Madras High Court
A. Velliangiri (Deceased) And 3 Others vs M/S. Ram Bahadur Takur (P)Ltd., ... on 20 February, 1998
Equivalent citations: 1998(1)CTC436, (1998)IIMLJ298, 1998 A I H C 2752, (1998) 2 MAD LJ 298 (1998) 1 MAD LW 762, (1998) 1 MAD LW 762
Bench: Shivaraj Patil, M. Karpagavinayagam
ORDER
1. The plaintiff in the suit C.S.No. 237 of 1986 has filed this appeal, aggrieved by the order dated 26.7.1989 made in application No. 1818 of 1987 revoking the leave granted holding that this Court, on the original side, has no jurisdiction to try the suit by virtue of clause 12 of the Letters Patent. During the pendency of the appeal, the appellant died. Hence his Legal Representatives are brought on record.
2. In this Judgment of ours, we will refer to the parties as they are arrayed in the suit for convenience.
3. In the suit, the plaintiff prayed for a Judgment and decree for specific performance against the defendants 1 and 4 directing the 1st defendant and 4th defendant to execute a sale deed in favour of the plaintiff, transferring and conveying the property, more fully described in the Schedule hereunder known as Travancore Tea Estates Company Limited together with all buildings, factories, plantations, standing timbers and other machineries, plants erected therein, transport vehicles such as cars, jeeps, lorries, motor cycles, scooters and three wheeler and four wheeler vehicles, after the first defendant obtaining sanction from Reserve Bank of India within a time to be fixed by the Court, and indefault to direct an officer of this Court to execute the Sale Deed in favour of the plaintiff :
(ii) directing the first defendant to apply to the Reserve Bank of India for permission to sell the said property to the plaintiff for the price men-tioned in the agreement to sell and in default direct the officer of this Court who is empowered to execute the sale deed to get the necessary permission;
(iii) directing the defendants and especially the fourth defendant to deliver vacant possession of the suit property to the plaintiff ;
(iv) directing the defendant to pay to the plaintiff the costs of this suit, etc.
4. In the said suit the fourth defendant filed Application No. 1818 of 1987 for revoking the leave granted to file the suit in Application No. 1324 of 1986 by order dated 24.3.1986.
The suit is one for specific performance of an agreement dated 15.8.1973 on the basis of the agreement entered into between the plaintiff and the first defendant. The plaintiff filed the suit O.S.No. 459 of 1975 in the City Civil Court, Madras against defendants 1 to 3 for a decree for mandatory injunction directing defendants to perform one of the conditions contained in the agreement. The said suit was later transferred as ordered in a civil revision petition filed, and the same is now pending in this Court as C.S.No. 116 of 1975.
5. In the present suit C.S.No. 237 of 1986 the plaintiff has prayed for a decree for specific performance against defendants 1 and 4 directing them to execute a sale deed in favour of the plaintiff transferring and conveying the suit schedule property and directing the defendants, especially the fourth defendant to deliver vacant possession of the suit property to the plaintiff. Fourth defendant is a subsequent purchaser from the first defendant under registered sale deed dated 17.9.1976. The suit was filed on 6.1.1986 and leave to institute the same was granted on 24.3.1986 in Application No. 1324 of 1986 as already noticed above. That application was filed on the ground that the fourth defendant is residing and carrying on business outside the jurisdiction of this Court and a part of the cause of action has arisen within the jurisdiction of this Court.
6. Application No. 1818 of 1986 was filed by fourth defendant for revocation of the leave granted, stating that the suit is one for land, within the meaning of clause 12 of the Letters Patent, and since the land is not situated within the local limits of this Court, this Court has no jurisdiction to entertain the suit. The said application was opposed by the plaintiff.
7. The learned single Judge, on the original side after hearing the learned counsel for the parties, on the facts of the case, contentions of the parties, and referring to the various authorities elaborately, passed the common order disposing of few applications, but we are concerned in this appeal only to the order passed in Application No. 1818 of 1987 revoking the leave granted to the plaintiff. The learned single Judge allowed Application No. 1818 of 1987 and revoked the leave granted earlier in Application No. 1324 of 1986. Hence the present appeal is filed by the fourth defendant.
8. Shri Mohan, learned counsel for the plaintiff - appellants contended that since the suit filed was for specific performance of the agreement, the learned single Judge was not right in revoking the leave granted to the plaintiff earlier by the order under appeal. According to him the position of law is clear on this point. In support of his submission, he relied on few decisions.
9. Shri. C.A.Sundaram, learned senior counsel for the respondent No.1 urged that in the suit filed by the plaintiff, the plaintiff has not merely sought for the relief of specific performance; he has also sought for other reliefs; in particular he has sought for directing the defendants 1 and 4 to execute the sale deed in favour of the plaintiff, to transfer and convey the property, and directing fourth defendant to deliver vacant possession of the suit property to the plaintiff. He pointed out to certain averments made in the plaint and submitted as to how the title of the fourth defendant is sought to be affected; fourth defendant being a subsequent purchaser, his title to the property will be affected in case a decree is passed. Hence it may be taken that the suit is for land. In support of his submission he placed, reliance on few decisions.
10. The learned counsel for respondents 2 to 4 also argued justifying the order under appeal.
11. We have carefully considered the submissions made by the learned counsel for the parties.
12. The result of this appeal depends on the determination of the question whether the suit is for land coming within the ambit of Clause 12 of the Letters Patent. In order to decide the jurisdiction of a Court, we have to essentially See the plaint averments and the relief sought for in substance. Paragraphs 23,24, and paragraph 25 (to the extent relevant) of the plaint, read:-
"23. The plaintiff states that the defendant 1 and 4 having obtained a permission from the Reserve Bank of India collusively in fraudulent violation of the Foreign Exchange Regulation Act and notification passed thereunder, cannot be heard to rely upon the said permission obtained to sell the property to the 4th defendant to say that the plaintiff's suit has become infructuous.
24. The plaintiff respectfully submits that the Reserve Bank of India has been induced to believe as if the price of the property is Rs. 75,20,000 and has been induced to believe as if there is no other buyer and the agreement in favour of the plaintiff has been suppressed as stated above. Therefore, the permission of the Reserve Bank of India having been brought about in collusion by defendants 1 and 4 suppressing material facts is, therefore, void in law. The so called sale deed by 1st defendants in favour of 4th defendant is also void as it has been executed fraudulently in violating the Foreign Exchange Regulation Act and notification issued thereunder. As far as the plaintiff is concerned, the agreement is still in force and the application of the defendant 1 to obtain a valid permission from the Reserve Bank of India to sell the property to the plaintiff for a price of Rs. 1,42,42,500 is in force and it is the duty of the 1st defendant to apply permission even now.
25. The sale by the 1st defendant in favour of the 4th defendant and the permission obtained by the 1st defendant to sell the properly to 4th defendant and the sale deed dated 17.9.1976 by the 1st defendant in favour of the 4th defendant are all void and not binding on the plaintiff for the following reasons:
13. In paragraph 26 of the plaint it is also stated that the first defendant cannot rely on the fraudulent and void sale in favour of 4th defendant during the pendency of C.S.No. 116 of 1975. In paragraph 27 the plaintiff has averred that the fourth defendant is bound in law to deliver vacant possession of the suit property to the plaintiff. In paragraph 28 the plaintiff has stated that both the defendants 1 and 4 are liable to execute and register the sale deed in favour of the plaintiff.
14. The reliefs 1 and 3 sought in paragraph 31 of the plaint read:-
"(i) for a decree for specific performance against the defendants 1 and 4 directing the 1st defendant and 4th defendant to execute a sale deed in favour of the plaintiff transferring and conveying the property, more fully described in the Schedule hereunder known as Travancore Tea Estate Company Limited together with all buildings, factories, plantations, standing timber and other machineries, plants erected therein, transport vehicles such as cars, jeeps, lorries, motor cycles, scooters and three wheeler and four wheeler vehicles, after the first defendant obtaining sanction from R.B.I. within a time to be fixed by the Court, and in default to direct an officer of this Court to execute me Sale Deed in favour of the plaintiff.
(ii) .......
(iii) directing the defendants and especially the 4th defendant to deliver vacant possession of the suit property to the plaintiff."
15. It is not disputed that the suit schedule properties are situated outside the original jurisdiction of this Court. The reliefs sought for in the suit include a decree for specific performance against defendants 1 and 4 to execute a sale deed in favour of the plaintiff, transferring and conveying the property described in the schedule, and directing the defendants, specially fourth defendant to deliver vacant possession of the suit property to the plaintiff. As can be seen from the averments made in paragraphs 23 to 25 of the plaint, the plaintiff has questioned the validity of the permission obtained by defendants 1 and 4 from the Reserve Bank of India.
16. The plaintiff also contends that the sale deed executed by the First defendant in favour of the fourth defendant is void, slating that it has been executed fraudulently in violation of the Foreign Exchange Regulation Act and notifications issued thereunder; and that the sale deed dated 17.9.1996 executed by first defendant in favour of fourth defendant is not binding on the plaintiff. Thus it is clear that the plaintiff is questioning title of the fourth defendant over the suit property. In case the suit is decreed, the title of fourth defendant over the suit property will be certainly affected.
17. Further the plaintiff sought for a decree directing the defendant, and specially fourth defendant, to deliver vacant possession of the suit property to the plaintiff. In the event of plaintiff getting a decree, fourth defendant will be deprived of possession over the suit property. The suit is not one for specific performance simpliciter. It is settled law that in order to decide jurisdiction of Court, plaint averments are to be seen.
18. The learned single Judge in his well considered Judgment, referring to several decisions, concluded that the leave granted earlier to file the suit had to be revoked as prayed for in Application No. 1818/87 since the suit is for land coming within the ambit of first part of Clause 12 of the Letters Patent, and that the suit properties are situated outside the jurisdiction of this Court.
19. It may not be necessary for us to repeat the decisions referred to and relied on by the learned single Judge in his order. However, we will refer to few decisions having a bearing on the issue.
20. In P. Ramanatha Aiyar's Law Lexicon, 1987 edition, the expression 'suit for land' is defined as "The words 'Suit for land or other immovable property' in Clause 12, Letters Patent, 1865, mean a suit for the purpose of acquiring possession of, or establishing a title to, or a right in, land or other immovable property." Therein reference is made to the Judgment in I.L.R. 27 Madras 157, I.L.R. 33 Madras 257, and also I.L.R. 34 Madras 257 which is a decision of the Privy Council. It is further stated in the Law Lexicon that "the expression 'suit for land' must be construed as an action, the primary object of which is to establish claims regarding the title to property or possession of property and no suit can be described as a 'suit for land' as the result of the decision in which the title to, or possession of, immovable property will not in any manner or measure be directly affected".
21. The learned single Judge in paragraph 7 of the Judgment has referred to the case of M/s. Moolji Jaitha & Co. v. The Khandesh Spinning And Weaving Mills Co. Ltd, A.I.R. 1950 FC 83 in which each one of the five Judges who were on the Bench have defined and explained as to what is meant by suit for land as follows:-
(i) According to Kania, C.J., "in order to see whether a suit is covered by the expression 'suit for land' in Cl. 12, one has to consider whether it is for the purpose of obtaining a direction for possession or a decision on title to land, or the object of the suit is something different but involves the consideration of the question of title to land indirectly".
(ii) According to Fasal Ali, J., the expression 'suit for land' covers the following three classes of suits: (1) suits for the determination of title to land; (2) suits for possession of land; and (3) other suits in which the reliefs claimed, if granted, would directly affect title to or possession of land."
(iii) Patanjali Sastri, J. defined the terms as covering claims for recovery of possession or control of land, and that they are apt to connote also suits which primarily and substantially seek an adjudication upon title to immovable property or a determination of any right or interest therein.
(iv) Mahajan, J. observed as follows:-
"Where the nature of the suit is such that in substance it involves a controversy about land or immovable property and the Court is called upon to decide conflicting claims to such property and a decree or order is prayed for which will bring about a change in the title to it, that suit can be said to be in respect of land or immovable property; but where incidentally in a suit, the main purpose of which or the primary object of which is quite different, some relief has to be given about land, the title to it not being in dispute in the real sense of the term, then such a suit cannot fall within the four corners of this expression."
(v) B.K. Mukherjee, J. observed that the words "suit for land" means a suit for establishing title to land or any interest in the same or for possession or control thereof; and the decree sought for must be intended proprio vigore to be enforceable against and binding on the land itself.
22. The Apex Court, in Durga Prasad and another v. Deep Chand and others, has held that the title of the property passes from the vendor to the subsequent transferee and resides in him. The sale to him is not void but only voidable at the option of the earlier contractor. Since the title no longer rests in the vendor, he cannot convey title to the plaintiff unless steps are taken to re-vest the title in him. It is further held that in such case the proper form of decree is to direct the subsequent transferee to join in the conveyance so as to pass on title which resides in him to the plaintiff. Paragraphs 40 and 42 of the said Judgment read:-
"40. First we reach the position that the title to the property has validly passed from the vendor and resides in the subsequent transferee. The sale to him is not void but only voidable at the option of the earlier 'contractor'. As the title no longer rests in the vendor it would be illogical from a conveyancing point of view to compel him to convey to the plaintiff unless steps are taken to re-vest the title in him either by cancellation of the subsequent sale or by reconveyance from the subsequent purchaser to him. We do not know of any case in which a reconveyance to the vendor was ordered but Sulaiman C.J. adopted the other course in Kali Charan v. Janakdeo, A.I.R. 1932 All. 694 (B). He directed cancellation of the subsequent sale and conveyance to the plaintiff by the vendor in accordance with the contract of sale of which the plaintiff sought specific performance. But though this sounds logical the objection to it is that it might bring in its train complications between the vendor and the subsequent purchaser. There may be covenants in the deed between them which it would be inequitable to disturb by cancellation of their deed. Accordingly, we do not think that is a desirable solution.
(41)....
(42) In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin, A.I.R. 1931 Cal. 67 (C) and appears to be the English practice. See Fry on Specific Performance, 6th Edn. page 90, paragraph 207; also Potter v. Sanders, 1846 (67) E.R.1057 (D). We direct accordingly."
23. Applying the ratio of this Judgment, it follows that the fourth defendant in the case on hand has to convey title over the suit property to the plaintiff in the event the plaintiff succeeds. It means his title over the suit property would be affected. Added to this he has to deliver possession of the suit properties also. Under the circumstances, as rightly held by the learned single Judge, the present suit involves title to the property because fourth defendant has got title vested in him and that is sought to be disturbed by the plaintiff on the basis of the earlier contract between him and the first defendant. Hence we hold that the present suit is for land, keeping in view the law laid down by the Federal Court aforementioned and various other decisions referred to by the learned single Judge. When admittedly the suit properties are situated outside the jurisdiction of this Court, the leave granted earlier was rightly revoked by the order under appeal made in Application No. 1818 of 1987.
24. The learned counsel for the appellant placed reliance on a Division Bench decision of this Court in the case of N. Dhanalakshmi and two others v. S. Eknathan, Proprietor, Eknath Real Estates, to which one of us (Shivaraj Patil, J.) was a party, to contend that the suit for specific performance of the agreement to sell property is not suit for land, and hence the leave granted ought not have been revoked. In our view, the said Judgment does not help the plaintiff--appellant.
25. That was a suit principally for specific performance of an agreement, and alternatively for refund of money. In the said suit, ancillary relief of permanent injunction was sought, for restraining the respondents from alienating or dealing with the suit property in anyway. On the facts of that case it is clear that neither the suit was one for title or possession; in other words neither the title nor possession would be affected by granting a decree for specific performance. That was not a suit in which the primary object was to establish claims regarding title to the property or to possession of the property.
26. In the light of the arguments advanced by the learned counsel for the parties, the learned single Judge has also dealt with a case with reference to Sections 22 and 28(3) of the Specific Relief Act, 1963, and Section 52 of the Transfer of Property Act, in the light of the decisions cited. In our view, it may not be necessary for us to state them again in our Judgment, particularly so when the parties did not emphasise before us on all those points.
27. Thus on the clear and undisputed facts, so far as they are relating to the question of jurisdiction, we have no hesitation to hold that the present suit is for land coming within the scope of clause 12 of the Letters Patent, and the spit properties being outside the jurisdiction of this Court, the leave granted earlier was rightly revoked by the learned single Judge. We do not see any valid or good ground to differ with the conclusions arrived at by the learned single Judge.
28. In the result, for the reasons stated, this appeal is devoid of any merit. It is liable to be dismissed, and accordingly it is dismissed, but with no order as to costs.