Andhra HC (Pre-Telangana)
Sultan-Ul-Uloom Education Society ... vs Princess Fatima Fouzia D/O Late ... on 18 June, 2007
Equivalent citations: 2007(6)ALD315
JUDGMENT T. Ch. Surya Rao, J.
1. The instant appeal, after having obtained the leave of this Court, is sought to be filed assailing para 15(8) of the Judgment and condition 8 of the decree alone passed by the learned Chief Judge, City Civil Court, Hyderabad, inter alia in his common Judgment and decrees in O.S. No. 154 of 2003 and O.S. No. 181 of 2003.
The appellant is a third party to the suits. The first respondent herein filed the suits O.S. No. 154 of 2003 and O.S. No. 181 of 2003 for declaring the action of the trustees of the second respondent trust in declaring the third respondent, Prince Shahmat Ali Khan as the sole and only legal heir of Prince Muazzam Jah Bahadur as null and void; and for declaring her as one of the legal heirs of late Prince Muazzam Jah Bahadur being the eldest daughter through second wife and for consequential permanent injunction. Defendants 1 to 4 in the suit are respondents 2 to 5 herein.
2. At the culmination of trial and after having heard either side, the learned Chief Judge eventually dismissed both the suits with exemplary costs. Inter alia in sub-para 8 of para 15 of the Judgment the learned Judge directed the Special Executive Magistrate, Hyderabad, to handover the suit schedule mentioned property (herein after referred to as the property in dispute), forthwith to the third defendant who is the General Power of Attorney of the second defendant as per the procedure. The same direction having been incorporated in the decree drafted in conformity with the direction in the Judgment, the appellant is assailing only that part of the judgment and decree. The appellant has no interest whatsoever in the merits of the case or in the contentious issues in between the eo-nominee parties to the suits. Indeed the plaintiff who lost both the suits did not choose to file any appeals assailing the Judgment and decrees and consequently they attained finality in between the parties thereto. As a matter of that the appellant is not a party to any of the proceedings that preceded the proceedings in O.S. No. 154 of 2003 and O.S. No. 181 of 2003 in between the parties thereto. The appellant which claims to have been in possession of the property in dispute pursuant to an agreement of sale said to have been executed by the second respondent trust in its favour, having felt aggrieved by the impugned direction directing the Executive Magistrate, Hyderabad, to handover the property in dispute forthwith to the third defendant in those suits, which direction affects his rights over the said property, seeks to contend that such a direction was not germane having regard to the nature of the suits and the contentious issues raised therein by either of the parties thereto. On the premise that such a relief was not sought for by either of the parties to the proceedings and such a relief in fact could not have been granted while dismissing the suits in favour of the third defendant, particularly when no relief was claimed and no Court fee was paid in respect thereof in both the suits by the defendants by means of any counter-claim, the appellant seeks to file the instant appeal after having sought the necessary leave of the Court.
3. The leave initially granted by a bench of this Court was sought to be assailed before the Apex Court by filing a special leave petition which eventually ended in dismissal.
4. For brevity and better understanding of the matter it is expedient to notice certain facts in retrospect. H.E.H. The Nizam VII Sir Mir Osman Ali Khan Bahadur executed as many as 28 trust deeds. Validating the said trust deeds the Nizam Trust Deeds (Validation) Act, 1950 was passed. The Governor General of India was a party to those trust deeds. In the Schedule appended to the said Act, all the 28 trusts were enumerated. The trust deeds enumerated as items 1 to 4 inter alia in the Schedule are germane to the matrix of the case. As per the terms incorporated inter alia in those trust deeds late Nizam VII and his trustees were obliged to deposit a sum of Rs. 1,82,00,000/- with the Government for the benefit of Prince Muazzam Jah Bahadur and a sum of Rs. 30,00,000/- for the benefit of Princess Nilofer. It was further provided for in the said trust deeds that a sum not exceeding Rs. 20,00,000/- should be utilized for the purpose of providing a suitable residence for the Prince at Bombay. However, the Prince fell sick at Bombay due to climatic conditions and on the medical advice, he had to settle down in Hyderabad. The trustees filed a petition in case No. 237/2 of 1953 and 54 under Section 34 of Indian Trusts Act before the Chief Judge, City Civil Court, Hyderabad and obtained permission for purchase of residence at Hyderabad instead of Bombay. Accordingly, Mount Pleasant Palace' with its appurtenant land admeasuring Acs. 24.10 guntas situate at Shaikpet village, covered by Sy. No. 359, was purchased by the trustees for the official residence of the Prince. The Prince started living in the said palace from 24-02-1954 onwards.
5. While things stood thus, Princess Fathima Fouzia claiming herself to be the daughter of Prince Muazzam Jah Bahadur through his second wife Razia Begum started claiming that an extent of Acs.6.00 of land of 'Mount Pleasant Palace' was orally gifted to her by her father and possession was delivered on 30-12- 1970 and since then she had been in exclusive and uninterrupted possession of the same and that her father later executed a document on 05-03-1971 acknowledging the oral gift in her favour. She claimed further that Prince Shahmat Ali Khan was born through the third wife of late Muazzam Jah Bahadur by name Shahabzadi Anwari Begum and the marriage in between late Muazzam Jah Bahadur and Razia Begum was performed on 19-10-1948, whereas the marriage between him and Shahabzadi Anwari Begum was performed on 06-12-1952 and therefore she was one of the legal heirs. However, the second respondent trust declared the Prince Shahmat Ali Khan as the sole and the only legal heir of late Muazzam Jah Bahadur. Having been aggrieved by the said action of the second respondent Trust, Princess Fathima Fouzia filed the suit O.S. No. 154 of 2003 (old suit O.S. No. 3162 of 1998) seeking declaration that the action of the trustees in having declared Shahmat Ali Khan as the sole legal heir of late Muazzam Jah Bahadur as null and void and for declaring further that she was one of the legal heirs and for consequential permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit schedule mentioned property. The property described in the schedule appended to the said suit is the alleged subject matter of gift in favour of the plaintiff. She filed another suit in O.S. No. 181 of 2003 (old suit O.S. No. 2892 of 1998) against four other persons. Muazzam Jah Trust and Prince Shahmat Ali Khan were added as defendants 1 and 2 respectively in the former suit. Both the suits were hotly contested and were disposed of by means of common judgment dated 21-07-2003 by the learned Chief Judge, City Civil Court, Hyderabad. The consequential relief of perpetual injunction in the suits sought for by the plaintiff was negatived by the Court. It appears that preceding those two suits, the plaintiff therein filed O.S. No. 921 of 1979 before the II Assistant Judge, Hyderabad, seeking the relief of injunction against the second respondent Trust and the Trust in turn filed O.S. No. 243 of 1982 on the file of the IV Additional Judge, City Civil Court, Hyderabad. Both the suits were tried together and disposed of by dismissing the suit filed by her in O.S. No. 921 of 1979 while decreeing the other suit filed by the trustees. Thus, she suffered an order of injunction granted by the Court in favour of the trustees. That judgment even attained finality. In the meanwhile, it appears in view of the dispute between the parties over the property in dispute the Special Executive Magistrate, Hyderabad, initiated proceedings under Section 145 of the Code of Criminal Procedure and the property in question was placed under the custody of the Mandal Revenue Officer. Subsequently, as per the direction given by the High Court of Andhra Pradesh, the M.R.O. was said to have released the property in favour of the Trust.
6. Again it seems that on a report dated 5-7-1998 submitted by the Inspector of Police, Pangagutta, the Executive Magistrate initiated proceedings under Section 145 of the Code of Criminal Procedure on 8-7-1998 and directed the attachment of the property in dispute pursuant to which the M.R.O., Shaikpet, took possession of the property under a panchanama dated 10-7-1998. In the meanwhile the appellant filed a suit O.S. No. 297 of 2004 seeking the relief of specific performance against the second and third respondents herein before the III Additional Chief Judge. City Civil Court, Hyderabad. The plaint was ordered to be rejected in that suit by the learned Additional Chief Judge. Assailing the said order C.C.C.A No. 196/2006 was filed by the appellant before this Court which is pending adjudication. But these subsequent events have not been brought on record during the course of trial in the suits.
7. Having regard to the same, it appears both the suits in O.S. Nos. 921 of 1979 and 243 of 1982 were disposed of as aforesaid in favour of the trustees. Having due regard to this earlier litigation preceding the suits in O.S. Nos. 154 of 2003 and 181 of 2003 the learned Chief Judge came to the inevitable conclusion that the plaintiff lost her possession, title and was resorting to vexatious litigation and consequently dismissed both the suits holding that the plaintiff was not the legal heir of Prince Muazzam Jah Bahadur and Prince Shahmat Ali Khan alone was the legal heir and the plaintiff could not claim any right over the suit schedule mentioned property as late Muazzam Jah Bahadur had no authority to sell or gift the property covered by the trust deed and, therefore, the second respondent Trust had rightly declared the third respondent as the only legal heir. The learned Judge further held that the plaintiff was not entitled to any injunction. While thus holding so, the learned Judge further directed the Special Executive Magistrate, Hyderabad, to handover the property in question forthwith to the third defendant in the suit.
8. The Appellant is disputing the alleged taking possession of the property in dispute by the M.R.O. and is claiming to have been in possession of the entire property of 'Mount Pleasant Palace' admeasuring Acs. 24.10 guntas from 1980 onwards having agreed to purchase the same by means of an agreement of sale from the trustees. Obviously, the appellant was not a party to either of the suits disposed of under the impugned common Judgment dated 21-07-2003 by the learned Chief Judge, City Civil Court, Hyderabad, in O.S. No. 154 of 2003 and O.S. No. 181 of 2003.
9. Sri Vilas V Afzalpurkar, learned senior counsel, seeks to contend that the direction given inter alia in the Judgment and incorporated consequently in the decree is quite unwarranted, is without jurisdiction and would prejudicially affect the interests of the appellant and that the alleged proceedings taken up by the Executive Magistrate under Sections 145 and 146 of the Code of Criminal Procedure and the alleged taking possession of the land in dispute admeasuring Acs.6.00 having not been brought on record before the Court during the course of trial in the above two suits and as the record was totally silent about the existence of any such proceeding, the impugned direction of the learned Chief Judge is quite unwarranted and without jurisdiction.
10. Per contra, Sri P.M. Gopal Rao, learned senior counsel, seeks to contend that the appellant has no prima facie case even to establish his possession over the disputed property; that inasmuch as the alleged agreement to sell the property in dispute by the second respondent Trust in favour of the appellant is not valid as the Trust is not competent to alienate the property as per the terms of the trust deed; that having regard to the proceedings initiated by the Executive Magistrate under Sections 145 and 146 of the Code of Criminal Procedure possession of the disputed property was taken over by the M.R.O., Shaikpet village, under a panchanama and delivery of possession by the M.R.O. to the second respondent was effected pursuant to the direction given inter alia in the impugned Judgment by the learned Chief Judge the instant appeal rendered itself otiose.
11. In view of these rival contentions, the questions that arise for determination in this appeal are thus:
(1) Whether the appellant has a prima facie case and the instant appeal is maintainable?
(2) Whether it is appropriate for the Court to have issued a direction to the Executive Magistrate to deliver the property in dispute to the General Power of Attorney of the third respondent?
12. As regards the prima facie case, obviously the appellant is a third party to the impugned Judgment. The appellant filed a separate application in C.C.C.A.M.P. No. 487 of 2006 under Order 41, Rule 27 of the Code of Civil Procedure to receive the documents annexed therewith as additional evidence. The documents sought to be filed are (1) order of Division Bench of this Court dated 19.01.2004 granting leave to the appellant; (2) order of the Supreme Court dated 24.01.2005 dismissing the special leave petition; (3) certified copy (sketch/plan) of Urban Land Ceiling Authority dated 05.11.2004; (4) original letter of Municipal Corporation of Hyderabad dated 19.08.2005; (5) plan of the affected portion; (6) demand notice dated 22.07.2005; and (7) paper publication in Hindu daily dated 01.08.2006. Of the above documents, the first two documents being the order granting leave by a Division Bench of this Court and the order of the Apex Court dismissing the special leave petition are quite not germane for deciding the merits of the case. It is only after the leave has been granted by this Court, the appeal has come up for hearing. The other documents appear to have some relevance. The certified copy of the plan showing the ground position of T.S. No. 2/1, 2/2 and 2/3 shows the entire land in dispute admeasuring Acs. 24.10 guntas. Western side vacant property covered by the said plan appears to be the property in dispute. The second document is a notice issued by the Assistant City Planner to the appellant requesting it to extend co-operation in the road widening programme inasmuch as a part of the premises is likely to be affected in the said road widening programme, annexing therewith a map showing the affected portion. The third document is the property tax bill for the year 2004-2005 said to have been paid by the appellant. The fourth document is a public notice got issued in a Hindu daily on behalf of the respondents disputing the claim of the appellant. These documents prima facie show the claim of the appellant and have a bearing on the merits of the instant appeal. The appellant had no occasion to file them before the trial Court inasmuch as it was not a party to those two suits. Therefore, as a requirement of the Court for effective adjudication, the documents shall have to be received and are accordingly directed to be received.
13. On behalf of the third respondent, C.C.C.A. M.P. No. 523 of 2006 has been filed requesting the Court to receive certain documents as additional evidence under Order 41, Rule 27 of the Code of Civil Procedure. The learned Counsel appearing for the second respondent trust also filed a similar application in C.C.C.A. M.P. No. 703 of 2006 under Order 41, Rule 27 of the Code of Civil Procedure requesting the Court to receive a copy of the trust deed as additional evidence. In view of the scope of the appeal and for effective adjudication of the matter, as a requirement of the Court these miscellaneous petitions also deserve to be considered and accordingly are ordered. The documents sought to be filed by the third respondent are (1) written statement filed by the appellant in O.S. No. 3162/1998, renumbered as O.S. No. 154/2003; (2) affidavit filed by the Secretary of the appellant in C.M.P. No. 9606/2004 in C.C.C.A. No. 104 of 2004; (3) Judgment in Writ Petition No. 24449/2005 in between the third respondent and the Municipal Corporation of Hyderabad; (4) Judgment in O.S. No. 297/2004 rejecting the plaint by the III Additional Chief Judge, City Civil Court, Hyderabad; (5) order and decree in I.A. No. 2104/2005 in O.S. No. 297/2004. The third respondent filed the suit O.S. No. 1207/2000 seeking the relief of permanent injunction in respect of Acs. 4.10 guntas of land along with existing structures thereon. Nothing turns out from these documents except the respective claims. In a way, they show the rival claims. As regards the Judgment in O.S. No. 297/2004 it is a consequential one to the order passed in I.A. No. 2104/2005 while rejecting the plaint. A reference has already been made in the matrix of the case about the latter two documents.
14. It is not appropriate to consider in this appeal at length the validity or otherwise of the alleged agreement of sale in favour of the appellant said to have been executed by the second respondent Trust inasmuch as it is the subject matter of another suit filed by the appellant seeking specific performance in O.S. No. 294/2004, more significantly having regard to the fact that the scope of the appeal is limited. Parties have obviously not gone in for trial on these contentious issues. Therefore, this cannot be effectively adjudicated in the instant appeal which might result in prejudicial effect to the rights of either of the parties in the other suit filed in regard thereto in O.S. No. 294/2004.
15. Suffice in this appeal if there is a prima facie case in his favour so as to assail the impugned direction given by the learned Chief Judge, City Civil Court. The legal notice by means of a publication in the newspaper given at the instance of the respondents by their counsel is germane of all the documents filed on the side of the appellant which clearly shows the dispute in between the parties as regards the property in dispute. Payment of property tax, as rightly contended by the learned Counsel for the respondents, cannot buttress the contention of the appellant. One aspect which needs to be noticed is that the property in dispute is a vacant site although surrounded by a compound wall.
16. No effective possession can be shown by anybody over a vacant site. Therefore, for the purpose of satisfying as to whether the appellant has prima facie case, as discussed hereinabove, the very public notice got issued by the respondents through their counsel is sufficient enough to constitute a prima facie case in favour of the appellant apart from the fact that the appellant sought to file a suit O.S. No. 297/2004 seeking the relief of specific performance as regards the property which includes the property in dispute.
17. It may be reiterated here that Princess Fathima Fouzia who claimed title and possession over the property in dispute which is a part of the 'Mount Pleasant Palace' eventually lost her claim over the same and possession in favour of the second respondent Trust and the litigation attained finality after the dismissal of the two suits under the impugned common Judgment. The impugned common Judgment being not inter parties cannot bind the appellant obviously.
18. Nonetheless the impugned Judgment cannot be overlooked having regard to the fact that one of the parties to the instant appeal is a party thereto and even otherwise it can be a valid piece of evidence like any other piece of evidence.
19. While the appellant claims to have been in possession over the entire Acs. 24.10 guntas of land whereon the 'Mount Pleasant Palace' is situate, the third respondent claims that the appellant has never been in possession having regard to the spate of earlier litigation and as the possession of the disputed property was obviously taken by the Mandal Revenue Officer under a panchanama and delivered it back to him under another panchanama by means of an official act performed while discharging his official functions and, therefore, primacy shall be given to those proceedings which clearly establish that the possession lies with the contesting respondent. The property in question is a vacant site surrounded all around by a compound wall. In respect of a part of the entire property admeasuring Acs. 24.10 guntas inclusive of the building, there seems to be an earlier litigation in between the appellant and the contesting respondents. The extent of the property involved therein seems to be Acs. 14.00 and odd. All this litigation appears quite not germane to be considered in the instant appeal having regard to the limited scope involved in this appeal as discussed hereinabove.
20. The quintessence of the grievance of the appellant seems to be that the impugned direction given by the learned Chief Judge directing the Executive Magistrate to deliver possession to the second respondent is the relief which cannot be granted in favour of the contesting defendants while dismissing suits filed by the plaintiff who claimed to have been in possession of the property in dispute. It may be made clear here that the action on the part of the Executive Magistrate albeit under the impugned direction given by the Civil Court, indubitably is within the competence of the Magistrate who has allegedly taken possession of the property in dispute while attaching the same under Section 146 of the Code of Criminal Procedure to direct the delivery of the same to the person or persons who are entitled to be in possession in his perception and view. Therefore, the action on the part of the learned Executive Magistrate in directing the delivery of the property in dispute to the second respondent cannot be questioned and indeed is not being assailed in the appeal also. It is no doubt true that it is still open to the appellant to maintain its stand that its possession is uninterrupted and the proceedings, if any, taken behind its back cannot bind it. Indeed, it has been sought to be assailed in a different proceeding by the appellant which has been eventually adjudicated by a Bench of this Court in a Writ Petition No. 1779 of 2003 and Writ Appeal No. 1687 of 20031. By an order dated 04-11-2003 this Court dismissed the writ petition filed by the appellant against the second respondent herein seeking to assail the proceedings initiated by the Executive Magistrate under Sections 145 and 146 of the Code of Criminal Procedure. In view of the said Judgment, which attained finality, it is now not open to the appellant to contend that the action on the part of the Executive Magistrate no more binds it. Therefore, the validity of the direction given by the civil Court under the impugned judgment remains to be an issue of academic interest.
21. Admittedly, the plaintiff in both the suits O.S. No. 154/2003 and O.S. No. 181/2003 filed those suits seeking a declaration that the action of the trustees of the trust declaring the second defendant as the sole and only legal heir of third defendant as null and void and for declaration that the plaintiff is one of the legal heirs of late Prince and for consequential perpetual injunction restraining the defendants from interfering with peaceful possession and enjoyment of the suit schedule property. Those suits were resisted mainly on the flank that the status claimed by the plaintiff was not correct and she was not the legal heir of late Muazzam Jah Bahadur. The consequential relief of injunction was resisted on the premise that the plaintiff had never been in possession of the disputed property. Having regard to the above competing claims of the parties, the issues germane for consideration before the Civil Court were as to whether the plaintiff was the legal heir of late Muazzam Jah Bahadur as claimed by her and as to whether she had been in possession of the property in dispute as claimed by her. It may be reiterated here that the contesting respondents 3 to 5 herein are the defendants therein. While denying the relief as claimed by the plaintiff and eventually dismissing the suits, obviously the Civil Court cannot grant any relief in favour of the defendants. There has been no counter claim filed by the defendants therein. Therefore, the Civil Court has no option except to dismiss the suits but no relief whatsoever can legitimately be granted in favour of the contesting defendants in those two suits. It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties. It is the case pleaded that has to be founded. Vide Trozen & Co. v. Nagappa . The direction given in the impugned Judgment is not at all germane as per the matrix of the case. More significantly, the Civil Court cannot grant such a relief in favour of the defendants while dismissing the suits, in the absence of any counter-claim in respect thereof. I am reinforced in my above view by a Judgment of the Apex Court in C. Periaswami Gounder v. Sundaresa Ayyar . That was a case where the suits were filed by the trustees of the temple for title and for eviction of the archakas from the suit property. The Archakas raised the plea that the title of the deity was confined only to melvaram and that they had title to the kudivaram. The trial Court as well as the High Court confirmed the title of the deity to both the interests and negatived the title of the archakas. However while decreeing the suits in favour of the temple, the High Court allocated half of the lands in each of the suits for the remuneration of the archakas to be divided equally. When that was assailed before the Apex Court, the Apex Court held that the conclusion of the High Court was quite unsupportable and allowed the appeals filed by the trustees.
22. In view of the authoritative pronouncement of the Apex Court, the impugned direction given by the Civil Court in para 15(8) of its Judgment and condition No. 8 of the decree drafted in conformity therewith directing the Executive Magistrate to deliver possession of the property in dispute to the contesting respondents therein cannot be sustained and is liable to be set aside. Of course, as discussed hereinabove, the action of the Executive Magistrate in delivering the property although pursuant to the direction given by the Civil Court can independently be sustained inasmuch as having taken possession by initiating the proceedings under Sections 145 and 146 of the Code of Criminal Procedure it is within his competence to direct delivery of the property to the person who, in the perception of the learned Executive Magistrate, is entitled to the possession. The aggrieved party has the right to file a suit claiming right, title and interest, inasmuch as the orders passed in a preventive action under Section 145 of the Code of Criminal Procedure are always co-terminus with the orders of the Civil Court. The action on the part of the Executive Magistrate if any has not been assailed in the instant appeal. Therefore, that action cannot now be questioned and no relief in regard thereto can be granted in the instant appeal.
23. Lengthy arguments have been addressed in this appeal by the learned Counsel appearing for the third respondent, initially questioning the leave granted by this Court; and secondly that the appellant having filed a separate suit for specific performance cannot be permitted to prosecute that suit and the instant appeal as well simultaneously and it must elect one among those two remedies and having not done so, it is estopped by the doctrine of election. Apropos the first point, it needs to be mentioned that initially the instant appeal was sought to be filed before a Division Bench of this Court as per the procedure in vogue by then. The Division Bench of this Court after having heard on either side granted leave to file the instant appeal. Having been aggrieved by the said order granting leave to the appellant, the contesting respondents approached the Apex Court by filing a special leave petition. That special leave petition eventually ended in dismissal. In view of the changed procedure the instant appeal has been directed to be heard by a Single Judge. Therefore, the respondents cannot now legitimately raise the legality or otherwise of the leave granted by a bench of this Court again before this Court even if the contention were to be accepted on the legal front.
24. To buttress the second contention, the learned senior counsel appearing for the third respondent seeks to place reliance upon a Judgment of the Apex Court in Mahabir Prasad Jain v. Ganga Singh . That was a case where the respondent Ganga Singh initially filed a suit for permanent injunction against the appellant and the Municipal Corporation of Delhi for perpetual injunction to restrain them from dispossessing him. The Court granted an ad interim injunction in his favour. The respondent thereafter filed an application before the Additional Rent Controller under Section 45 of the Delhi Rent Control Act for restoration of the electricity supply, which had been disconnected by the appellant. That was allowed. Again the respondent filed another suit against the appellant under Section 6 of the Specific Relief Act and sought for a decree for possession. Under those circumstances, the Apex Court was of the view that the way in which the respondent had been instituting different proceedings in different fora within a short time making inconsistent allegations shows that the respondent had been abusing the process of Court and had not come to the Court with clean hands. Obviously, this Judgment has no application to the matrix of the instant case.
It is next sought to be relied upon the decision of the Allahabad High Court in Purshottam Dass Tandon v. State of U.P. . In para 5 of its Judgment a Bench of the Court held thus:
In law where a person, having two alternative courses of actions mutually exclusive choose to adopt one and rejects the other expressly or impliedly then he is said to have elected to choose one. He is subsequently precluded from adopting the course which he intended to reject. It is known as doctrine of election. Like estoppel it is also child of equity. It is founded on the principle that one should not be permitted to approbate and reprobate that is blow hot and cold in same breath. It has been extended and applied as an aspect of estoppel to prevent a person from falling a victim to what would have otherwise resulted injustice to him and unfair advantage to other.
25. Even this Judgment has no application to the peculiar facts obtaining in the instant case. The remedy of filing a suit for specific performance and filing the instant appeal with the leave of the Court assailing the direction given by the Civil Court to deliver the property to the third defendant are obviously not mutually exclusive. The appellant who claims to have been in possession can certainly assail such a direction given in a suit by the Civil Court where the appellant is not a party. Filing of the suit for specific performance basing on the alleged agreement of sale is altogether an independent and distinct relief. Therefore, both the reliefs are not mutually exclusive. Hence the principle of estoppel cannot legitimately be raised in the instant case.
26. The next decision upon which reliance has been sought to be placed is in Gulf Fishing & Co. v. Orissa State Financial Corporation . That was a case again the Orissa State Financial Corporation initially filed a suit against its debtor for recovery of the loan and later wanted to take recourse to the powers under Section 29 of the State Financial Corporations Act. Both remedies are obviously against the same debtor and the same property which was the subject matter of mortgage. The suit filed on the foot of mortgage bond was decreed.
27. Under those circumstances it was held that the Corporation having obtained the mortgage decree in its favour cannot be permitted to avail the other remedy under Section 29 of the State Financial Corporations Act. Such is not the situation obtaining in the instant case. Therefore, this decision too has no application to the instant case.
28. Finally the Judgment of the Court of Appeal, Civil Division, in Official Custodian for Charities v. Mackey (1984) 3 All. E.R. 703. It was held thus:
For the purposes of the common law doctrine of election, where a person had an unrestricted choice between two mutually inconsistent courses of action which affected his rights, knowledge of the right to elect was a precondition to making an effective election and there could be no knowledge of the right to elect unless the person knew his legal rights as well as the facts giving rise to those rights.
29. Even the said Judgment has no application to the peculiar facts of the instant case.
30. From the above it is obvious that a party cannot be permitted to prosecute two parallel remedies which are mutually exclusive and he must elect one out of those two remedies. The common law doctrine of election can be invoked only when a person knowingly seek to prosecute two mutually inconsistent and exclusive remedies simultaneously and he has an unrestricted choice to elect one out of those two. But that doctrine of election has no application when the two remedies sought to be prosecuted simultaneously are alternate remedies or distinct and separate claims, more significantly when they are not mutually exclusive.
31. The appellant admittedly filed a suit for specific performance of the alleged suit contract of sale agreeing to convey the entire extent of land admeasuring Acs. 24.10 guntas with the building thereon known as 'Mount Pleasant Palace'. Such a suit is obviously distinct and separate. The question germane for consideration therein is undoubtedly whether there has been such an agreement to sell the property in question and whether the plaintiff is entitled to the relief of specific performance for other reasons. The legality or otherwise of the direction given by the Civil Court under the impugned Judgment inter alia cannot be the subject matter of that suit. The contention, therefore, that the appellant cannot prosecute these remedies simultaneously merits no consideration. For the same reasons, as discussed hereinabove, the other contention that the appellant is estopped by election of remedies, cannot also be countenanced. Therefore, both the contentions sought to be raised by the learned Counsel appearing for the second respondent merit no consideration in the instant appeal.
32. For the above reasons, the appeal is allowed and the impugned direction of the learned Chief Judge, City Civil Court, Hyderabad, given in para 15(8) of the impugned Judgment and condition 8 of the decree drawn in conformity therewith are hereby set aside. Under the circumstances, there shall be no separate order as to costs.