Karnataka High Court
Baburao Fakira Patil vs Waman Topanna Sulgekar on 17 March, 2020
Author: Nataraj Rangaswamy
Bench: Nataraj Rangaswamy
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF NOVEMBER, 2019
BEFORE
THE HON'BLE MR. JUSTICE NATARAJ RANGASWAMY
R.S.A.NO.1224 OF 2005 (DEC)
BETWEEN
BABURAO FAKIRA PATIL
72 YEARS, OCC: AGRICULTURE,
R/AT KHADARWADI TQ;BELGAUM,
DIST;BELGAUM.PIN CODE-590 001. ... APPELLANT
(BY SMT.CHETHANA S.BIRAJ, ADV. FOR SRI.RAVI
KUMAR D GOKAKAKAR, ADV.)
AND
WAMAN TOPANNA SULGEKAR
SINCE DECEASED BY LR'S
1(A) SMT.MALATHI W/O WAMAN TOPANNA SULGEKAR
AGE: 62 YEARS, R/O KAMLESHWAR GALLI,
YELLUR, BELGAUM,
TQ:&DIST:BELGAUM, PIN CODE-590 001.
1(B) PRAKASH S/O WAMAN SULAGEKAR @ KADAM
AGE: 44 YEARS, R/O KAMLESHWAR GALLI,
YELLUR, BELGAUM,
TQ:&DIST:BELGAUM, PIN CODE-590 001.
1(C) *USHA D/O WAMAN SULAGEKAR @ KADAM
AGE: MAJOR*, R/O KAMLESHWAR GALLI,
YELLUR, BELGAUM,
TQ:&DIST:BELGAUM, PIN CODE-590 001.
1(D) MANOHAR S/O WAMAN SULAGEKAR @ KADAM
AGE: 44 YEARS, R/O KAMLESHWAR GALLI,
YELLUR, BELGAUM,
TQ:&DIST:BELGAUM, PIN CODE-590 001.
... RESPONDENTS
(BY SRI.VIJAYAKUMAR B. HORATTI, ADV. FOR SRI.RAVI G
SABHAHIT)
* CORRECTED VIDE COURT ORDER DATED
17.03.2020 THROUGH VIDEO CONFERENCE
2
THIS RSA IS FILED U/S 100 CPC AGAINST THE
JUDGMENT AND DECREE DATED: 31.03.2005 PASSED IN
RA.NO.214/2000 ON THE FILE OF THE III ADDL. CIVIL JUDGE
(SR.DN.), BELGAUM, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 01.06.2000
PASSED IN OS.NO. 1375/1989 ON THE FILE OF THE PRL.CIVIL
JUDGE (JR.DN.), BELGAUM.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed challenging the concurrent Judgment and Decree passed by the Prl. Civil Judge (Jr. Division) Belagavi in O.S.No.1375/1989 which was confirmed by the III Addl. Civil Judge (Senior Division) Belagavi in RA No.214/2000 in terms of the Judgment and Decree dated 31.03.2005.
2. The facts necessary for the adjudication of this appeal are that the respondent herein had executed an agreement of sale dated 03.09.1971, agreeing to sell the suit schedule property to the appellant herein for a total sale consideration of Rs.9,500/-. On the failure of the respondent to execute a deed of absolute sale, the 3 appellant filed OS No.323/1975 before the Civil Court for specific performance of the agreement. However, the appellant failed to seek additional relief of possession of the suit schedule property. The suit filed in OS No.323/1975 was decreed in terms of the Judgment and Decree dated 04.09.1982.
3. The respondent belatedly challenged the Judgment and Decree for specific performance in RA No.123/1982. The application for condonation of delay was rejected and consequently, the appeal filed in RA No.123/1982 was dismissed in terms of Judgment and Decree dated 15.07.1983. Thereafter, the respondent is stated to have filed C.R.P.No.2758/1983 before this Court which was withdrawn on 31.05.1984. Therefore, the Judgment and Decree of specific performance in OS No.323/1975 became final. The appellant herein filed Execution Petition No.122/1983 before the then III Addl. Munsiff, Belagavi, and the Commissioner 4 appointed by the Court executed a deed of absolute sale dated 12.12.1983 and transferred the suit schedule property to the appellant. The appellant filed an application in EP No.122/1983 for possession of the suit schedule property in terms of Section 55(f) of the Transfer of Property Act, which however was rejected by the Executing Court on the ground that no specific prayer for possession was sought for in the suit and possession of the suit property was not ordered in OS No.323/1975. The appellant, is stated, to have requested the respondent to hand over physical possession of the suit property on 13.12.1983 and 30.11.1984, which when refused, prompted the appellant to issue a notice dated 8.12.1984 that was served on the respondent. Since, the respondent failed to hand over possession of the suit property the appellant filed OS No.42/1985 on 18.01.1985 for not only the relief of possession of the suit property but also for mesne profit from the date of the sale deed till the 5 date of handing over actual possession of the suit property. This suit was returned for representation before the proper Court and was renumbered as OS No.1375/1989.
4. The respondent filed his written statement contending that the suit is not maintainable under Order II Rule 2 of CPC and that in view of the specific provision under Section 22 of the Specific Relief Act, it was incumbent upon the appellant to have sought for relief for Possession in addition to relief for Specific Performance. The respondent therefore, invoked Order II Rule 2 of CPC to contend that the suit is not maintainable. It is also contended that the appellant did not take proper and effective steps to take possession of the property on the basis of agreement of sale within two years and therefore, the respondent had perfected his title over the suit property by adverse possession.
6
5. The Trial Court had initially dismissed the suit in view of the express bar under Order II Rule 2 of CPC in terms of the Judgment and Decree dated 20.08.1993. This was challenged by the appellant before the Lower Appellate Court in RA No.149/1993. The lower Appellate Court allowed the appeal in terms of the Judgment and Decree dated 07.02.2000 and remanded the case for fresh consideration after framing issues and after giving opportunity to the parties to adduce evidence.
6. After remand the Trial Court framed issues and permitted the parties to adduce evidence. The Trial Court in terms of the Judgment and Decree dated 01.06.2000 dismissed the suit. The appellant herein filed RA No.214/2000 challenging the aforesaid Judgment and Decree passed by the Trial Court. The lower Appellate Court in terms of it's Judgment and Decree dated 31.03.2005, dismissed the appeal and 7 confirmed the decree passed in OS No.1375/1989. The appellant being aggrieved by the aforesaid Judgment and Decrees of the Courts below has filed this Regular Second Appeal.
7. This appeal was admitted by this Court on 10.03.2006 to consider the following substantial questions of law:
1. Whether the finding of the Appellate Court that the plaintiff is not entitled to the relief of Possession on the strength of sale deed obtained by way of decree in OS No.323/1975 filed for Specific Performance and that the suit filed is barred under Order II Rule 2 of CPC is bad in law ?
2. Whether the present suit for possession should be construed as one for possession based on the title deed executed pursuant to the decree in the suit for Specific Performance ?8
8. Heard the arguments of the appellant and the respondent, perused the plaint, the written statement, oral and documentary evidence as well as the Judgments of the Courts below.
9. It is evident that the suit for Specific Performance in OS No.323/1975 was decreed on 04.09.1982 and an appeal preferred there from by the respondent in RA No.124/1984 was dismissed on 12.07.1983. The CRP No.2758/1983 filed before High Court of Karnataka by the respondent was withdrawn on 31.05.1984. It is also evident from the record that the appellant obtained a deed of absolute sale on 12.12.1983 in E.P.No.122/1983. The suit from which the present appeal arises was for possession of the suit property and also for mesne profit from the date of the sale deed i.e.12.12.1983 till the date of handing over possession of suit property.9
10. The prime contention of the respondent is that the appellant had filed an application in Ex.P.No.122/1983 wherein, the appellant had sought for possession of the suit property and that the executing Court had rejected the application in terms of the Order dated 20.12.1983 (Ex.D-5). It is precisely for this reason that the respondent claimed that the present suit filed by the appellant for possession was barred under Order II Rule 2 of CPC. This is evident from the written statement of the respondent. Curiously, the respondent had not pressed into service Section 28(4) of the Specific Relief Act, probably because the suit was not merely for possession but also for mesne profits and the Court which passed the decree in OS No.323/1975 was not empowered to pass a decree for mesne profits.
11. Order II Rule 2 of CPC is extracted below:-
"2. Suit to include the whole claim-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause 10 of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court."
12. It is trite that the cause of action for a suit for specific performance commences from the date the defendant refuses to perform his part of the contract or when the defendant is obliged to perform his part of the contract on a particular date but refuses to do so by that date. The relief that can be claimed in a suit for specific performance is to seek for enforcement of the terms of the contract. The test to determine whether Order II Rule 2 of CPC was applicable in the present case to non-suit the appellant is "Whether there was cause of action for the appellant to claim the relief of possession when he presented the suit in OS No.323/1975?" If the answer to this question is in the affirmative then the appellant is liable to be non-suited and if the answer is in the negative, then the appellant is entitled to prosecute the suit without incurring the disqualification under Order II Rule 2 of CPC. 11
13. Insofar as the applicability of Order II Rule 2 is concerned it is profitable to refer to the Judgment of the Apex Court in the case of SUCHA SINGH SODHI V/S BALADEVRAJ WALIA AND ANOTHER, REPORTED IN 2018(6) SCC 733.
26. In our opinion, the sine qua non for invoking Order 2 Rule 2(2) against the plaintiff by the defendant is that the relief which the plaintiff has claimed in the second suit was also available to the plaintiff for being claimed in the previous suit on the causes of action pleaded in the previous suit against the defendant and yet not claimed by the plaintiff.
27. Therefore, we have to examine the question as to whether the plaintiff was entitled to claim a relief of specific performance of agreement in the previous suit on the basis of cause of action pleaded by the plaintiff in the previous suit against the respondents/defendants in relation to suit property. 29.1 First, the cause of action to claim a relief of permanent injunction and the cause of action to claim a relief of specific performance of agreement are independent and one cannot include the other and vice versa. In other words, a plaintiff cannot claim a relief of specific performance of agreement against the 12 defendant on a cause of action on which he has claimed a relief of permanent injunction. 29.2 Second, the cause of action to claim temporary/permanent injunction against the defendants from interfering in plaintiff's possession over the suit premises accrues when Defendant No.1 threatens the plaintiff to dispossess him from the suit premises or otherwise cause injury to the plaintiff in relation to the suit premises. It is governed by Order 39 Rule 1 (c) of the Code which deals with the grant of injunction. The limitation to file such suit is three years from the date of obstruction caused by the defendant to the plaintiff (See - Part VII Articles 85, 86 and 87 of the Limitation Act). On the other hand, the cause of action to file a suit for claiming specific performance of agreement arises from the date fixed for the performance or when no such date is fixed, when the plaintiff has noticed that performance is refused by the defendant. The limitation to file such suit is three years from such date (See - Part II Article 54 of the Limitation Act).
29.3 Third, when both the reliefs/claims namely, (1) Permanent Injunction and (2) Specific Performance of Agreement are not identical, when the causes of action to sue are separate, when the factual ingredients necessary to constitute the respective causes of action for both the reliefs/claims are different and lastly, when both the reliefs/claims are governed by separate 13 articles of the Limitation Act, then, in our opinion, it is not possible to claim both the reliefs together on one cause of action.
30. This Court in Rathnavathi & Another vs. Kavita Ganashamdas had the occasion to examine this very question on somewhat similar facts in detail. This Court after taking into account the earlier decisions of this Court which dealt with this question held in Paras 22 to 31 that bar contained in Order 2 Rule 2 of the Code on such facts is not attracted against the plaintiff so as to disentitle him from filing the subsequent suit to claim specific performance of agreement against the defendants in relation to the suit property.
14. It is also to be seen that Section 22 of the Specific Relief Act, enable the plaintiff to seek for possession of the suit property at any stage of the suit or even at the appellate stage. This also makes it clear that the relief of possession may or may not be claimed at the time of the suit is presented.
15. Further Section 28(3) of the Specific Relief Act provides that the plaintiff can apply to the same Court after the suit is decreed for specific performance to pass 14 further orders to grant further reliefs such as partition, possession etc. These provisions therefore make it clear that the suit filed by the appellant in OS No.1375/1989 is not hit by Order II Rule 2 of the CPC. This is also the law declared by a Division Bench of the Allahabad High Court in HAKIM ENAYAT ULLAH V/S KHALIL ULLAH KHAN which is extracted below:
"A decree for specific performance only declares the right of a decree holder to have a transfer executed in his favour of the property covered by the decree. The decree by itself does not transfer title. That this is so apparent from the fact that in order to get title to the property the decree holder has to proceed in execution in accordance with the provisions of Order 21 of CPC. So long as the sale deed is not executed in favour of the decree holder either by the defendant in the suit or by the Court, the title to the property remains vested in the defendant and till the execution of the sale deed the decree holder has no right to the possession of the property. It is only the execution of the sale deed transfer title to the property."
16. The respondent has contended that under Section 22 of the Specific Relief Act, the appellant was bound in 15 law to claim possession when he filed the earlier suit in OS No.323/1975 and therefore, he having not done so, the Courts below were justified in dismissing the suit. Section 22 of the Specific Relief Act reads as under:
22. 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 1[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.16
(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 under section 21.
17. The respondent had relied upon the judgments reported in ADCON ELECTRONICS PRIVATE LIMITED V/S DAULAT, LAWS (SC) 2001 9 117, RAPTAKOS BRETT AND COMPLAY LTD., V/S GANESH PROPERTY, (2017) 10 SUPREME COURT CASES 643 AND EXCEL DEALCOMM PRIVATE LIMITED V/S ASSEST RECONSTRUCTION COMPANY(INDIA) LIMITED AND OTHERS, (2015) 8 SUPREME COURT CASES 219 to contend that the relief of Specific Performance ought to have been followed by the relief of possession and that therefore a separate suit for possession is not maintainable. The Judgments referred above are rendered in the context of Section 22 of the Specific Relief Act and are inapplicable to the facts of this case.
18. In a suit for specific performance the plaintiff may or may not seek for possession of the suit property and 17 the same would depend upon the fact whether under an agreement of sale, the vendor had handed over the possession of the property or not. If the vendor has not handed over the possession of the property then the purchaser may file a suit for specific performance and also seek the additional relief of possession as provided under Section 22 of the Specific Relief Act. The word "may in an appropriate case ask for" makes it discretionary for the plaintiff to seek for the additional relief of possession. He may after obtaining a deed of sale still compel the defendant to hand over possession of the suit property as provided under Section 55(f) of the Transfer of Property Act. It is also to be noted in the present case that the suit property is an agricultural land and it is the first principle of law that possession follows title. The appellant has undisputedly purchased the suit property from the respondent in terms of the sale deed dated 12.12.1983 and therefore, it is deemed that he is in possession of the suit property by operation 18 of this legal fiction. However, in order to ensure that there is a formal hand over of the suit property, the respondent has to be called upon to hand over possession of the suit property. The appellant has therefore invoked the judicial process by filing the present suit for possession based on the sale deed executed in his favour and pursuant to the order passed in EP No.122/1983. In view of the fact that the respondent is under obligation to hand over the possession of the suit property once a sale deed is executed it cannot be gainsaid that the appellant cannot invoke the process of the Court. This is also the law laid down by the Apex Court in the case of Babulal V/s Hazari Lal Kishori Lal and Others reported in 1982(1) SCC 525.
19. In view of the above discussion, the suit filed in OS No.1375/1989 was not hit by Order II Rule 2 of CPC and the substantial question of law (1) is therefore, 19 answered in the affirmative and the Courts below were not justified in holding that the suit is barred under Order II Rule 2 of CPC or under Section 22 of the Specific Releif Act, 1963.
20. Insofar as 2nd substantial question of law framed by this Court is concerned, Section 5 of the Specific Relief Act deals with recovery of specific immovable property which is extracted below: "A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908."
21. Section 55(f) of the Transfer of Property Act is extracted below:
55. Rights and liabilities of buyer and seller-
(f) The seller is bound to give, on being so required, the buyuer, or such person as he directs, such possession of the property as its nature admits;
22. A reading of Sec. 55 (f) of Transfer of Property Act makes it clear that the seller is bound to give on being 20 so required the buyer or such persons as he directs such possession of the property as it's nature admits.
23. The appellant has filed the suit for possession of the suit property and also for mesne profits and thus, the cause of action for the suit for possession and mesne profit was the date when the appellant issued a notice dated 18.12.1984 calling upon the respondent to hand over possession (Ex.P-12). It is not the case of the respondent that he had not received the notice at Ex.P-
12. Since the suit filed by the appellant is for possession of the suit property under ordinary civil law, he is entitled to seek possession by filing separate suit. The appellant has filed the suit now as the owner of the suit property and he is entitled to recover possession of the same in accordance with Section 55(f) of the Transfer of Property Act. It is also to be noted that the sale deed (Ex.P-7) was executed on 12.12.1983 and the notice calling upon the respondent to hand over 21 possession of the suit property was issued on 18.12.1984 which is well within the time stipulated under Article 65 of the Limitation Act.
24. After the enactment of the Specific Relief Act, 1963, substantial changes were brought about in the law relating to enforcement of contracts. Amongst such changes were the inclusion of section 22 and Section 28 which were primarily meant to avoid multiplicity of proceedings. A reading of Section 22 and the law laid down by the Apex Court in the case reported 1982(1) SCC 525 makes it clear that possession or partition of refund of earnest money is a natural consequence that has to follow in the event of a grant of decree of specific performance.
25. In view of the insertion of Section 28, a decree of specific performance is now in the nature of a preliminary decree as the Court which pass the decree would not loose seisin over the subject matter of the 22 decree since the parties in the suit could seek rescission or further relief's in the suit. Thus, ideally if the appellant herein was to only seek for relief of possession without seeking the relief of mesne profits, then the bar under Section 28(4) would have been attracted. However, since the appellant has sought for additional relief of mesne profit which the Court in OS No.323/1975 could not have granted, the suit filed by the appellant in OS No.1375/1989 could still be proceeded with without incurring the caustic effect of Section 28(4) of the Specific Relief Act. The Trial Court has categorically held that the appellant has proved his title to the suit property and also that he is entitled for mesne profits.
26. However, having regard to the string of litigations that the appellant has initiated and thereby exposing the respondent to a long drawn litigation causing 23 pecuniary loss, it is inappropriate to grant the relief of mesne profits.
27. In view of the above, this Regular Second Appeal succeeds and the substantial questions are answered accordingly. The Judgment and Decree of the Courts below are set aside and this Regular Second Appeal is allowed. Consequently, the following:
ORDER The impugned Judgment and Decree of the Courts below in OS No.1375/1989 passed by the Prl. Civil Judge (Jr. Division) Belagavi as well as the Judgment passed by III Addl. Civil Judge (Senior Division) Belagavi in RA No.214/2000 are set aside and the suit in OS No.1375/1989 on the file of Prl. Civil Judge (Jr. Division), Belagavi is decreed. The respondent is directed to hand over possession of the suit 24 property to the appellant within three months from the date of this order.
RSA is disposed off.
No order as to cost.
Sd/-
JUDGE Hmb