S.S. Rajabathar vs N.A. Sayeed

The plaintiff is O. S. 767 of 1967 on the file of the court of the District Munsif, Kancheepuram, who lost before the courts below, is the

appellant herein. The facts are not in controversy. The respondent herein entered into an agreement with one Namperumal Naidu under Ex. B-1

dated 4-9-1958 for purchase of the suit property; Namperumal Naidu having failed to execute the sale deed, the respondent instituted O. S. 41 of

1959, on the file of the court of the District Munsif, Poonamallee, against the said Namperumal Naidu for specific performance of Ex. B-1

agreement. The suit was dismissed by the learned District Munsif, as evidenced by Ex. A-8, dated 25-3-1960, being a certified copy of the decree

therein. The respondent took up the matter in appeal to the learned District Judge, Chingleput and the learned District Judge by his judgment and

decree dated 8-12-1960, reversed the conclusion of the learned District Munsif and decreed the suit for specific performance instituted by the

respondent. Ex. A-9 is a certified copy of the decree, while Ex. B-2 is a certified copy of the judgment. The matter was taken up further in appeal

to this court by the judgment-debtor and that appeal was dismissed. During the interval, Namperumal Naidu sold the suit property to one

Santhiappa Naicker, on 24-9-1959 and from the said Santhiappa Naicker, the appellant herein purchased the property under Ex. A-1 dated 4-8-

1961. From this, it is clear that on the date when Namperumal Naidu sold the property to Santhiappa Naicker on 24-9-1959, O. S. 41 of 1959

was pending and subsequently when the appellant purchased the property from the said Santhiappa Naicker on 4-8-1961, A. S. 153 of 1960 had

already been disposed of in favour of the respondent herein. It was thereafter that the respondent herein took proceedings for execution of the

decree passed in his favour in A. S. 153 of 1960 and by way of execution he prayed for an order for delivery of possession. Such delivery of

possession was ordered by the executing court in favour of the respondent and the respondent proceeded to take possession of the property

pursuant to the orders of the court. It is at that stage that the appellant herein instituted the present suit for a declaration of his title to the suit

property and for an injunction restraining the respondent herein from seeking to dispossess the appellant on the basis of the orders passed by the

executing court in execution of the decree passed in A. S. 153 of 1960. The case of the appellant was that he had purchased the suit property

from Santhiappa Naicker without knowledge of the suit for specific performance, that consequently he had acquired a valid title to the property

and that therefore he was entitled to remain in possession of the same. He also put forward a contention that the executing court had no jurisdiction

to order delivery of possession in execution of the decree in A. S. 153 of 1960 since the decree therein did not contain a clause regarding delivery

of possession. The courts below held that since Santhiappa Naicker purchased the property during the pendency of the suit instituted by the

respondent herein which ultimately ended in his favour, the said sale was affected by the doctrine of lis pendens and that consequently Santhiappa

Naicker did not acquire title to the property from Santhiappa Naicker. With regard to the contention of the appellant that the executing court had

no jurisdiction to direct delivery of possession, since the decree in the suit for specific performance instituted by the respondent did not provide for

delivery of possession, the courts below overruled the same on the ground that the direction to deliver possession of the property is incidental to a

decree for specific performance and therefore the executing court had jurisdiction to order delivery of possession. It is against these judgments and

decrees that the present second appeal has been preferred by the plaintiff in the suit.

Having regard to the admitted fact that by Santhiappa Naicker purchased the property from Namperumal Naidu during the pendency of the suit

instituted by the respondent of the suit instituted by the respondent herein for specific performance of the agreement, there can be no dispute

whatever that the purchase by Santhiappa Naicker first and thereafter by the appellant was affected by the doctrine of lis pendens and

consequently as the suit instituted by the respondent was ultimately decreed, the appellant had not acquired any title to the suit property, with the

result that the only question that arises for consideration is, whether the appellant is entitled to any injunction restraining the respondent from

seeking to take possession of the property pursuant to the orders of the Court in execution of the decree in A. S. 153 of 1960.

Mr. R. Mohan, learned counsel for the appellant, placed reliance on a decision of this court as well as that of Nagpur High Court in support of

his contention that in so far as the decree passed in favour of the respondent in A. S. 153 of 1960 did not provide for delivery of possession, the

execution court could not go behind that decree and order delivery of possession. The decision of this court relied on is that of Sankaran Nair and

Tyabji JJ. in Krishnammal v. Soundararaja Iyer. ILR (1914) Mad 698 = AIR 1914 Mad 465. In that case, the plaintiff had earlier instituted a suit

for specific performance and obtained a decree for specific performance and a sale deed was executed in his favour. Thereafter, he filed an

independent suit for recovery of possession. The question for consideration before the Bench was whether the subsequent suit for recovery of

possession was barred under Order JJ, Rule 2, C.P.C. The learned Judges who decided the case held that such a suit was not barred by Order II,

Rule 2, C.P.C. Sankaran Nair J. held that at the time when the plaintiff brought that suit for specific performance, the right to possession was not

vested in him; that he would acquire that right only on the execution of the deed of conveyance; and that possession was not merely an incident or

subsidiary of the sale deed. The learned Judge also pointed out that in a suit for specific performance the parties to the contract alone need be

parties. On the other hand, Tyabji J. pointed out-

Assuming (as was argued before us) that the agreement gave the right of possession apart from the right to obtain a conveyance, still possession

under the agreement could only be for the period prior to the conveyance, after which the purchaser''s title would be completed, and he would then

be entitled to possession not under the agreement, but on the basis of his title. The plaintiff ''s failure to ask for possession in the previous suit might

therefore have been fatal to any claim he might have set up in the present case under the agreement. If for instance the plaintiff had alleged that he

was entitled to possession under the agreement at some time previous to the conveyance, and had claimed in the present suit damages for being

kept out of possession from that date, the answer might no doubt have been that the plaintiff ''s right to such damages until the date of the

conveyance were barred : Venkoba v. Subbanna, 11 Mad 151, the plaintiff makes no such claim. His claim is on a distinct cause of action which

had not arisen at the time when the first suit was instituted.

Thus, it will be seen that the learned Judges were not considering the question as to the jurisdiction of the executing court with reference to a

decree for specific performance, but they were considering the question whether the cause of action for the claim of the plaintiff in the later suit was

based upon the original agreement or the subsequent conveyance deed executed in his favour.

The decision of the Nagpur High Court referred to and relied on by the learned counsel is that of a single Judge of that court in AIR 1948 406

(Nagpur) In that case, the learned Judge of that Court took the view that the executing court''s jurisdiction is limited to the decree itself and that if a

decree in respect of a particular property or in respect of a particular matter was rightly or wrongly not passed, it could not be executed in respect

of that property or in respect of that matter. While coming to this conclusion, the learned Judge referred to the decision of this court referred to

already, among others, and held that this court had taken the view that the two reliefs were distinct. In my opinion, the judgment of this court in ILR

(1914) Mad 698 = AIR 1914 Mad 465, to already is no authority for the proposition that when a suit for specific performance has been decreed,

the executing court in execution of that decree has no right to pass orders with regard to incidental matters such as delivery of possession, in a case

where the suit for specific performance was for the enforcement of an agreement to sell an immovable property. In view of the preponderant view

of the other courts to which I shall make reference immediately, I am unable to agree with the conclusion of the learned single Judge of the Nagpur

High Court in the case referred to already.

Before referring to the decisions of the other courts, on the point, It will be useful to refer to two decisions of this court, though not on the

identical point, but having a bearing on the question under consideration. In Krishnasami v. Sundarappayyar, ILR (1895) Mad 415, a Bench of this

court (Muttusami Ayyar v. and Best, JJ.) pointed out that ""the cause of action namely, the right to obtain a sale deed and possession of the

property purchased, concerns both the defendants and entitles the plaintiff to relief against both."" That again was not a decision dealing with the

jurisdiction of the executing court.

Another Bench of this court had to consider the question of court-fee payable on a suit for specific performance which also incidentally prayed

for recovery of possession in Sundara Ramanujam Naidu Vs. Sivalingam Pillai and Another, , Krishnan, J., in that case held:--

The relief by way of giving possession arises from the relief granting the execution and delivery of the sale deed, title cannot be transferred under

the Transfer of Property Act where the value is over Rs. 100/- ; without the latter relief being granted, the former cannot; See Muhiuddin Ahmed

Khan v. Majlis Rai, ILR (1884) All 231. Nevertheless both the rights, viz., the first to the sale deed and the right to possession spring out of the

same contract though one necessarily precedes the other. The delivery of possession is a part of the specific performance of a contract of sale

unless the terms thereof show that the vendee was not under an obligation to deliver possession. The claim for delivery of possession is as much a

part of specific performance as the claim for the payment of the price is, when the seller brings the suit for specific performance."" (Italics are mine)

Venkatasubba Rao, J., who constituted the other member of the Bench observed:

Specific performance does not consist merely of the execution of a sale deed. A suit to obtain a sale deed is not what is referred to in the said

section, but it is a suit for specific performance of a contract of sale. The execution of a conveyance is only a part of the specific performance. If

the vendor agrees to execute a conveyance as well as to deliver possession it cannot be said that specific performance of the contract does not

comprise both the execution of the sale deed and delivery of possession. In every contract of sale, unless the contrary appears the vendor must be

deemed to impliedly agree to give possession of the property to the purchaser. In a suit for specific performance the purchaser seeks to enforce

the terms of his contract. The seller as much agrees to put the purchaser in possession as he agrees to execute a conveyance in his favour.

Even though the above decision also did not deal with the jurisdiction of the executing court after a decree for specific performance has been

passed, still the statement of the learned Judge which I have shown in italics will clearly show that giving possession of property specifically

directed to be sold is part and parcel of a decree for specific performance of an agreement to sell the property.

As I have already pointed out, there are several decisions of other courts of this country directly supporting the conclusion of the courts below

on the point in question. The earliest of the decisions is that of a Bench of the Patna High Court in Deonandan Prasad Singh v. Janaki Singh, AIR

1920 Pat 89. In that case, the Bench held that where the right to possession sprang out of the contract for sale, delivery of possession would be

included in relief by specific performance and generally the right arose coincidentally with the right to the execution of the conveyance. In so

holding, the Bench pointed out that if this court in ILR (1914) Mad 698 = AIR 1914 Mad 465 did intend to lay down a contrary view, the Patna

High Court would respectfully venture to differ.

The next decision is that of the same High Court in Atal Behary Acharya Vs. Barada Prasad Banerji, . In that case the question actually arose

with regard to the jurisdiction of the executing court with reference to a decree for specific performance of a contract of sale. The learned Judges

have held that incidental to the relief to which a plaintiff is entitled in a decree for specific performance arising on a contract for sale, the court has a

right to grant possession of the property; that a contract for sale includes not only the execution of the necessary document but also putting the

vendee in possession of the property; and that therefore if there is an omission in the plaint or in the decree about possession, the executing court is

not debarred from granting the plaintiff the possession of the property. Unfortunately, while coming to this conclusion, the learned Judges mistook

the decision of this court in ILR (1914) Mad 698 = AIR 1914 Mad 465. I have already referred to the fact that that decision was concerned only

with the bar imposed by Order II Rule 2, CPC and was not concerned with the jurisdiction of the executing court. Erroneously thinking that that

judgment denied the jurisdiction to the executing court to grant relief of possession, the learned Judges of the Patna High Court stated that in so far

as that decision held that the executing court had no right to delivery possession to a decree-holder in an action for specific performance, that

proposition had been expressly dissented from by the Patna High Court in AIR 1920 Pat 89 referred to already. Thus, it will be seen that both the

Benches of the Patna High Court in the two decisions referred to above would appear to have mistaken the scope of the decision of this court in

ILR (1914) Mad 698 = AIR 1914 Mad 465. Notwithstanding this mistake with regard to the scope of the decision of this court, the learned

Judges of the Patna High Court, if I may say so with respect, came to the correct conclusion that an executing court had jurisdiction to grant or

order delivery of possession in execution of a decree for specific performance. One of the reasons given by the learned Judges is that u/s 55 of the

Transfer of Property Act, one of the implied conditions of a contract for sale of immovable property is to give, on being so required, the buyer or

such person as he directs such possession of the property as its nature admits. Consequently, when the executing court directs delivery of

possession after a conveyance has been executed, it is merely completing the decree for specific performance by directing the vendor to perform

one of the obligations which he has undertaken to perform and which law imposes on him.

Mohamed Noor, J., in the above decision AIR 1931 Pat 179, observed-

There is no doubt that the plaintiff ''s suit was for specific performance of contract of sale. It would have been quite enough for him if he would

have simply prayed that the defendant be directed to specifically perform the contract for sale. If that relief was granted by the decree everything

which was necessary for the contract to be specifically performed could have been ordered and enforced in the execution"".

The above decision was followed by another Bench of the Patna High Court in Sri Sri Janardan Kishore Lal Singh Deo and Another Vs.

Girdhari Lal Sunda, .

Thus, the view of the Patna High Court has been uniformly to the effect that an executing court has jurisdiction to order delivery of possession,

while executing a decree for specific performance of an agreement either to sell an immovable property or to lease an immovable property.

The same view has also been taken uniformly by the Allahabad High Court. A Bench of that High Court in Arjun Singh Vs. Sahu Maharaj

Narain, took the view that where is a suit for specific performance of a contract of sale no relief for possession is claimed an consequently the

decree passed in the suit contains no relief for delivery of possession, the court executing the decree is competent to deliver possession, an order

directing delivery of possession being merely incidental to the execution of the deed of sale. This Bench, with reference to an argument advanced

on behalf of the judgment-debtor, based on the decision of this Court in Sundara Ramanujam Naidu Vs. Sivalingam Pillai and Another, , very

rightly pointed out that in that decision the court was not concerned with the question of the power of the executing court to direct delivery of

possession of property in executing a decree for specific performance of sale of that property. The learned Judges held-

What we have to consider is whether it is within the competence of the execution court not only to execute the deed of sale, but also to deliver

possession of the property, in pursuance of the decree for specific performance of a contract for sale. There can be no doubt that if a person sues

another for specific performance of an agreement to sell, and subsequently on the basis of the same agreement, sues for possession, the second suit

would be barred by Order 2, Rule 2, but if the subsequent suit is based on the cause of action flowing from the conveyance obtained in pursuance

of the decree in the first suit, it will not be barred by Order 2, Rule 2, as the cause of action for the second suit is quite distinct.

Order 21, Rule 32(5), CPC clearly provides that in case a decree for the specific performance of a contract for sale is not obeyed the court may

direct that the act required to be done under the decree may be done so far as practicable by the decree-holder or some other person appointed

by the court at the cost of the judgment-debtor. The nature of the relief granted by the decree in a suit for specific performance of a contract for

sale is such that everything which is necessary for the contract to be specifically performed should be held to be comprised in it. A contract for sale

includes not only the execution of the sale deed as required by the Transfer of Property Act, but also putting the vendee in possession of the

property sold. As soon as the property in question vests in the vendee. The delivery of possession by the execution court, therefore, appears to be

some thing incidental to the right of the decree-holder to have the contract specifically performed. The deed of conveyance is itself executed by the

execution court. An order directing delivery of possession to the vendee is merely incidental to the execution of the deed of sale"".

The same view was reiterated by another Bench of that court in Pt. Balmukand Vs. Veer Chand, . In that case, the Bench went a step further

and held that where a decree for specific performance of a contract of sale is silent as to the relief of delivery of possession, even though claimed in

the suit, the executing court is still competent to deliver possession. The learned Judges have pointed out that it is not necessary in a suit for specific

performance either to separately claim possession or for the court to pass a decree for possession and that a decree for specific performance of a

contract includes everything incidental to be done by one party or another to complete the sale transaction, the rights and obligations of the parties

in such a matter being indicated by Section 55 of the Transfer of Property Act. According to the learned Judges-

The decree for specific performance, which provides that the property shall be sold to the plaintiff by the defendants and the sale deed shall be

executed within a certain time, failing which the court will have the sale be executed within a certain time, failing which the court will have the sale

deed executed by a person nominated by it, implies that delivery of possession shall be given in accordance with the provisions of Section 55(1)(f)

of the Transfer of Property Act. Delivery of possession is a necessary ingredient and part of transfer of ownership.

The same is the view of the Calcutta High Court also. In Kartik Chandra Pal Vs. Dibakar Bhattacharjee, , a Bench of that High Court held-

It is incontestable that in a suit for specific performance of contract for the sale of land it is open to the plaintiff to join the same suit two prayers,

one for the execution of the deed of transfer and another for recovery of possession of the land in question....... The right to recover possession

springs out of the contract which is being specifically enforced and not on the narrower view expressed in some of the cases that it was only as a

result of the execution a right arises...... The usual form of a decree in a suit for specific performance is that the agreement is referred to be

specifically performed and carried into execution with a further provision about the details of the steps to be taken by the parties. The most

important part of the decree is that portion where the court directs the contract to be specifically performed. The details which follow do not in any

way limit the jurisdiction of the executing court to the particular steps which are mentioned in the decree but all such other steps which ought to be

taken for giving full effect to the decree for specific performance are not only within the competence of the court but the court is bound to assist the

party to that extent........ By the decree for specific performance the court sets out that it finds to be the real contract between the parties and

declares that such a contract exists and it is for the executing court to do the rest.

The same view was reiterated by another Bench of that court in Subodh Kumar Banerjee Vs. Hiramoni Dasi and Others, . The learned Judges

held-

Thus unless there is a contract to the contrary, giving delivery of possession to the buyer by the seller is an incident of a contract for sale and when

there is a decree directing the contract to be specifically performed it includes a direction upon the vendor to give delivery of possession to the

purchasers.

The same view was taken by the High Court of Madhya Pradesh in Dadulal Hanumanlala Vs. Smt. Deo Kunwar Bai, . The learned Judge held in

that case-

Under Section 55 of the Transfer of Property Act the rights and liabilities of buyer and seller, in the absence of a contract to the contrary, have

been enumerated and, as the contract in question (Ex. Para-1) is silent and there being nothing to the contrary as to the delivery of possession, it

has to be held that the vendor-defendants had contracted with the plaintiff-vendee to deliver possession to him over the property after execution of

the sale deed in his favour. It was a part of the entire contract and that come into existence simultaneously with that when the plaintiff went to the

court claiming specific performance of the contract (Ex. P-1) and was declared to be so entitled, the defendant-judgment-debtors would be

deemed to have been held also correspondingly liable not only to covey the property but also to place the plaintiff-decree-holder in possession

thereof on being so required by him.

The learned Judge has further pointed out that when the judgment-debtor refuses to execute the conveyance and the court executes the

conveyance, the court is substituted for the judgment-debtor and by virtue of that substitution, the court is entitled to direct the judgment-debtor to

put the decree-holder in possession of the property. The learned Judge went on the state:

Since under the Transfer of Property Act the right to ask for possession and right to obtain the same is implicit in the contract to transfer the

property then the decree-holder automatically gets that right to demand possession from the party conveying the property and that party in such a

situation being only the court, which had replaced the judgment-debtor and which had to act, therefore, on his behalf as his statutory agent, it

necessarily became liable to perform that part of the contract relating to delivery of possession also. What the court did was nothing but obeying

the decree recognising nothing but obeying the decree recognising the contract including performance of such further acts and things as would be

found requisite to give full effect to the same.

No other decision of any court bearing on this point was brought to my notice. As I have pointed out already, there is no decision of this court

holding that where a suit for specific performance of a contract, for sale has been decreed by a court, the executing court, while executing the

decree, has no jurisdiction to direct delivery of possession incidental to the execution of the conveyance in favour of the decree-holder. On the

other hand, as I have pointed out already, excepting the Nagpur High Court, in the solitary decision referred to above, all the other High Courts

have taken the view that the executing court has jurisdiction to grant the relief of possession as incidental to the execution of the decree for specific

performance of a contract for sale, and I prefer to follow these decisions.

Under these circumstances, I am clearly of the opinion that the conclusion of the courts below is correct and the second appeal fails and is

dismissed. There will be no order as to costs. No leave.

Appeal dismissed.