Jharkhand High Court
Pushpa Rani Paul vs Nitai Mukherjee And Ors. on 7 August, 2001
JUDGMENT Gurasharan Sharma, J.
1. Title Suit No. 11 of 1983 filed by petitioner against opposite party No. 2 for a decree for specific performance of agreement for sale executed in her favour some time in the year 1979, was decreed on 31.5.1985 on contest.
2. It is said that thereafter necessary sale deed pursuant to decree was executed. However, Execution Case No. 45 of 1990 filed by decree holder for obtaining delivery of possession was pending. Opposite Party No. 1, who was not a party to the suit, filed an objection purporting to be under Section 47 read with Section 151 of the Code of Civil Procedure, on the basis of which Misc. Case No. 6 of 1992 was registered.
3. It was claimed that objector had already purchased 2.34 Kathas land of plot No. 383 with house from the judgment debtor by registered sale deed dated 12.5.1981 and has already made certain additional constructions with boundary wall thereon and was in physical possession thereof.
4. According to her, the decree holder completely suppressed the fact and did not even show objector's house on the western boundary and suppressing the truth and practising fraud succeeded to get writ of delivery of possession issued, though there was no such decree for recovery of possession.
5. A rejoinder thereto was filed by Smt. Pushpa Rani Paul, the decree holder, wherein it was stated that out of total 5.75 Kathas land of plot No. 383. Smt. Nivarani Horo, the recorded tenant had executed agreement for sale in her favour for 3.60 Kathas of plot No. 383 and Nitai Mukherjee, the objector has purchased only the balance area of 1.75 Kathas and not 2.34 Kathas as claimed and objection under Section 47 of the Code was not maintainable at the instance of the objector who was not a party to the suit.
6. However, by impugned order dated 20.6.1997, Misc. Case No. 6 of 1992 was allowed and Execution Case No. 45 of 1990 was dismissed with observation that a perusal of suit records shows that there was a decree for specific performance of contract and there was no decree for delivery of possession.
7. It may not always be necessary for the plaintiff to specifically claim possession over the property, the relief of possession being inherent in the relief for specific performance of contract for sale. In other words demand of relief for specific performance of a contract for sale embraced within its ambit not only the execution of sale deed but also possession over the property conveyed under the sale deed. The fact that decree was silent with regard to the prayer for possession would be immaterial. A relief of possession being inherent in a relief of specific performance of a Contract for sale, such a relief need not necessarily by prayed for separately and a Court executing a decree for specific performance of such a contract can grant possession.
8. In my view, the executing Court committed a jurisdictional error regarding the impugned order. It is well settled that a decree for specific performance of contract for sale includes a decree for possession also.
9. I, therefore, set aside the impugned order. In the result, this Revision application is allowed, but without costs.
10. Revision allowed.