Sabir Hussain vs Smt. Indrawati and Others

Bharati Sapru, J.—Heard Sri M.A. Qadeer, learned Senior Counsel assisted by Sri Shamim Ahmad on behalf of the Petitioner. He has argued the matter at length and I have heard him at great length. Sri Sidharth Srivastava has appeared on behalf of the Respondents.

The present petition has been filed by the Petitioner with a prayer that this Court may issue a writ of certiorari to quash the orders dated 29.10.2010 (Annexure No. 8) and 19.7.2010 (Annexure No. 5) passed by the revisional court and the orders dated 15.9.2010 (Annexure No. 7) and 11.11.2008 (Annexure No. 4) passed by the Executing Court.

The facts as revealed from the writ petition are that the predecessor in interest of the present Respondents namely Kanhai Lal had filed an Original Suit No. 165 of 1982 against the Petitioner in the month of May, 1987 for specific performance of a contract dated 4.1.1982. The present Petitioner contested the Suit, however, the trial court by its judgment and decree dated 26.2.1984 dismissed the suit by coming to the conclusion that the Plaintiff could not perform his part of the agreement and, therefore, the Plaintiff was not entitled for specific performance.

Against the judgment and decree dated 26.2.1984 the Plaintiffs preferred Civil Appeal No. 4 of 1995 and this Civil Appeal was allowed by a judgment dated 3.2.1998. A decree was passed in favour of the Plaintiffs. The present Petitioners (Defendants) were directed to execute and register the sale deed after taking the balance amount of Rs. 27,500/-.

Against the order passed in Civil Appeal No. 4 of 1995 the present Petitioners filed Second Appeal No. 207 of 1998 before the Hon''ble High Court and summons were issued in the said Second Appeal. Meanwhile, the Plaintiffs put the decree in execution by way of an Execution Case No. 15 of 1998. The present Petitioner filed an objection before the trial court, which was registered as Misc. Case No. 123 of 2004. The objection was taken by the present Petitioners that although the Plaintiffs had prayed for the relief of specific performance in the plaint, they had not prayed for the relief of possession.

The second objection taken was that in fact no decree was also passed for possession. However, this objection was dismissed by the Executing Court on 11.11.2008 against which the Petitioner filed Civil Revision No. 171 of 2008, which has been dismissed on 19.7.2010.

Sri Qadeer while making his argument has argued that the revision was not heard and decided on merits as it should have been and the Executing Court was trying to proceed in the matter without deciding the Petitioner''s objection. Therefore, another objection 4-C was filed by the Petitioner, which was registered as Misc. Case No. 32 of 2010. The Executing Court by its order dated 15.9.2010 has rejected the said objection.

Being aggrieved by that order the Petitioner thereafter filed Civil Revision No. 64 of 2010, which has been dismissed by an order dated 29.10.2010.

Other than these proceedings the Petitioner also filed an objection against the drafts sale deed, which was rejected on 20.3.2009 against which the Petitioner filed a Misc. Appeal, which was also dismissed. Against that order the Petitioner filed Civil Misc. Writ Petition No. 19061 of 2010, which has also been dismissed. Now, all the orders have been challenged in a combined way by Sri Qadeer.

First limb of his argument is that in the plaint filed by the Respondents there was no relief prayed for possession nor was there any relief granted in the decree for possession i.e. in Civil Appeal No. 4 of 1995 and, therefore, the revisional court could not go beyond the decree.

The second limb of his argument is that the present Respondents cannot make a prayer for possession in the Execution Application as that was beyond the scope of an Execution Application specially when the relief of possession was not prayed for in the suit and the relief for possession was not granted in the decree and, therefore, the Petitioner''s objection filed u/s 47 of the Act has wrongly been rejected.

Thirdly, Sri Qadeer has argued that by the order dated 11.11.2008 and the order dated 19.7.2010 the issues raised by the Petitioner on merits had not been decided but had been left open and, therefore, its application 4-C was wrongly rejected by the order dated 15.9.2010 on the ground that the issues had already been decided.

Sri Qadeer has also argued that Section 22 of the Specific Relief Act specially provides for an enabling provision whereby a party, who has filed a suit for specific performance may ask specially for the relief of possession or partition. In this case, no such relief was either prayed for or granted and, therefore, it was not open to the Executing Court to grant the relief of possession. He has relied on a decision of the Apex Court reported in 2002 (1) CCC 1 S.C. in the case of Adcon Electronics Pvt. Ltd. v. Daulat and Anr. He has relied particularly on the contents of paragraph No. 16 of the said judgment, which has sought to explain the provisions of Section 22 of the Act and the court in that case came to the conclusion that possession would have to be specifically prayed for u/s 22.

In reply to the contentions made by learned Counsel for the Petitioner, Sri Sidharth Srivastava, learned Counsel for the Respondents has placed reliance on a decision of this Court reported in 2006 (65) ALR 373 in the case of Jafar Mian v. Smt. Qaisar Jahan Begum and Ors.. He has drawn the attention of this Court to the contents of paragraph Nos. 7,8, 9, 10 & 11 of the judgment wherein the contents of the provisions of Section 22 of the Specific Relief Act have been explained taking into account the decision of the Hon''ble Apex Court in the case of Babu Lal v. Hazari Lal Kishori Lal and Ors. reported in 1982 SCC 1 525.

The Allahabad High Court has explained that Section 22 is an enabling provision and the expressions made in the Section indicate that it is not always incumbent on the Plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of immovable property. That has to be done only where the circumstances demand that the relief of specific performance of the contract of the sale require not only the execution of the sale deed but also possession over the property conveyed under the sale deed.

It may not always be necessary for the Plaintiff to specially claim possession over the property as the relief of possession is not only inherent but also incidental in the relief for the specific performance of the contract or sale.

In the present case, learned Counsel has argued that there was no need for making any special claim for possession because it was the undivided property of the Defendant and did not require any such thing like partition or determination of sale.

Learned Counsel also drew the attention of the Court to the provisions of Section 55 of the Transfer of Property Act, which entitled the transferee to get possession in pursuance of the sale deed. This has also been approved in the decision made by the Allahabad High Court.

Thus, having heard learned Counsels for both side and having perused the judgments relied on by them, I am of the opinion that in the present case the Executing Court has not made a mistake in granting the relief of possession to the present Respondents as the relief of possession was inherent and incidental in the relief sought in the plaint as well as in the decree granted by the Court. The other factor, which is also important is that although the Petitioner has even filed the Second Appeal before this Court, no orders have been passed protecting their interest and the matter remains pending. Counsel for the Respondent states that the sale deed has been executed on 17.9.2010 and registered on 18.9.2010. The court below will now proceed in accordance with law.

This writ petition is dismissed. No order as to cost.