases starting with AIR 1979 Delhi 1-9, AIR 195(sic) Cal 9. (sic), go to show that this has been the consistent view in various High Courts and as stated earlier, a Division Bench of this Court also in view of section 22 of the Specific Relief Act took the same view. Under these circumstances, therefore, the contention advanced by the learned counsel for the appellant that when the decree was for only specific performance, a direction for possession could not be issued, cannot be accepted.

As regards the second contention, as stated earlier, it is not in dispute that the appellant-defendant purchased the property in dispute by a registered deed dated 28th March 1969, and that the decree granted for specific performance is also against the appellant-defendant and the appellant-defendant in compliance with the decree is expected to transfer the property in dispute in favour of the plaintiff-respondent by a registered document. It is also clear that the sale in favour of the defendant-appellant is not held to be void, but the argument advanced by the learned counsel for the appellant is on the basis of the language used in Durga Prasad and another v. Beep Chand and others AIR 1974 SC 75. In this decision, the teamed counsel placed reliance on a passage contained in paragraph 39 which reads as under:--

Section 91 of the Trusts Act does not make the subsequent purchaser with notice a trustee properly so called but saddles him with an obligation in the nature of a trust (because of section 80) and directs that he must hold the property for the benefit of the prior "contractor" if we may so describe the plaintiff, "to the extent necessary to give effect to the contract." Section 3 (illustration ''g'') of the Specific Relief Act makes him a trustee for the plaintiff, but only for the purposes of that Act. Section 40 of the Transfer of Property Act enacts that this obligation can be enforced against a subsequent transferee with notice but not against one who holds for consideration and without notice. Section 27 of the Specific Relief Act does not carry the matter any further. All it says is that specific performance may be enforced against.

(a) either party there to;

(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. None of this helps because none of these provisions directly relate to the form of the decree. It will, therefore, be necessary to analyse each form in the light of other provisions of Law.

It was further observed:--

First we reach the position that the title to the property has validly passed from the vendor and resides in the subsequent transferee. The sale to him is not void but only voidable at the option of the earlier ''contractor''. As the title no longer rests in the vendor it would be illogical from a convincing point of view to compel him to convey to the plaintiff unless steps are taken to revest the title in him, either by cancellation of the subsequent sale or by reconveyance from the subsequent purchaser to him. We do not know of any Case in which a reconveyance to the vendor was ordered but Sulaiman C.J. adopted the other course in Kali Charan Singh and Another Vs. Janak Deo Singh and Others .

(B) He directed cancellation of the subsequent sale and conveyance to the plaintiff by the vendor in accordance with the contract of sale of which the plaintiff sought specific performance. But though this sounds logical the objection to it is that it might bring him its train complications between the vendor and the subsequent purchaser. There may be covenants in the deed between them which it would be inequitable to disturb by cancellation of their deed. Accordingly, we do not think that is a desirable solution.

In this case what has been observed is, that the subsequent purchaser in Whom title now resides the sale is not void but only Voidable at the option of the earlier contractor, but except these words, there is nothing on the basis of which it could be contended that such a subsequent sale will be void. Their Lordships further clearly laid down the course which is to be followed while; granting a decree for specific performance in this case and it was held:--

In our opinion the proper form of decree is to direct, specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join him the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff This was the course followed by the, Calcutta High Court in Kafiladdin and Others Vs. Samiraddin and Others, and appears to be the English practice S.e. Fry on Specific Performance, 6th Edn. Page 90, Paragraph 207; also-''Potter v. Sanders'' (1846) 67 ER 1057 (d). We direct accordingly.

And, that is what exactly is done in the present case. It is, therefore, clear that there is nothing in this decision which could help the learned counsel for the appellant to come to a conclusion that the sale in favour of the appellant-defendant could be said to fee void. In fact a direction to the appellant also to join the vendor in executing a sale-deed in favour of the plaintiff-respondent itself indicates that he had the valid title which he conveys by sale. An attempt was made by the learned counsel to contend that the appellant was a tenant originally. He acquired the property by purchase by a registered, sale-deed dated 28th March 1959 and that under this decree for specific performance he conveys the property in favour of the plaintiff-respondent, what he had acquired on 28-3-59, he, conveys back to the plaintiff-respondent, but what he had earlier will revive when he is deprived of his right which he has acquired under the, sale-deed dated 28-3-59. This contention cannot be accepted as it could not be contemplated that when the appellant became the owner of the property he continues thereafter as an owner and also as a tenant. The two rights could not simultaneously co-exist. He could not be his own landlord i.e. what has been specifically provided for in section 111 (d) of the Transfer of Property Act, which reads as under:--

A lease of immovable property determines--

(a)... ... ... ...

(b)... ... ... ...

(c)... ... ... ...

(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right.

This section provides for the conditions when the lease of an immovable, property determines and clause (d) provides for one of such contingencies and that it is when the interests of a lessee and a lessor vests at the same time in one person in the same right and that is what has happened in the present case. On 28-3-79, when the appellant-defendant who was a tenant till then, purchased the property and became the owner thereof and as soon as he became an owner, the rights under the lease came to an end. It, therefore, cannot be contended that he transferred his rights or interests as an owner and his rights or interest as lessee survives because they had already come to on end. The learned counsel for the appellant has relied on Motilal v. Gopikrishna 1960 JLJ 394. This was a decision where an usufructuary mortgage was created in favour of the tenant by the landlord and it was held that during the subsistence of the mortgage the right to receive the house rent was in abeyance and on that basis it was held that after the mortgage was redeemed the rights of the tenant will revive. This is a case not under clause (d) of section 111, but a case of ''surrender'' and, therefore, it will be of no help to the appellant. In the same volume short-note 320, 1960 JLJ Murarilal v. Kapurchand 1960 JLJ SN 320, on which reliance was also placed by the learned counsel is also a case of mortgage dealing with the doctrine of ''surrender'' and in this decision the passage which is noted in Short-Note itself goes a long way against the contention advanced by the learned counsel, as it is observed :

In order that there may be a merger so as to destroy the tenancy the two estates which are supposed to collapse must be vested in the same person at the same time and in the same right.

This is what exactly happened when the tenant purchased the property from his landlord he became himself the owner thereof. In Ramrao v. Pahumal 1963 JLJ 641, even in a case of mortgage a Division Bench of this Court held that the transaction of a mortgage determines the tenancy by implied surrender and it cannot be revived, as it is observed:--

In conclusion, we are of the view that in the absence of a contract to the contrary, the relationship of landlord and tenant ceases as soon as the tenant accepts a pure usufructuary mortgage of the tenanted premises and, on redemption the mortgagor is entitled to get back actual possession from the mortgagee and the pre-existing tenancy does not revive. If the tenant desires to revive his pre-existing tenancy, he must have the landlord mortgagor to enter into such a convenant. When bilateral transaction determines the defendant''s tenancy by implied surrender, it cannot be revived unilaterally.

In the same volume Short-Note 36 notices a case of learned Single Judge of this Court wherein it has clearly been stated that the rights of the lessor or lessee could have been merged in the larger estate which was created by an act of sale in favour of the defendant, but what has been further observed is that the sale is void and the doctrine of merger cannot be invoked. As stated earlier, in the present case the sale had not been held to be void. This decision in no way helps the case of the appellant.

The learned counsel for the respondent relied on Shah Mathuradas Maganlal and Co. Vs. Nagappa Shankarappa Malage and Others, , where their Lordships considered the question of ''merger'' u/s 111 of the Transfer of Property Act. When the landlord mortgaged the property with the tenant and it was held:--

The deed of mortgage shows these features indicating that there was surrender of tenancy and the appellant was only a mortgagee. The High Court found that there was a surrender of tenancy right. No particular form of words is essential to make a valid surrender. A surrender may be oral. A surrender may be express although delivery of possession is necessary for surrender in the facts and circumstances of a given case. In the present case, delivery of possession was immediately followed by a redelivery of possession of the appellant as mortgagee. The Mortgage Deed establishes beyond doubt that the effect of the Deed was inconsistent with the continuance or subsistence of the lease because the party themselves stipulated that the lease was to exist only upto 6 November, 1953. On the redemption of the mortgage the respondent had a right to recover possession both on the terms of the mortgage deed and u/s 62 of the Transfer of Property Act.

In Badri Narain Jha v. Rameshwar Dayal Singh and others AIR 1965 SC 186 their Lordship considered the impact of section 111(d) of the Transfer of Property Act and observed:--

If the lessor purchases the lessee''s interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant......

In Balaprasad Asaram Charkha and others v. Asambi AIR 1954 Nag 32 a Division Bench of this Court considered the impact of section 111 (d) of the Transfer of Property Act and held:--

No doubt, when the lease-hold tight and the reversion coincide there is a merger of the lessor estate in the greater, i.e. leasehold rights are merged in the reversion. There cannot however be any merger unless the lessee acquires the reversion by a valid transaction.

It is, therefore, clear that when the appellant-defendant purchased the property from the vendor he acquired a good title and when he became the owner he could not continue to be tenant as well and it, therefore, cannot be contended that when under the decree he was directed to convey his title in favour of the plaintiff-respondent, the lease which had, already come to an end will revive. For such a revival, the learned counsel could not lay hand on any decision as apparently that once the lease determines the question of revival does not arise, and therefore, there is no substance in this contention of the learned counsel for the appellant as well.

In the light of the discussion above, therefore, I see no reason to entertain this appeal. It is, accordingly, dismissed with costs. The respondent shall be entitled to costs of this appeal. Counsel fee, as per Schedule, if certified.