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Judgment
316 paragraphs · 6,983 wordsA. Selvam, J.—These second appeals have been preferred against the concurrent Judgments and decrees passed in Original Suit Nos. 66 of
2000 and 78 of 2000 by the Sub Court, Kuzhithurai and in Appeal Suit Nos. 17 and 18 of 2008 by the District Court, Kanyakumari District at
Nagercoil. Likewise, these Civil Revision Petitions have been preferred against the orders passed in E.A. Nos. 206 and 207 of 2006 and in E.A.
Nos. 245 and 246 of 2010 in E.A. No. 206 of 2006 and in E.A. No. 247 of 2010 in E.A. No. 207 of 2006 by the Sub Court, Kuzhithurai.
The Respondent in Second Appeal No. 241 of 2010 as Plaintiff has instituted Original Suit No. 66 of 2000 for the relief of specific
performance, wherein the Appellants in Second Appeal No. 241 of 2010 have been shown as Defendants.
It is averred in the plaint filed in Original Suit No. 66 of 2000 that the Defendants are the absolute owners of the suit property and they agreed
to sell the same in favour of the Plaintiff for a sum of Rs. 4,75,000/-and to that effect a registered sale agreement has come into existence on
19.11.1999. The Defendants have agreed to execute a sale deed in favour of the Plaintiff within a period of four months after receipt of balance of
sale consideration of Rs. 1,75,000/-. The Defendants have failed to execute a sale deed as contemplated in the sale agreement dated 19.11.1999
and subsequently the Defendants have executed an extension deed dated 15.03.2000, wherein the Defendants have agreed to execute a sale deed
within a period of two months. The Defendants are not ready to execute a sale deed in favour of the Plaintiff and subsequently exchange of notices
has occurred and even after exchange of notices, the Defendants have failed to execute a sale deed in favour of the Plaintiff. Under the said
circumstances, the present suit has been instituted for the relief sought for therein.
In the written statement filed on the side of the Defendants it is averred that the Plaintiff is a professional money lender and he used to extract
exorbitant interest from his borrowers. It is false to say that on 19.11.1999 the suit sale agreement has come into existence between the Plaintiff
and Defendants and the same has been obtained by exercising fraud and coercion. The Defendants have received a sum of Rs. 6,50,000/-from the
Plaintiff and thereby agreed to pay 10% exorbitant interest. By way of selling house plots, the Defendants have repaid Rs. 6,00,000/-. For the
notice given by the Plaintiff, the Defendants have given suitable reply notice. The Defendants are not bound to execute a sale deed in favour of the
Plaintiff and there is no merit in the suit and the same deserves to be dismissed.
The Respondent in Second Appeal No. 240 of 2010 as Plaintiff has instituted Original Suit No. 78 of 2000 on the file of the trial Court for the
relief of specific performance, wherein the Appellants have been shown as Defendants.
It is averred in the plaint filed in Original Suit No. 78 of 2000 that the Defendants are the owners of the suit property and they agreed to sell the
same in favour of the Plaintiff under a registered sale deed dated 19.11.1999 for a sum of Rs. 4,90,000/-. On the date of sale agreement both the
Defendants have received a sum of Rs. 3,50,000/-and both of them have agreed to execute a sale deed after receipt of balance of sale
consideration of Rs. 1,40,000/-within a period of five months and since they failed to execute a sale deed within the period mentioned in the sale
agreement dated 19.11.1999, subsequently they executed an extension deed dated 20.03.2000, wherein they agreed to execute a sale deed in
favour of the Plaintiff within a period of two months. But the Defendants have shown utter disregard in executing a sale deed in favour of the
Plaintiff and subsequently exchange of notices has occurred and even after receipt of notice, the Defendants have not come forward to execute a
sale deed in favour of the Plaintiff. Under the said circumstances the present suit has been instituted for the relief sought for therein.
In the written statement filed on the side of the Defendants it is averred that one Shahul Hameed is a professional money lender and he filed
Original Suit No. 66 of 2000 for the relief of specific performance against the Defendants, wherein a detailed written statement has been filed. It is
false to contend that on 19.11.1999 the suit sale agreement has come into existence between the Plaintiff and Defendants. The alleged suit sale
agreement has come into existence on the basis of fraud and coercion exercised by the said Shahul Hameed. The Plaintiff is nothing but a benami
of the said Sahum Hameed and since no sale agreement has come into existence between the Defendants and Plaintiff at any point of time much
less on 19.11.1999, the Plaintiff is not entitled to get the discretionary relief of specific performance and there is no merit in the suit and the same
deserves to be dismissed.
On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues in both the suits and conducted separate trial
and after evaluating both the oral and documentary evidence has decreed both the suits. Against the Judgments and decrees passed in both the
suits, Appeal Suit Nos. 17 and 18 of 2008 have been preferred on the file of the first appellate Court.
The first appellate Court after hearing both sides and upon reappraising the evidence available on record has dismissed both the appeals and
thereby confirmed the Judgments and decrees passed in Original Suit Nos. 66 and 78 of 2000. Against the concurrent Judgments and decrees
passed by the Courts below, these second appeals have been preferred at the instance of the Defendants in both the suits as Appellants.
In Second Appeal Nos. 241 and 240 of 2010, the following common substantial questions of law have been raised on the side of the
Appellants/Defendants:
(a) Whether the first appellate Court is wrong in dismissing the appeal without analysing that no decree of specific performance can be granted
without the prayer or possession and partition, when the same is under dispute?
(b) Whether the learned District Judge is wrong by not considering the settled proposition of law that the decree of specific performance cannot be
granted against a non existing property?
(c) Whether the decree of specific performance can be granted to a person who has approached the Court without clean hands?
(d) Whether the first appellate Court is right in considering the mere recitals of the agreement for sale without analysing the intention of parties
thereon?
(e) Whether the first appellate Court is wrong in dismissing the appeal without analysing the material legal position that in executable decree cannot
be granted by a Court of law?
As stated earlier, in Original Suit Nos. 66 and 78 of 2000 as well as in Appeal Suit Nos. 17 and 18 of 2008, both the Courts have
concurrently rejected the defence taken on the side of the Defendants therein. After disposal of Appeal Suit Nos. 17 and 18 of 2008, the Plaintiff
in Original Suit No. 66 of 2006 has filed E.A. No. 206 of 2006 and the Plaintiff in Original Suit No. 78 of 2000 has filed E.A. No. 207 of 2006
for getting possession of respective suit property. During pendency of the same, in E.A. No. 206 of 2006, E.A. Nos. 245 and 246 of 2010 have
been filed for the reliefs of police protection and also to break open the concerned suit property and further in E.A. No. 207 of 2006, E.A. No.
247 of 2010 has been filed for the relief of police protection. The trial Court has allowed E.A. Nos. 206 and 207 of 2006, E.A. Nos. 245, 246
and 247 of 2010. Against the orders passed by the trial Court, Civil Revision Petition Nos. 1360, 1361, 2185, 2186 and 2187 of 2010 have been
preferred on the file of this Court.
Since common questions of law and facts are involved in both the second appeals as well as all Civil Revision Petitions, common judgment is
pronounced.
The specific case of the Plaintiff in Original Suit No. 66 of 2000 is that the suit property is the absolute property of the Defendants therein and
both of them have agreed to sell the same in favour of the Plaintiff for a sum of Rs. 4,75,000/-and to that effect a registered sale agreement has
come into existence on 19.11.1999, wherein both the Defendants have agreed to receive balance of sale consideration and execute a sale deed
within a period of four months. But they failed to execute a sale deed and subsequently both of them have executed an extension deed dated
15.03.2000 and even after lapse of the period mentioned therein, the Defendants have not come forward to execute a sale deed in favour of the
Plaintiff. Under the said circumstances, Original Suit No. 66 of 2000 has been instituted.
The specific contention urged on the side of the Plaintiff in Original Suit No. 78 of 2000 is that the suit property is the absolute property of the
Defendants therein and both of them have agreed to sell the suit property for a sum of Rs. 4,90,000/-in favour of the Plaintiff and to that effect a
registered sale agreement has come into existence on 19.11.1999 and on the date of its execution, both the Defendants have received a sum of Rs.
3,50,000/-and they agreed to execute a sale deed within a period of four months after receipt of balance of sale consideration. But they failed to
execute a sale deed and subsequently they executed an extension deed dated 20.03.2000. Even after lapse of the period mentioned therein, the
Defendants have not come forward to execute a sale deed and therefore, the present suit has been instituted for the relief sought for therein.
The specific defence taken on the side of the Defendants is that the Plaintiff in Original Suit No. 66 of 2000 is nothing but a money lender and
he used to advance money to third parties on the basis of exorbitant interest and the Defendants have received a sum of Rs. 6,50,000/-from him
by way of debt and thereby agreed to pay 10% interest and subsequently by way of selling their house plots they repaid Rs. 6,00,000/-and the suit
sale agreements mentioned in Original Suit Nos. 66 of 2000 and 78 of 2000 are nothing but concoction and they have been created by using fraud
and coercion and further, the Plaintiff in Original Suit No. 78 of 2000 is nothing but a benami of the Plaintiff in Original Suit No. 66 of 2000 and
therefore the respective Plaintiff is not entitled to get the relief sought for in Original Suit Nos. 66 and 78 of 2000.
As stated supra, the Courts below have concurrently rejected the defence taken on the side of the Defendants in Original Suit Nos. 66 and 78
of 2000. Under the said circumstances, a primordial duty is cast upon the Court to find out as to whether the concurrent Judgments and decrees
passed by the Courts below are perfectly correct or the same require interference.
The learned Counsel appearing for the Appellants/Defendants has attacked the suit sale agreements on the following grounds:
(a) The Plaintiff in Original Suit No. 66 of 2000 is nothing but a professional money lender and he used to advance money to various persons on
the basis of exorbitant interest and the Defendants have received a sum of Rs. 6,50,000/-from him and agreed to pay 10% interest and
subsequently they repaid Rs. 6,00,000/-and the suit sale agreements have come into existence by way of exercising fraud and coercion and the
Defendants have never agreed to execute the suit sale agreements and the Courts below have failed to look into the defence taken on the side of
the Defendants and therefore, the concurrent Judgments and decrees passed by the Courts below are liable to be interfered with.
(b) In Original Suit Nos. 66 and 78 of 2000 relief of specific performance has alone been sought for and relief of possession has not been sought
for. But the Plaintiffs have filed E.A. Nos. 206 and 207 of 2006 for getting possession and further E.A. No. 207 of 2006 has been filed by the
Plaintiff in Original Suit No. 78 of 2000 and he subsequently sold the suit property mentioned in Original Suit No. 78 of 2000 to the Plaintiff in
Original Suit No. 66 of 2000 and therefore, E.A. No. 207 of 2006 is not maintainable.
(c) The Plaintiff in Original Suit No. 78 of 2000 is nothing but benamithar of the Plaintiff in Original Suit No. 66 of 2000 and therefore, the defence
taken on the side of the Defendants in Original Suit No. 78 of 2000 can easily be accepted by the subsequent contact of the Plaintiffs in Original
Suit Nos. 78 and 66 of 2000.
In order to dispel the argument advanced by the learned Counsel appearing for the Appellants /Defendants, the learned Counsel appearing for
Respondents in both the appeals as well as the Respondents in Civil Revision Petitions has argued that even though a vague defence has been
taken on the side of the Defendants in the written statements to the effect that the suit sale agreements have come into existence by way of
exercising fraud and coercion, in Ex.B3 filed in Original Suit No. 66 of 2000 the Defendants themselves have clearly admitted execution of the suit
sale agreements dated 19.11.1999 and further the suit sale agreements are nothing but registered documents and the Courts below after
considering the over all evidence available in both the cases have rightly rejected the defence taken on the side of the Defendants and therefore, the
concurrent Judgments and decrees passed by the Courts below do not warrant interference and further even though relief of possession has not
been sought for in both the suits, the Plaintiffs are entitled to file E.A. Nos. 206 and 207 of 2006 for getting possession and the trial Court after
considering the rival contentions raised therein has rightly allowed E.A. Nos. 206 and 207 of 2006 and rightly allowed the subsequent Execution
Applications filed in E.A. Nos. 245, 246 and 247 of 2010 and altogether the Second Appeals as well as Civil Revision Petitions are liable to be
dismissed.
On the basis of the divergent submissions made by either counsel the Court has to analyse the first and foremost point raised on the side of the
Appellants/Defendants to the effect as to whether the suit sale agreements have come into existence on the basis of fraud and coercion as alleged
on the side of the Appellants/Defendants. In the written statement filed on the side of the Defendants in Original Suit No. 66 of 2006 at paragraph-
6 it has been stated like thus:
The alleged registered agreement for sale dated 19.11.1999 is a cooked up one and also is obtained by fraud and coercion.
It is an archaic and pristine principle of law that if any party pleads fraud, details of the same must be specifically pleaded. In the instant case, as
stated supra in paragraph-6 of the written statement, it has been simply stated that the alleged registered agreement for sale dated 19.11.1999 is a
cooked up one and also is obtained by fraud and coercion. Except the bald averments with regard to fraud and coercion, no details are found
place in the written statement filed on the side of the Defendants in Original Suit No. 66 of 2000. Therefore, it is easily discernible that the fraud
alleged on the side of the Appellants/Defendants in Original Suit No. 66 of 2000 is not inconsonance with legal requirements. Under the said
circumstances, the Court can straight away reject the plea of fraud and coercion attached to the suit sale agreements dated 19.11.1999.
The suit sale agreements dated 19.11.1999 have been marked as Ex.A1 in both the suits and the extension deeds executed by the Defendants
in Original Suit No. 66 of 2000 has been marked as Ex.A4 and in Original Suit No. 78 of 2000 it has been marked as Ex.A2. At this juncture, it
would be apposite to look into Ex.B3 filed in Original Suit No. 66 of 2000. Ex.B3 is the sale agreement executed by the Defendants in favour of
one Yohannan Mar Christom, wherein it has been clinchingly stated that both the Defendants have executed the suit sale agreement dated
19.11.1999 in favour of the Plaintiffs. On the basis of the clear admission made by the Defendants in Ex.B3, the Court can very well come to a
conclusion that the Defendants have executed suit sale agreements dated 19.11.1999 as pleaded on the side of the Plaintiffs in both the suits and
further, the Court has to bear in mind with regard to aspect which is favourable to the Plaintiffs i.e., the suit sale agreements are registered
documents. The suit sale agreements have come into existence on 19.11.1999. For the first time, the Plaintiffs in both the suits have given legal
notices dated 10.05.2000. Before 10.05.2000 the Defendants have not made any attempt so as to say that the Plaintiff in Original Suit No. 66 of
2000 has obtained sale agreement by exercising fraud and coercion.
At this juncture, the learned Counsel appearing for the Appellants has also made a fatuous exercise to the effect that the legal notice dated
10.05.2000 given by the Plaintiff in Original Suit No. 66 of 2000 has been marked as Ex.A5. The Advocate who has given the same has also
given Ex.B8 on behalf of Yohannan Mar Christom to the Defendants, wherein it has been stated about the loan transaction of the Defendants with
the Plaintiff in Original Suit No. 66 of 2000 as well as the circumstances under which the suit sale agreements have come into existence and
therefore, the Court can come to a conclusion that the defence taken on the side of the Defendants is highly probable. As stated earlier, Ex.B8 is
nothing but a legal notice issued on behalf of the said Yohannan Mar Christom by the very same counsel who issued Ex.A5 on behalf of the
Plaintiff in Original Suit No. 66 of 2000. Simply because such averments are found place in Ex.B8 with regard to the suit sale agreements, the
same are not binding upon the present Plaintiffs. Therefore, on the basis of the averments found in Ex.B8 the Court cannot come to a conclusion
that the defence taken on the side of the Defendants in both the suits to the effect that the suit sale agreements have come into existence on the
basis of fraud and coercion as alleged on their side. Further, as rightly pointed out by the learned Counsel appearing for the Respondents/Plaintiffs,
in Ex.B3 it has been clinchingly stated that the suit sale agreements have been executed by the Defendants in favour of the Plaintiffs. Therefore, the
first and foremost factual aspect raised on the side of the Appellants/Defendants cannot be accepted.
Now the Court has to look into the vital legal point raised on the side of the Appellants/Defendants. The vital legal point raised on the side of
the Appellants/Defendants is that in both the suits relief of possession has not been sought for, apart from the relief of specific performance and
subsequently E.A. Nos. 206 and 207 of 2006 have been filed and further, the Defendants are not in possession of the suit properties. Under the
said circumstances both Execution applications are not legally maintainable and further after getting sale deed from the Court, the Plaintiff in
Original Suit No. 78 of 2000 has sold the suit property mentioned therein in favour of the Plaintiff in Original Suit No. 66 of 2000 and altogether
E.A. Nos. 206 and 207 of 2006 are not legally maintainable. But the trial Court without considering the above legal infirmity has erroneously
allowed E.A. Nos. 206 and 207 of 2006 and therefore, the orders passed therein are liable to be set aside.
Before contemplating legal point mentioned supra, it would be condign to embalm the relevant provisions of law. Section 22 of the Specific
Relief Act 1963 reads as follows:
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 u/s
21.
Section 55 of the Transfer of Property Act, 1882 reads as follows:
Rights and liabilities of buyer and seller.-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:
(1) The seller is bound
(a) to disclose to the buyer any material defect in the property (or in the seller''s title thereto) of which the seller is, and the buyer is not, aware, and
which the buyer could not with ordinary care discover;
(b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller''s possession or
power;
(c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto;
(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to
him for execution at a proper time and place;
(e) between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating
thereto which are in his possession as an owner of ordinary prudence would take of such property and documents;
(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits;
(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such
property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then
existing.
(2) The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has
power to transfer the same:
Provided that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done
no act whereby the property is encumbered or whereby he is hindered from transferring it.
The benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced
by every person in whom that interest is for the whole or any part thereof from time to time vested.
(3) Where the whole of the purchase-money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the
property which are in the seller''s possession or power:
Provided that, (a) where the seller retains any part of the property comprised in such documents, he is entitled to retain them all, and, (b) where the
whole of such property is sold to different buyers, the buyers of the lot of greatest value is entitled to such documents. But in case (a) the seller,
and in case (b) the buyer, of the lot of greatest value, is bound, upon every reasonable request by the buyer, or by any of the other buyer, as the
case may be, and at the cost of the person making the request, to produce the said documents and furnish such true copies thereof or extracts
there from as he may require; and in the meantime, the seller, or the buyer of the lot of greatest value, as the case may be, shall keep the said
documents safe, un cancelled and undefaced, unless prevented from so doing by fire or other inevitable accident.
(4) The seller is entitled
(a) to the rents and profits of the property till the ownership thereof passes to the buyer;
(b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the
property in the hands of the buyer, (any transferee without consideration or any transferee with notice of the non-payment), for the amount of the
purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part (from the date on which possession has been
delivered).
(5) The buyer is bound
(a) to disclose to the seller any fact as to the nature or extent of the seller''s interest in the property of which the buyer is aware, but of which he has
reason to believe that the seller is not aware, and which materially increases the value of such interest;
(b) to pay or tender, at the time and place of completing the sale, the purchase-money to the seller or such person as he directs: Provided that,
where the property is sold free from encumbrances, the buyer may retain out of the purchase-money the amount of any encumbrances on the
property existing at the date of the sale, and shall pay the amount so retained to the persons entitled thereto;
(c) where the ownership of the property has passed to the buyer, to bear any loss arising from the destruction, injury or decrease in value of the
property not caused by the seller;
(d) where the ownership of the property has passed to the buyer, as between himself and the seller, to pay all public charges and rent which may
become payable in respect of the property, the principal moneys due on any encumbrances subject to which the property is sold, and the interest
thereon afterwards accruing due.
(6) The buyer is entitled
(a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the
rents and profits thereof;
(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming
under him, (***) to the extent of the seller''s interest in the property, for the amount of any purchase-money properly paid by the buyer in
anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and
for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.
From the close reading of Section 22 of the Specific Relief Act, 1963 it is made clear that in a suit for specific performance, relief of
possession, partition and separate possession can also be sought for. As per the provision of Section 55 of the Transfer of Property Act, 1882, a
bounden duty is cast upon the seller to hand over possession of the property which involved in a particular sale as its nature admits.
The sum and substance of the legal point raised on the side of the Appellants/Defendants is that in Original Suit Nos. 66 of 2000 and 78 of
2000 relief of possession has not been sought for and further, the Defendants are not in possession of the suit properties and therefore, E.A. Nos.
206 and 207 of 2006 are not legally maintainable. But the trial Court has erroneously allowed the same.
In support of the contention urged on the side of the Appellants/Defendants, the following decisions have been accited for the scrutiny of the
Court.
(a) The first and foremost decision is reported in 2001 (4) CTC 39 Adcon Electronics Pvt. Ltd v. Daulate and Anr., wherein the Honourable
Apex Court has held that Section 22(2) mandates that no relief u/s 22(1)(a) & (b) shall be granted, unless it is specifically claimed.
(b) The second decision is reported in (2008) 5 MLJ 342 Nandhini Promoters rep. by Proprietrix Ms. E. Thenmozhi, Chennai v. A. Sadiq Ali,
Son of Abbas Ali and Anr., wherein this Court has held that the relief of possession need not necessarily be treated as inherent or in-build in a
relief of specific performance and a mere suit for specific performance without a specific prayer for possession is not a suit for land. As such, a suit
for specific performance would not automatically become a suit for land (by virtue of Section 55 of the Transfer of Property Act), despite its
ingenuity.
(c) The third decision is reported in 2009 (4) CTC 181 Dr. Hendry Dasarathan and 2 Ors. v. R. Prabhakaran, wherein this Court has held that in
a suit for specific performance, delivery of possession can be granted without specific prayer.
As a riposte to the argument advanced on the side of the Appellants as well as the decisions accited on their side, the learned Counsel
appearing for the Respondents/Plaintiffs has also accentuated the Court to look into the following decisions:
(a) In Babu Lal Vs. Hazari Lal Kishori Lal and Others, at paragraph-13, it is observed as follows:
A mere relief for specific performance of the contract of sale may not entitle the Plaintiff to obtain possession as against the party in actual
possession of the property. As against him, a decree for possession must be specifically claimed for such a person is not bound by the contract
sought to be enforced. 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 T.P. 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.
(b) In (2006) 2 MLJ 350 N.K. Jinnah v. K.P. Krishnan this Court has held that in a suit for specific performance delivery of possession has not
been sought for, the same can be granted even by an Executing Court.
(c) In AIR 2006 SC 145 . Varghese v. Devaki Ammal Balambika Devi and Ors., the Honourable Apex Court has observed as follows:
The submission of Mr. Reddy to the effect that the learned Trial Judge committed a serious error in granting a decree for partition along with a
decree for specific performance of contract need not detain us as long as in view of Section 22(1)(a) of the Act a decree for partition and separate
possession of the property can be granted in addition to a decree for specific performance of contract. As in this case, the Appellant herein in view
of amended prayer ''C'' relinquished his claim in respect of the property belonging to the minor-Respondent No. 4, he also prayed for a decree for
partition and such a prayer having been allowed, no exception thereto can be taken. In any event, the said question has not been raised by the
Respondent(s) before the High Court at all. Section 22 enacts a rule of pleading that in order to avoid multiplicity of proceedings, the Plaintiff may
claim a decree for possession and/or partition in a suit for specific performance. Even though strictly speaking, the right to possession accrues only
when a suit for specific performance is decreed, indisputably such a decree for possession and/or partition is prayed for in anticipation of the grant
of prayer for specific performance of contract. (see Babu Lal Vs. Hazari Lal Kishori Lal and Others, .
From the conjoint reading of the decisions referred to supra, it is made clear that in a suit for specific performance of a contract, relief of
possession can be granted even though the same has not been sought for.
The entire argument advanced on the side of the Appellants/Defendants is based upon the decision rendered by the Honourable Apex Court
reported in 2001 (4) CTC 39 Adcon Electronics Pvt. Ltd v. Daulate and Anr., wherein the Honourable Apex Court has held that as per Section
22(2) of the Specific Relief Act 1963, no relief for possession can be granted without being specifically claimed. In fact, in the decision reported in
2001 (4) CTC 39 Adcon Electronics Pct. Ltd v. Daulate and Anr., the Honourable Apex Court has not referred the decision reported in Babu Lal
Vs. Hazari Lal Kishori Lal and Others, and further in the decision reported in P.C. Varghese Vs. Devaki Amma Balambika Devi and Others, the
Honourable Apex Court has held that in a suit for specific performance, possession can be given even though the same has not been sought for. At
this juncture, the only distinction made by the learned Counsel appearing for the Appellants /Defendants is that in a suit for specific performance
relief of possession can be given even though the same has not been sought for in the plaint if the Defendant therein is in possession of the suit
property concerned. But in the instant case, possession of the suit properties is not with the Appellants/Defendants and therefore, the aforesaid
principle of law cannot be attuned in the present case.
It has already been stated that the suit sale agreements dated 19.11.1999 in both the suits have been marked as Ex.A1, wherein no mention
has been made with regard to alleged possession of tenants and in the extension deeds which have been marked as Ex.A4 in Original Suit No. 66
of 2000 and Ex.A2 in Original Suit No. 78 of 2000 for the first time it has been mentioned that the Defendants have agreed to vacate the tenants
within a period of two months. Even assuming without conceding that at the time of executing Exs.A4 and A2 respectively, the suit properties are
in possession and enjoyment of tenants, it is purely outlook of the Appellants /Defendants to vacate them and further the learned Counsel
appearing for the Respondents/Plaintiffs befittingly pointed out that in the appeal memorandum the address of the Appellants/Defendants has been
given as if they are residing in the suit properties. Therefore, it goes without saying that the Defendants are in possession and enjoyment of the suit
properties. Under the said circumstances E.A. Nos. 206 and 207 of 2006 are legally maintainable in view of the decision rendered by the
Honourable Apex Court reported in AIR 2006 Supreme Court 145 P.C. Varghese v. Devaki Ammal Balambika Devi and Ors. Therefore, the
legal point raised on the side of the Appellants/Defendants also goes out without merit.
In Second Appeal No. 241 of 2010 a petition under Order 41 Rule 27 of the Code of Civil Procedure, 1908 has been filed in MP(MD) No.
1 of 2011. Along with MP(MD) No. 1 of 2011 three documents have been filed. The first two documents are the sale deeds executed by the trial
Court in favour of the respective Plaintiff and the third document is the sale deed executed by the Plaintiff in Original Suit No. 78 of 2000 in favour
of the Plaintiff in Original Suit No. 66 of 2006. At this stage also an inert exercise has been made on the side of the Appellants/Defendants to the
effect that the suit sale agreements have come into existence by way of exercising fraud and coercion and the Plaintiff in Original Suit No. 78 of
2000 is nothing but a benamithar of the Plaintiff in Original Suit No. 66 of 2000. Under the said circumstances the third document filed in MP(MD)
No. 1 of 2011 has come into existence.
It has already been dealt with in extenso about the validity and genuineness of Ex.A1 (Suit sale agreements dated 19.11.1999) and ultimately
found that the suit sale agreements are nothing but genuine documents and the same have been executed by the Appellants/Defendants even on the
basis of admission made in Ex.B3 filed in Original Suit No. 66 of 2000.
Of course it is true that along with MP(MD) No. 1 of 2011 three documents have been filed. The first two documents are nothing but sale
deeds executed by the trial Court in favour of the Plaintiffs and the third document is the sale deed dated 23.08.2006. Considering the nature of
the documents filed in MP(MD) No. 1 of 2011, this Court is of the view that MP(MD) No. 1 of 2011 can be allowed and the same is allowed
and the documents filed therein have been marked as Exs.B34 to B36.
As stated earlier, an abortive attempt has been made to the effect that for the purpose of proving benami nature of transaction between the
Plaintiff in Original Suit No. 66 of 2000 and Plaintiff in Original Suit No. 78 of 2000, Ex.B36 has been filed. Ex.B36 has come into existence on
23.08.2006. The sale deed which stands in the name of the Plaintiff in Original Suit No. 78 of 2000 has come into existence on 20.07.2005. After
a lapse of thirteen months Ex.B36 has come into existence. Simply because Ex.B36 has been executed in favour of the Plaintiff in Original Suit No.
66 of 2000 and simply because in Ex.B36 the sale consideration mentioned in Ex.A1 is found place, the Court cannot come to a conclusion that
the Plaintiff in Original Suit No. 78 of 2000 is a benamithar of the Plaintiff in Original Suit No. 66 of 2000. Therefore, the aforesaid argument
advanced on the side of the Appellants/Defendants cannot be accepted.
As expounded earlier, in EA. No. 206 of 2006, E.A. Nos. 245 and 246 of 2010 have been filed for the relief of getting police protection and
also to break open the suit properties and likewise, in E.A. No. 207 of 2006, E.A. No. 247 of 2010 has been filed for getting police protection.
It has already been discussed in detail that even though relief of recovery of possession has not been sought for in Original Suit Nos. 66 and 78
of 2000, E.A. Nos. 206 and 207 of 2006 are legally maintainable in view of the decision reported in P.C. Varghese Vs. Devaki Amma Balambika
Devi and Others, . Therefore, it is needless to say that the orders passed in E.A. Nos. 206 and 207 of 2006 by the trial Court are perfectly correct
and consequently the orders passed in E.A. Nos. 245, 246 and 247 of 2010 are also equally correct and altogether the orders passed in E.A.
Nos. 206 and 207 of 2006, 245, 246 and 247 of 2010 by the trial Court do not warrant interference.
It has already been discussed in detail that Ex.A1, suit sale agreements in both the suits dated 19.11.1999 are genuine documents and the
Courts below after considering the rival contentions raised on either side have rightly rejected the defence taken on the side of the
Appellants/Defendants. In view of the discussion made earlier, this Court has not found any error in the concurrent Judgments and decrees passed
by the Courts below and further, the substantial questions of law raised on the side of the Appellants are not having substance at all and altogether
both the Appeals and Civil Revision Petitions are liable to be dismissed.
In fine, Second Appeal Nos. 241 and 240 of 2010 deserve dismissal and accordingly are dismissed with costs and the concurrent Judgments
and decrees passed in Original Suit Nos. 66 of 2000 and 78 of 2000 and in Appeal Suit Nos. 17 and 18 of 2008 by the Courts below are
confirmed. Likewise, CRP NPD (MD)Nos.1360, 1361, 2185, 2186 and 2187 of 2010 are also dismissed with cost and the orders passed in
E.A. Nos. 206 and 207 of 2006 and in E.A. Nos. 245 and 246 of 2010 in E.A. No. 206 of 2006 and in E.A. No. 247 of 2010 in E.A. No. 207
of 2006 by the Sub Court, Kuzhithurai are confirmed. Connected MP(MD)Nos.1 & 2 of 2010 are also dismissed.