Patna High Court
Kashi Prasad And Ors. vs Baiju Paswan And Ors. on 11 January, 1952
Equivalent citations: AIR1953PAT24, AIR 1953 PATNA 24
JUDGMENT Lakshmikanta Jha, C.J.
1. This application in revision is by the plaintiffs. The suit giving rise to this application was for specific performance of a contract of sale of certain land and for possession thereof with mesne profits from the date of the institution of the suit.
2. The plaintiffs' case, in short, is that the defendants first party entered into an agreement in writing and contracted to sell to them the land in dispute by a certain date for a consideration of Rs. 1700/- but they did not perform the contract and sold the land to the defendant second party and put him into possession thereof. On these allegations the suit was instituted in the court of the 2nd Munsif at Bhagalpur, the pecuniary limit of whose juris-diction was Rs. 2000/-.
3. The suit was valued at Rs. 1709/-, the amount of the consideration money, and court-fee was. paid thereon under Section 7(x)(a), Court-fees Act. It may be stated that this amount was also the value for the purpose of jurisdiction under Section 8, Suits Valuation Act.
4. There was a dispute as regards the amount of court-fee payable on the plaint. The contention of the defendants was that the suit should be valued according to the market value of the property under Section 7(v), Court-fees Act, The plaintiffs, on the other hand, urged that the suit should be valued at the amount of the consideration money under Section 7(x)(a), Court-fees Act, and that the court-fee paid was sufficient. The learned Munsif overruled the contention of the plaintiffs and held that the value of the suit for the purposes of court-fee and jurisdiction should be the market value of the land in suit. He accordingly held an enquiry and having found that the value of the land in suit was in excess of Rs. 2000/-, the limit of his pecuniary jurisdiction, returned the plaint for presentation to the proper court. Thereupon the plaintiffs preferred an appeal to the District Judge. The learned Additional District Judge, before whom the appeal came up for hearing, upheld the view of the learned Munsif but remanded the case directing the learned Munsif to give a clear finding as to the market value of the land in dispute. The plaintiffs have, therefore, come up to this Court in revision.
5. The case came up for hearing before a single judge of this Court, who has, on account of the importance of the question raised before him, referred it to a division bench and it has now come before us for hearing.
6. The question for decision is whether the court-fee on the plaint is payable according to the amount of the consideration under Section 7(x) (a) or on the amount at which the court may estimate the land with reference to the value of similar land in the neighbourhood under S, 7(v)(c), Court-fees Act, that is, on the market value of the land,
7. The contention of the defendants is that the property having passed into the hands of the defendant second party, who was not a party to the contract, the suit is, in substance, one for possession and mesne profits and ought to be valued under Section 7(v), Court-fees Act, at the market value of the land, and in support of this contention they have strongly relied on the case of -- 'Madan Mohan v. Gaja Prosad', 14 Cal LJ 159, and on a single Judge decision. of this Court in -- 'Rambahadur v. Banwari Lal', AIR 1929 Pat 642. The plaintiffs, on the other hand, maintain that the suit is for specific performance of a contract, pure and simple, even though there is a claim for possession and mesne profits, and the court-fee paid is sufficient because it falls under Section 7(x)(a), Court-fees Act, which specifically provides for suits for specific performance of contract of sale and states that the court-fee payable in the case of such a suit would be according to the amount of consideration, and in support of their contention they rely upon an unreported decision of this Court -- 'Chander Sekhar Pra-sad Singh v, Mt. Ramdhan Kuer', Civil Revn. No. 270 of 1925, D/- 22-10-1925 (Pat) and also on several reported decisions of other High Courts.
8. In my opinion, the contention of the plaintiffs must prevail. The suit is essentially one for specific performance of contract. The right to possession sprang out of the contract of sale and when the court is asked to give relief by giving possession, such a relief is comprised in the relief for specific performance of the contract of sale. The addition of the prayer for possession makes no difference. Under Section 27, Specific Relief Act, specific performance of the contract may be enforced against (a) either party thereto, or (b) any other person claiming under him by a title arising subsequently to the contract. If the land in suit had not been transferred by the defendants first party to the defendant second party subsequent to the contract, the plaintiffs could ask not only that the defendants be compelled to execute the necessary conveyance but also for delivery of possession to them after the execution of the necessary conveyance. But as the defendant second party is claiming under the defendants first party by a title arising subsequent to the contract of sale in favour of the plaintiffs, and not under any other title, he stands in the same position was the defendants first party and, therefore, if the suit for specific performance of the contract be decreed, the court must order possession to be delivered to the plaintiffs, either by the defendants first party or by the defendant second party, or by both. The fact that the defendant second party is not a party to the contract makes no difference in law be-
cause he derives title from the defendants first party under a sale-deed executed subsequent to the contract. The cause of action for delivery of possession is not different from the cause of action for the specific performance of the contract itself. It is also clear from para 6 of form No. 47 of the First Schedule to Appendix A of the Code of Civil Procedure that a prayer for possession is a proper prayer in a suit for specific performance. Therefore, the addition of a prayer for possession does not change the character of the suit even if a third party is in possession if such a person does not claim to be in possession under a paramount title.
9. If the plaintiffs do not claim possession in the suit for specific performance of the contract, it is doubtful whether a separate suit lor possession can lie by reason of the provision of Order 2, Rule 2, Civil P. C. The Madras High Court has held in -- 'Sundara Rama-nujam v. Sivalingam Pillai', 47 Mad 150 that such a suit would not lie, whereas the Allahabad High Court has taken a contrary view in
-- 'Arjun Singh v. Sahu Maharaj Narain', AIR 1950 All 415, but it is not necessary for us to decide this question in the present suit.
10. The defendant second party can defeat the suit only on the ground that he is a bona fide purchaser for value without notice, and if at the hearing he substantiates his case that he is a purchaser for value without notice, the suit for specific performance of the contract must fail, not only against him but also against the defendants first party. The plaintiffs cannot get possession unless they prove the contract and make out a case for specific performance thereof. In -- 'Muhi-ud-din Ahmad Khan v. Majlis Rai', 6 All 231, which was essentially a suit for specific performance of contract and in which a question of limitation was involved, it was held that "the right to possession springs out of the sale-contract, and the relief by giving possession is comprised in the relief by specific performance of the sale-contract." This view was followed by Tudball J. as Tax-Ing Judge in -- 'Nihal Singh v. Sewa Ram', 38 All 292. A similar question also arose in --
-- 'Sundara Ramanujam v. Sivalingam Pillai', 47 Mad 150, and in the course of his judgment Krishnan J. observed :
"The relief by way of giving possession arises from the relief granting the execution and delivery of the sale-deed, as without a registered 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 -- 'Mahi-ud-din' Ahmad Khan v. Majlis Rai', 6 All 231. Nevertheless both the rights, viz., the right 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."
The view taken by the Allahabad and Madras High Courts is also shared by the Bombay and Lahore High Courts (vide -- 'Muljibhai Pitambardas v. Bai Chanchal', ILR (1945) Bombay 32, -- 'Faqir Chand v. Ram Datt', 5 Lah 75). The "point directly arose for decision in an unreported case of this Court already referred to -- 'Chander Sekhar Prasad Singh v. Mt. Ramdhan Kuer', Civil Revn. No, 270 of 1925, D/- 22-10-1925 (Pat). In that case a suit was filed for specific performance of a contract and there was also a prayer for recovery of possession of the property. The plaintiff paid court-fee under Clause (v) of Section 7, Court-fees Act, treating the suit as one for recovery of possession. The Court below asked the plaintiff to pay court-fee under Clause (x) of Section 7 of the full consideration money, treating the suit as one for specific performance of contract. The case came up for hearing before Jwala Prasad, J. He, however, in the absence of any decision of this Court on the point and in view of the conflict of authorities on the question involved, referred the case for decision by a larger bench. The matter came up for decision before a division bench, and Das, J., with whom Adami,' J. agreed, held :
"I entirely agree with the view which has been-taken by the Court below. The learned Vakil relies upon the case of -- 'Madan Mohan v. Gaja Prosad', 14 Cal LJ 159, but in that case the question of Court-fee was not directly involved. I have no doubt that the learned Judge was right in looking at the suit as a suit for specific performance."
11. The defendants have strongly relied on the authority of the decision of the Calcutta High Court in -- 'Madan Mohan v. Gaja Pro-sad', 14 Cal LJ 159. Mookerjee, J, held in that case that where the plaintiff not only seeks specific performance of a contract of sale, but also asks that the defendant may be compelled to execute a conveyance and to deliver posses- sion of the property to him, the suit is in substance one for possession of the property and should be valued under Section 7, Clause (v), Court-Fees Act, according to the value of the subject matter. This decision was followed by a single judge of this Court in -- 'Rambahadur v. Banwari Lal', AIR 1929 Pat 642, and it appears that the unreported bench decision of this Court, already referred to, was not brought to his notice. For the reasons given by me, I am, with all respects, unable to agree with the view taken by the Calcutta High Court in -- V 'Madan Mohan's case', 14 Cal LJ 159, and by the single judge of this Court in -- 'Ram-bahadur's case', AIR 1929 Pat 642. The learned counsel for the opposite party invited our attention to a Special Bench decision of the Madras High Court in -- 'Suryanarayana-charyulu v. Ravi Narasimhamswami', ILR (1939) Mad 367 (SB) and contended that the view taken in -- 'Sundara Ramanujam v. Siva- lingam Pillai', 47 Mad 150 has been shaken. I am unable to accept this contention.
In the Special Bench case of the Madras High Court a lease had been granted for a term of twenty years which was to expire sometime in 1933. In 1929, however, the son of the grantor (who was since dead) granted a lease of the same property to another person for twenty years, the period to commence from June, 1935. A deed of lease was duly executed and registered in favour of the second lessee The second lessee sued for specific performance of they contract of lease, for possession of the properties and for the recovery of mesne profits, averring in his plaint that his lessor had, in collusion with the lessees under the first lease, put them into possession of the properties and refused his demand for possession. On these facts it was held that the suit was one for possession and not one for specific per-
formance. It may be observed that this case is clearly distinguishable. The first lessees did not derive title from the grantor of the second lease subsequent to the execution of the lease in favour of the second lessee. On the expiry of the first lease, the lessees under the first lease took possession of the leasehold, according to the allegation in the plaint, in collusion with the grantor of the second lease. Therefore, the suit was one for possession against strangers to the contract who were, according to the plaintiff, unlawfully withholding possession from him and did not fall within the mischief of Section 27, Clause (b), Specific Relief Act. Leach, C. J. in distinguishing the case of -- 'Sundara Rama-nujam v. Sivalingam Pillai', 47 Mad 150, observed :
"In this case defendants 2 to 16, are not according to the plaint, persons claiming under" the first respondent, but persons who have been put in possession of the property in collusion with the petitioner in order to defeat the first respondent."
Therefore, it cannot be said that the correctness of the decision in -- 'Sundara Ramanujam v. Sivalingam Pillai', 47 Mad 150, has in any way been shaken. Moreover, recently in --Jagropan v. Krishnadeo', 27 Pat 887, a bench of this Court, following the unreported decision in -- 'Chander Sekhar Prasad Singh v. Mt. Ramdhan Kuer', Civil Revn. No. 270 of 1925, D/- 22-10-1925 (Pat), has held that in a suit for specific performance of a contract of sale, in which there was a claim for recovery of possession and a prayer for injunction, the court-fee payable was under Section 7 (x), Court-fees Act, and it would make no difference simply because there was a prayer for posses-sion. Therefore, on an anxious consideration a of all the points raised before us, I am of the opinion that the case falls under Section 7 (x) (a). Court-fees Act, and the learned Munsif was wrong in returning the plaint.
12. I would accordingly allow the application set aside the orders of the Courts below and direct the trial court to accept the plaint as properly stamped and to proceed with the suit.
Reuben, J.
13. I agree. So far as we are concerned the point is concluded by the decisions in--
-- 'Chander Prasad Sekhar Singh v. Mt. Ramdhan Kuer', Civil Revn. No. 270 of 1925, D/-22-10-1925 (Pat) and -- 'Jagropan v. Krishna-dec', 27 Pat 887.
14. The impleading of a third party, relied on by learned Counsel for the respondents as distinguishing the decision in -- 'Sundara Ramanujam v. Sivalingam Pillai', 47 Mad 150. makes no difference. Section 27, Clause (b), Specific Relief Act, 1877, makes it clear that a suit for specific performance lies against a third party. In fact, where the property in suit has, subsequently to the contract, been transferred to a stranger, the transferee is a neces-.sary party to a suit for specific performance of the contract for, before it can grant the relief sought, the Court has to investigate whether the transferee is a 'bona fide' purchaser for value without notice.
15. 'Suryanarayanacharyulu v. Ravi Nara-simhaswami', ILR (1939) Mad 367 (SB), was not a case of specific performance. There the lease in favour of the plaintiff had been executed and registered and his title was complete. Further, as pointed out by my Lord the Chief Justice, the third party who was im-pleaded did not come within the mischief of Section 27, Clause (b).
16. The only new feature of this case is that there is a prayer for "mesne profits", that is to say, for compensation for loss suffered by the plaintiffs owing to delay in the performance of the contract of sale. A grant of compensation is within the powers of a Court before which a suit has been instituted for specific performance. In fact, it is a duty laid on the Court by Section 19, Specific Relief Act, which provides : (1) that where the Court refuses specific performance but considers that there has been a breach entitling the plaintiff to compensation, the Court 'shall' award him compensation, and (2) even where specific performance is granted, if the Court decides that it is not sufficient to satisfy the justice of the case and that some compensation should also be made, it "shall" award him compensation.
17. The section provides in its first para graph that the plaintiff may ask for compen-
sation, but the clauses just referred to laying a duty on the Court to grant compensation are not made dependent on such a request and the Court can grant compensation without such a request. -- 'Krishna Aiyar v. Shamanna', 23 Mad LJ 610; -- 'Callianji Harjivan v. Narsi Tricum', 19 Bom 764. Therefore, the inclusion in the plaint of a prayer for compensation does not alter the nature of the suit, and court-fee is payable thereon as on a plaint for specific performance.