Calcutta High Court
Uco Bank vs Sm. Ratni Devi Jain And Ors. on 31 January, 1997
Equivalent citations: (1997)2CALLT321(HC)
Author: Barin Ghosh
Bench: Barin Ghosh
ORDER Barin Ghosh, J.
1. This is an application of the defendants seeking dismissal of the suit on the ground that the suit is a suit for land situate outside the jurisdiction of this court and thus, depriving this court of its authority to entertain or try the suit; alternatively the issue as to the maintainability of the suit in this court or lack of territorial jurisdiction of this court to entertain or try the suit be heard and determined as a preliminary issue before the hearing of any other issues.
2. In the plaint, the plaintiff has prayed for the following reliefs:-
"(a) Specific performance of the agreement as mentioned in paragraph 9 hereof by directing the defendants to execute and register the conveyance in respect of the said three flats, of the total carpet area of not less than 3,000 sq. ft. (each having a carpet area of 1000 sq. ft.) with four covered garages or car parking spaces in a covered area together with all rights, benefits and advantages of the common facilities and conveniences reserved for common use of the occupants of the proposed new building at the premises being No. 62/7, Ballygunge circular Road, Calcutta-700- 019, in favour of the plaintiff or its nominee or nominees.
(b) In the event the defendants fail to execute such conveyances, the Registrar, Original Side, of this Hon'ble Court, be directed to execute and register the conveyances in respect of the said three flats as fully described in prayer (a), in favour of the plaintiff or its nominee or nominees.
(c) Mandatory injunction directing the defendants to renew the Bank Guarantee as mentioned in paragraph 13 of the plaint or issue new Bank Guarantee as per the terms of the agreement dated December, 8, 1984 in favour of the plaintiff, for the rent payable by the defendants to the Landlord of the temporary accommodation provided to the plaintiff, for the period commencing from the date of the decree till execution of the conveyances with regard to the three flats and four covered car parking spaces as fully described in prayer (a).
(d) Administration.
(e) Receiver.
(f) Injunction,
(g) Costs.
(h) Further or other reliefs."
3. In support of the aforementioned reliefs, the plaintiff has alleged in the plaint, inter alia, that the plaintiff was inducted in premises No. 62/7, Ballygunge Circular Road, Calcutta, under a registered indenture of lease. While the plaintiff was enjoying the lease right in the said premises, the defendants No. 1,2,3 and 4 approached the plaintiff with the proposal that if the plaintiff temporarily shifted from the said premises, the said defendants would construct a building there at and make over to the plaintiff on ownership basis three flats of 1000 sq. ft. each with four garages free of costs and also arrange for temporary accommodation for the plaintiff during the period of construction. The plaintiff agreed to the said proposal for exchange of tenancy right in respect of the said premises for right of ownership of three flats or the total carpet area of 3000 sq. ft. and four covered garages or car parking space in the new building to be constructed at the said premises. Accordingly on 8th December, 1984 an agreement was entered by and between the plaintiff and the defendants No. 1,2,3, & 4, which agreement was subsequently modified by an agreement dated 10th February, 1987. As it appears, the agreement dated 8th December, 1984 was subject to the defendants purchasing the ownership right in the said premises from the then owners thereof, and on 28th August, 1985 the defendants by obtaining nine conveyances in their favour acquired the ownership right in the said premises, which was recorded in the agreement for modification dated 10th February, 1987. The plaintiff has contended that it has performed its part of the obligation under the agreement by vacating the said premises and shifting to the temporary accommodation provided by the defendants at premises No. 59/2A, Pratapaditya Road, Calcutta 26 and similarly the defendants furnished a bank guarantee for Rs. 3,26,000/ - in terms of the said contract, but the defendants failed and neglected to deliver vacant possession of the three flats in the newly constructed building at the said premises to the plaintiff in terms of the said agreement despite such construction was apparently completed by the defendants and also failed and neglected to renew the bank guarantee despite requests and despite the plaintiff applying for specific performance of the said agreement.
4. The agreement between the parties provides that to enable the defendants to construct the proposed building at the said premises, the plaintiff shall transfer the leasehold interest in the said premises by vacating or delivering vacant possession of the said premises to the defendants at a consideration of Rs. 8,00,000/- which will be set off against an equivalent amount representing the purchase consideration of the alternate accommodation to be provide in the building to be constructed comprising of three flats of 1000 sq. ft. each and costs of construction and costs of land absolutely and for ever free from encumbrances with all rights, benefits and advantages of usual in common facilities and the defendants in addition to such alternate accommodation providing the plaintiff with the temporary accommodation in three flats containing a total carpet area of not less than 3000 sq. ft., each containing a carpet area of 1000 sq. ft. together with four garages or car parking space in a covered area in Calcutta, in good locality and condition during the period of construction or payment by the plaintiff the existing rent of Rs. 1500 payable by the plaintiff in respect of the said premises; and that so soon as the proposed building is constructed and completed in all respects and made ready for occupation, the defendants shall deliver to the plaintiff vacant possession, in the proposed new building, three flats of the total carpet area of not less than 3000 sq. ft., each having a carpet area of 1000 sq. ft. with four covered garages or car parking space in covered area together with all rights, benefits and advantages to use in common the facilities and convenience reserved for common use of the occupants of the proposed new building subject to payment by the plaintiff proportionate shares of the taxes, charges and expenses in respect of the flats to be allotted, transfered and conveyed to the plaintiff in the proposed new building on ownership basis. The defendants shall furnish a bank guarantee for Rs. 3,26,000 in order to secure the differences in rent for the temporary accommodation agreed to be provided at premises No. 59/2 Pratapaditya Road, Calcutta. The agreement also provided that in the event of default of the defendants to deliver and make over possession to the plaintiff of the said three flats within 24 months from the date of delivery of vacant possession of the said premises, the plaintiff will have the right to enforce the specific performance of the agreement and also to get damages and in the alternative, at the option of the plaintiff, to obtain payment of the sum of Rs. 8,00,000/- representing the purchase consideration together with interest at the rate of 12% per annum from the date of demand to the date of actual payment thereof.
5. The defendants, therefore, in the present application have contended that the principal object of the present suit is to obtain possession of three flats in the building newly constructed at the said premises, which is situated outside the jurisdiction of this court. They, therefore, contend that the suit is a suit for land in respect of a land situate wholly outside the jurisdiction of this court and therefore, this court could not entertain the suit at all.
6. Order 14, Rule 2, of the Code of Civil Procedure, 1908 provides that where issues both of law and of fact arise in the same suit and the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first If that issue relates to the jurisdiction of court and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. Therefore, an issue relating to the jurisdiction of court may be tried as a preliminary issue.
7. At the same time order 7 Rule 10 of the Code provides that at any stage of the suit the plaint shall be returned to be presented to the court in which the suit should have been instituted. This provision has been inserted in order to enable the court to return the plaint to the plaintiff so as to enable the plaintiff to present the same at the appropriate court and not to face dismissal of the suit on a trial and determination of the issue relating to jurisdiction either by way of a preliminary issue or on an issue while dealing with other issues. The power under this provision should be exercised only by reading the plaint and by accepting the averments made in the plaint to be true and correct in order to reach to a conclusion whether the plaint has been presented in a wrong court or not.
8. By Order 49, Rule 3, sub-rule (1) of the Code the provisions contained in Order 7 Rule 10 was made inapplicable to Chartered High Courts in exercise of their ordinary original civil Jurisdiction. By the amendment dated 14th May, 1974, published in the Calcutta Gazette part (1) dated 1st August, 1974. of the High Court Rules, Original side of this court, the provisions contained in Order 49 Rule 3 sub-Rule (1) were deleted in so far as this Chartered High Court is concerned. Therefore, since 1st August, 1974 the provisions contained in Order 7 Rule 10 of the Code are applicable to this court.
9. In the suit the defendants have already filed a written statement. In that, I am told, it has not been alleged that this court has no jurisdiction to entertain the suit. Be that as it may, the hearing of the suit has not yet commenced. The point of Jurisdiction is substantially a point of law, although based on certain facts. The fact that the premises in question in 62/7, Ballygunge Circular Road, Calcutta is not disputed. It cannot also be disputed that the said premises is situate outside the jurisdiction of this court, although in the written statement it has not yet been urged so. That plea by way of introduction of an amendment can always be taken. If such plea is taken, which cannot be denied factually, the remaining would become a question of law in order to ascertain whether this court has jurisdiction to receive the suit. However, in the present application itself the defendants have asserted that the premises in question is situate outside the jurisdiction, which has not been denied. The right to raise objections as to the Jurisdiction is available atleast until upto the date of settlement of issues; admittedly as yet issues have not been settled. Before such settlement by making the present application the defendants have urged that this court had no competence or jurisdiction to receive the suit at the time when the plaint was presented in this court. Therefore, I do not see as to why a preliminary issue as to the Jurisdiction cannot be directed to be raised after giving the defendants an opportunity to amend their written statement, but I would not do so; since, if I do so, and if the ultimate conclusion on the issue is that this court had no jurisdiction to entertain the suit, on that conclusion itself the suit may be dismissed, which in turn would cause irreparable prejudice to the plaintiff. Therefore, I would look at the plaint and accept that the subject premises is situate outside the jurisdiction of this court, which contention of the defendants has not been denied by the plaintiff, in order to find out whether the suit was instituted in a wrong court, and if so, to return the plaint to the plaintiff for being presented in the right court.
10. Section 54 of the Transfer of Property Act, 1882 defines sale as a transfer of ownership, in exchange for a price paid or promised or part paid or part promised and such transfer in the case of tangible immovable property of the value of Rs. 100/- and upwards, can be made only by a registered instrument but in the case of tangible immovable property of a value less than Rs. 100/-, such transfer may be made either by a registered instrument or by delivery of the property. It also says that delivery of tangible immovable property takes place when the seller places the buyer or such person as he directs in possession of the property. In the instant case the value of the immovable property is in excess of Rs. 100/-. To effect the sale of the property in question i.e. transfer of ownership, a registered instrument is what is needed. The said section, further provides that a contract for the sale of immovable property is a contract that a sale of such property shall take place on the terms settled between the parties and a contract for sale does not, of itself create any interest in or charge on such property. The present suit is for enforcement of contract for sale of the subject property. Such sale can be made only by a registered instrument on the terms settled between the parties as enumerated in the contract. By that contract, no interest or charge in the property has been created. The interest on the property will only be created after the registered instrument is obtained.
11. Section 55 (1) (d) & (f) of the Transfer of Property Act, 1882 provides the respective rights and liabilities of the buyer and seller of immovable property in the absence of a contract to the contrary. The provisions contained in the said section makes it obligatory on the part of the seller to execute a proper conveyance on payment or tender of the amount due in respect of the price of the property and to give, on being so required by the buyer such possession of the property as its nature admits. These two obligations, i.e. to execute conveyance and to give possession of the seller are statutorily recognised in the absence of a contract to the contrary.
12. It, therefore, logically follows that a contract for sale of an immovable property, although does not of itself create any interest in or charge on such property. But may contain terms settled between the parties to the effect that seller on payment or tender of the amount due in respect of price for such property shall execute a proper conveyance of the property and shall give, on being so required by the buyer, such possession of the property as its nature admits, but in absence of such terms being settled between the parties, the law will presume such obligations on the part of the seller provided there is no contract to the contrary. The transfer of ownership of the immovable property, being the subject metter of the contract, specific performance where of has been sought for in this suit, can be made only by a registered instrument. The Contract, being the subject matter of the suit, has not itself created any interest or charge on the property and interest in the property will be created when transfer of ownership is made by a registered instrument. The terms settled between the parties specifically provide the obligations of the defendants to give vacant possession of the property agreed to be sold and also to convey the same i.e. to execute a proper conveyance in order to effect transfer of ownership of the property agreed to be sold. Thus, the right to obtain conveyance as well as vacant possession of the property in question is flowing from the contract itself specific performance whereof has been sought for.
13. Grant of specific performance of a contract for sale of an immovable property is discretionary. If the court refuses to grant such a discretionary relief, then there would be no question of sale of the immovable property and consequently there would be no question of executing any conveyance or giving possession of such property. If the court grants such discretionary relief, if would direct the parties to act in terms of the terms settled by them, since the court cannot import any term not settled between the parties, nor can disregard or delete any term settled between the parties, since the same would tantamount to creation of a new contract between the parties by the court, which the court is incompetent to do. Thus, if the suit is decreed, the same would be a decree for specific performance of the contract embodying terms settled between the parties and not any or few of such terms, which in turn would postulate execution of a proper conveyance and giving of vacant possession by the defendants, although the plaintiff has sought for execution of conveyance only.
14. The nature of the suit i.e. whether the same is a suit for land or other suit, should be determined having regard to the primary object of the suit as on the date of presentation of the plaint filed in the suit and not on what relief or reliefs the plaintiff may ultimately get in the suit. This is so since the court's competence to receive, try and determine a suit is circumscribed by law. By Clause 12 of the Letters Patent, this court has been vested with the Jurisdiction to receive, try and determine suits. Under Clause 12 of the Letters Patent, suits have been divided into two classes, i.e. suit for land or other, immovable property and other suits. In the case of suits for land or other immovable property, this court will have jurisdiction to receive such suits, if the land or immovable property in question is situate wholly within the local limits of the Ordinary Original Civil jurisdiction of this court. If the land or immovable property is situate partly within the local limits and partly outside such limits, the suit can be instituted in this court only after first obtaining leave of this court under Clause 12. In the case of other suits, the same can be instituted in this court, if the cause of action arises wholly within the local limits of the ordinary original civil Jurisdiction of this court or the defendant resides or carries on business or works for gain within such limits. Where, however, the cause of action arises in part only within such limits, the suit can be instituted after first obtaining leave of the court under Clause 12. Therefore, to find out whether this court was competent to receive the suit, one has to ascertain whether the suit is a suit for land or the same is an other suit and if it is a suit for land whether the land is situate within the jurisdiction of this court and if partly within and partly outside whether leave had been obtained first before presentation of the plaint and if it is an other suit whether the cause of action has wholly arisen within the jurisdiction of this court or whether the defendants are residing or carrying on business or working for gain within the jurisdiction of this court and if not whether the leave under Clause 12 had been obtained first before presentation of the plaint suit. The defendants contend that the suit is a suit for land wholly situate outside the Jurisdiction of the court; whereas the plaintiff contends otherwise.
15. As has been said by the Division Bench of this court in T.B.K.S. Maharaj v. Mayapore Sri Chaitanya Math, , the question whether out of several reliefs in the plaint, the claim for the grant of a particular relief, which does not relate to title to, or possession, control or management of land or buildings or other immovable property, is the primary object of the suit or not has to be decided by applying the test whether such relief claimed to be the primary object of the suit can be granted to the plaintiffs without the necessity of any adjudication on the question of title to any land or buildings or other immovable property, or possession, control or management thereof. Thus, it is required to be found out whether the primary object of the suit i.e. specific performance of the contract, can be granted to the plaintiff without the necessity of any adjudication on the question of title to the flats in the new building, or possession, control or management thereof.
16. In All India Sugar Mills Co. Ltd. v. Sunder Singh , a learned single Judge of this court held that a suit by a purchaser for specific performance of an agreement to sell land is a suit for land with the observation that he should have held English Law to be the key to the construction of Clause 12 and this suit, therefore, is not a suit for land. This view was not approved by the Division Bench of this court in Debendra Nath Chowdhury v. Southern Bank Ltd. . In Debendra Nath Chowdhury v. Southern Bank Ltd. the Division Bench approved the views of this court in Promod Kumar Das v. Dantmara Tea Co. Ltd. ILR (1947) 2 Cal 113, and in Sm. Khatun Bibi v. Sm. Lilabati Dasi, 49 CWN 80, where it was held that both the Indian and English Courts can pass a decree which operates in personam upon the individual requiring him to do or to abstain from doing some specific act provided the party is within its jurisdiction so that the court can enforce its decree and that a claim by a purchaser against a vendor for specific performance of a contract for sale of land was not a suit for land within the meaning of Clause 12 of the Letters Patent. In Sm. Khatun Bibi v. Sm Lilabati Dasi, if was held that this court has Jurisdiction to entertain in its original side a suit for specific performance but when in a suit the plaintiffs also asked for recovery of possession, it became a suit for land and the court would then have no Jurisdiction to entertain the suit if the land is situate outside the Jurisdiction of this court. In Krishnammal v. Sundararaja Aiyar AIR 1914 Mad 464, the plaintiff had obtained in a previous suit a decree against the defendants for specific performance of an agreement to sell certain immovable property to the plaintiff and had got a sale deed in his favour by execution of the decree. The plaintiff, thereafter, instituted a subsequent suit for recovery of possession of the land, being the subject matter of the deed. It was urged that the second suit was barred by Order 2, Rule 2 of the Code of Civil Procedure, 1908. The Division Bench held in that case that the plaintiff was required to sue not only for the execution of the deed for sale but also for possession of the suit, but he was not bound to do so as at the time he brought the suit, the right to possession was not vested in him. He would acquire that right only on the execution of deed of conveyance. In a suit for specific performance the parties to the contract alone are made parties, whereas in a suit for possession all persons in possession are proper parties. In strict form the right to sue for possession on the title of the plaintiff does not arise untill the conveyance has been executed in his favour and unless thereafter the vendor refuses to give possession, there cannot be cause of action therefor. In Moolji Jaitha & Co. v. K.S. & W. Mills Co. AIR 1950 FC 83, the defendants were the secretaries and treasurers of the plaintiff company and, as such, were in management of the miles owned by the plaintiff. After the defendants seized to be such secretaries and treasurers of the plaintiff, it brought a suit alleging wrongful action by the defendants in breach of their fiduciary obligation in course of their employment. In addition to the prayer for a general account of the defendants' management of the plaintiffs' affairs and business during the whole period, when the defendants were functioning as such secretaries and treasurers, and certain other connected prayers, the plaintiff asked for two reliefs concerning certain lands said to have been acquired by the defendants on behalf of the plaintiff and out of the moneys or other property belonging to the plaintiff, but in the name of the defendants, lands were situate outside the local limits of the Jurisdiction of the Bombay High Court. It was claimed (a) that it may be declared that the said lands belong to and are the property of the plaintiff company and that the defendants have no beneficial interest therein: (b) that the defendants may be ordered to execute all such documents and deeds, and do such acts as may be necessary for transferring the said lands to the name of the plaintiff company. In the suit, the defendants had filled a written statement contending that in respect of the prayers mentioned above, the court had no jurisdiction to try the suit on its original side as the lands in question were situate outside the Original Civil Jurisdiction of the High Court. On the pleadings, several issues were raised, one of them was, "whether this Hon'ble Court has jurisdiction to entertain the suit in so far as it relates to prayers (a) and (b) of the plaintiff." By consent, that issue was agreed to be tried as a preliminary issue. The trial judge decided the said issued in favour of the defendants. On appeal, that judgment was reversed and it was held that on the plaint as it stood, as a whole, the court had Jurisdiction to try the suit in respect of prayers (a) and (b) also. The defendants, thereafter, approached the Federal Court by filing an appeal. Five learned Judges, namely, Kania C.J., Fazi All, Patanjali Sastri, Mohajan and B.K. Mukherjea JJ. comprised the Bench of the Federal Court who decided the said appeal. Kania C.J., Fazi All and Patanjali Sastri JJ. dismissed the appeal whereas Mahajan and B.K. Mukherjea allowed the appeal. Fazi Ali, J. dismissed the appeal on the ground that all connected suits between the parties should be tried in the same court and even if the objection as to jurisdiction raised by the defendants succeeds, It would be still open to the High Court to transfer the suit which may thereafter be instituted by the plaintiffs at Jalgaon, the place where the lands were situate, and try it along with the suits pending before it, since during the pendency of the suit in the Bombay High Court, the defendants had instituted a suit in the District Court at Jalgaon, claiming title to the very land and that suit had been transferred to the High Court, where a counter-claim had been made on behalf of the plaintiff in the High Court suit by which it had claimed virtually the same reliefs in regard to the Jalgaon, lands as they have claimed in their suit. Fazi Ali, J. also observed that if the objection of the defendants in regard to Jurisdiction succeeds, it will necessitate splitting up of the present suit, which, according to them, is of a composite nature, and in the those circumstances, it is hardly a fit case either for granting special leave or for invoking the discretionary Jurisdiction of the High Court to grant a certificate under Section 109(c) of the Code. In that view of the matter, the learned Judge felt it unnecessary to deal with the so-called substantial question of law, namely, what is the meaning of the expression "suit for land". The learned Judge thereafter observed, "If I had really felt that I was called upon to decide it, I would have agreed with the line of cases in which it has been held that, broadly speaking, 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." The learned Judge, thereafter, observed, "since the reliefs to which reference has been made are not the only reliefs claimed in the suit, there is a much more important question involved in the appeal, namely, whether the present suit as a whole is a suit for land and whether the High Court is entirely precluded from giving any relief to the plaintiff in regard to lands at Jalgaon. On this question, I shall refrain from expressing any opinion for the obvious reason that it would be wholly unnecessary to do so, if the appeal is to be dismissed on a preliminary ground." Kania C.J., on the other hand, held, in order to see whether the suit is covered by the expression "suit for land" in Clause 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. Patanjali Sastri, J. similarly held that the words "suits for land or other immovable property" in Clause 12 besides obviously covering claims for recovery of possession or control of land, 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. Kania C.J. and Patanjali Sastri, J. also held that the equitable principles, on which English Courts have exercised the Jurisdiction in personam, in respect of-land situate outside the jurisdiction of the court, against person locally within their jurisdiction in cases where there is equity between the parties arising from contract, fraud or trust, can be taken into consideration in determining the true scope of the High Court Original Civil Jurisdiction. Kania C.J., also held that Clause 19 of the Letters patent the court to apply the equitable principles of English Law despite Clause 12 of the Letters Patent. Patanjali Sastri, J., however, observed that the court's power to act in personam can, in a proper case be taken into consideration in judging whether a suit is a suit for land within the meaning of Clause 12 of the Letters Patent. The said learned Judges, namely Kania C.J. and Patanjali, J. held that the plaintiffs sought in regard to the lands at Jalgaon was the fulfilment of the personal obligation, which, it was claimed, the law cast upon the defendants to hold properties for the benefit of the plaintiff and to execute the necessary instruments conveying to them the legal title in those properties, an obligation arising out of the fiduciary relation between the parties and the circumstances relating to the acquisition of the properties as alleged in the plaint and since the defendants resided and carried on business in Bombay, they were amenable to the jurisdiction of the High Court and that court could act in personam and compel the defendants to fulfil their fiduciary obligation though such fulfilment had reference to lands situate outside the jurisdiction and therefore, the High Court had jurisdiction to entertain the suit in respect of prayers(a) and (b) in the plaint. As against that Mahajan, J. held that 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 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 the expression" suit for land". B.K. Mukherjea, J. observed that the words "suit for land" mean 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 vigoro to be enforceable against and binding on the land itself. The said two learned Judges, namely, Mahajan and B. K. Mukherjea, JJ. also opined that the proper scope of Clause 12 cannot be determined with reference to the Jurisdiction in personam exercised by Courts of Equity in England in respect of foreign land since the Letters Patent provide separately for Jurisdiction of the courts and for the law to be applied after jurisdiction has been properly assumed. They observed, that the question of application of Equity Law does not arise till jurisdiction is actually conferred in the court under Clauses 11 and 12 of the Charter. They also observed that the suit was a suit for land and the High Court had no Jurisdiction to entertain the suit in respect of prayers (a) and (b) in the plaint, as the lands were situate outside the local limits of its original side jurisdiction. Therefore, all the four judges of the Federal Court, namely Kania C.J., Patanjali, Mahajan and B. K. Mukherjea, JJ. held that if the purpose of the suit is for obtaining a direction for possession or for bringing about a change in title to the land, being the subject matter of the suit or for establishing an interest therein, such a suit would be a suit for land. Kania C. J. and Patanjali Sastri, J. however, felt that the power of court to act in personam is a jurisdiction of court and such jurisdiction can be invoked when the claim is founded on contract or fraud or trust or fiduciary relationship, but Mahajan, J. and B. K. Mukherjea observed that there is a separation in the jurisdiction of courts as vested by Clause 12 and the law to be applied as ordained by Clause 19 of the Letters Patent and when the court has no jurisdiction, question of application of equity law does not at all arise.
17. While discussing the merit of the case before them, the learned Judges of the Federal Court in Moolji Jaitha's case, made the following observations which are relevant for understanding the law prevalent at that time in relation to the present controversy:-
Kania C. J.: (Para 6 of the Report) "It appears that to confine its meaning to a suit to obtain possession of land only is not proper. The object of treating suits for land differently from other suits in the clause, which defines the Jurisdiction of the original side of the High Court, is to respect the generally approved principle that disputes as to title or possession are ordinarily decided where the land is situated. Therefore questions of title to land and not merely to obtain possession of land should be covered by this expression. It seems equally clear that the widest meaning, which will include suits which have any reference to land, should also be rejected. The object cannot be that any question which indirectly or incidentally has any reference to land should be excluded from trial merely because the suit has some reference to land. In the ordinary way therefore a suit for land is one the primary or direct object of which is to obtain possession of, or an adjudication of title to land."
(Para 15 of the Report) "The view of a large majority of Judges thus appears to be that the expression 'suit for land' should not be narrowly confined and limited to suits for the recovery of possession of land or to obtain a declaration of title to land only. The wider meaning of the expression, so as to cover all suits relating to land, i.e. which has anything to do with land, does not appear to be accepted by anyone. That leaves the question wherein between the line of demarcation should be drawn. The courts have differed in the matter of drawing this line under different circumstances, and the same court has taken divergent views on the point. No judicial decision has attempted to give an exhaustive enumeration of the suits covered by the expression 'suit for land' and 1 do not propose to do so. it is sufficient to say that taking the suit as a whole, 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."
(Para 23 of the Report) "In my opinion, the proper construction is to treat the claim in respect of the Jalgaon lands as a claim by a principal against his agent, in respect of property acquired by the use of the respondents' fund by the appellants. The claim is to follow the property in the appellants' hands on the ground that the appellants had committed a breach of trust in utilising the respondents money in obtaining title to the land. It cannot be disputed that the only way in which the appellants could and did come into possession of the respondents money was because the appellants were the agents of the respondents. Therefore, in my opinion in this case the respondents are entitled to ask the court to act in personam and ask the appellants to execute a conveyance in favour of the respondents if they succeed in proving their allegations in their plaint. In the present case the fiduciary relationship is not disputed."
(Para 24 of the Report) "In my opinion, the fact that the respondents have lodged a plaint containing a prayer for a declaration of title does not oust the Jurisdiction of the court to consider whether the lands were acquired by the appellants in breach of the trust and, if so, whether they should not be compelled to transfer the lands to the respondents. The nature of the suit and its purpose have to be determined by reading the plaint as a whole. It is not proper to dissect the prayers and consider whether the court has jurisdiction on the limited point. In the present case, the court has certainly jurisdiction to determine the propriety of the appellants' actions as agents in dealing with the property and money of the respondents. That seems to me to be the main purpose of the suit. It seems to me also that the court is competent to investigate and ascertain if the appellants had utilised the respondents money in the purchase of the immovable property at Jalgaon. If the court holds that the property was purchased by the use of such funds, as claimed by the respondents, having regard to the fact that the respondents are in possession of those properties, the court has Jurisdiction to order the defendants to execute a conveyance of those lands in favour of the respondents."
(Para 25 of the Report) "That leaves the question whether the respondents suit should fail because they had put prayer (a) in the plaint. The inclusion or absence of a prayer is not decisive of the true nature of the suit nor is the orders in which the prayers are arrayed in the plaint. The substance or object of the suit has to be gathered from the aversments made in the plaint and on which the reliefs asked in the prayers are based. A plaintiff may ask for a relief which a court of equity may not grant. But I do not see any justification to non-suit the plaintiff because of such a prayer. That will be insisting on a form of pleading and not on the substance of the suit."
Pazi Ali, J. : (Para 49 of the Report) "It may be difficult to find a comprehensive definition for the expression 'suit for land' so as to cover all possible cases, but there is overwhelming authority for the view that a suit for determination of title to land is prima facie a suit for land. But, since the reliefs to which reference has been made are not the only reliefs claimed in the suit there is a much more Important question involved in the appeal, namely, whether the present suit as a whole is a suit for land and whether the High Court is entirely precluded from giving any relief to the plaintiff in regard to lands at Jalgaon. On this question, I shall refrain from expressing any opinion for the obvious reason that it would be wholly unnecessary to do so, if the appeal is to be dismissed on a preliminary ground."
Patanjali Sastri, J.: (Para 56 of the Report) "What, then, is the true character of the present suit ?"
(Para 57 of the Report) "It is important to note that the company did not seek recovery of possession of the lands as it is their case that the lands have all along remained in their own possession and enjoyment."
(Para 59 of the Report) "The facts alleged in para 8 are that the defendants acquired the lands in question in their own name but on behalf of the plaintiffs with the plaintiffs money in their hands as the managing agents of the plaintiffs. Having alleged these facts the plaint proceeds to describe the legal result of such acquisition by saying that the 'beneficial interest' in the property acquired was in the plaintiffs and not in the defendants who were only 'benamidars or trustees'....................................The fiduciary obligations on which the claim in paras. 8 and 8-A of the plaint are founded are laid down in Ch. X, Sections 82 and 88, and are spoken of as 'Certain obligations in the nature of trusts' and Section 95 provides that the person holding the property in accordance with any of the sections of that Chapter must, so far as may be, perform the same duties, and is subject to the same liabilities and disabilities as if he were a trustee for the person for whose benefit he holds the property. It is in accordance with this conception that a benamidar has been held to be a trustee and could sue for the property in his own name. .......................................... Though this is the true position in law, it is by no means uncommon, as a matter of convenience, to speak of the trustee or benamidar having no 'beneficial interest' in the property held by him and of the beneficiary being the 'real owner' in contradistinction to the formal ownership vested in the trustee or benamidar. It is in this sense apparently that the lands in question were said to 'belong' to the plaintiffs, and the same notion seems to underlie the prayer for a declaration that the lands in suit 'belong to and are the property of the plaintiff company.' That this has reference to 'the beneficial interest' in the lands is made clear by the words which follow, namely, 'and that the defendants have no beneficial interest therein'. Thus the prayer for declaration, based as it is upon the commonly but loosely used terminology, is not in accordance with the true legal result of the facts alleged in paras. 8 and 8A of the plaint, and it is a relief which is not only unnecessary for the object which the plaintiffs have in view but is one which the court would not, strictly, be in a position to grant even it the plaintiffs established their case; for, until the defendants conveyed the legal title, it could not be said that the lands 'belong' to them and 'are their property'. The only relief which the plaintiffs will in law be entitled to on proof of the facts alleged by them is the execution of the necessary instruments formally transferring the lands to the name of the plaintiff company asked for in para 18 (b) and it is also the only necessary and sufficient relief for the plaintiffs to obtain."
(Para 60 of the Report) " I am of opinion that the present suit is not a suit for land within the meaning of Clause 12. The plaintiffs, as has been stated, do not claim possession or control of the lands, being already in possession and enjoyment thereof. Nor do they ask for an adjudication of title to those lands. By their very demand for its transfer they concede that the legal title is vested in the defendants who have purchased the properties and got them entered in the Government records in their own names. All that the plaintiffs seek on this part of their case is the fulfilment of the personal obligation which, it is claimed, the law casts upon the defendants, to hold the properties for the benefit of the plaintiffs and to execute the necessary instruments conveying to them the legal title in those properties, an obligation arising out of the fiduciary relation between the parties and the circumstances relating to the acquisition of the properties as alleged in the plaint. The position is thus analogous to that in a suit for specific performance where the plaintiff conceding the defendant's title claims a conveyance of it in accordance with the contract. And as the defendants reside, and carry on business in Bombay and are thus amenable to the jurisdiction of the High Court, that court can act in personam and compel the defendants to fulfil their fiduciary obligation though such fulfilment has reference to lands situate outside the Jurisdiction."
Mahajan J.: (Para 72 of the Report) "A plain reading of the plaint discloses that the object of the suit so far as Jalgaon lands are concerned is to establish title to them. Prayer (b) is consequential to the declaration asked for in prayer (a), Plaintiffs have based their claim of ownership to the Jalgaon lands on alternative grounds. In the first place, it is alleged that the lands were purchased by the defendants with plaintiffs' money and as their benamidars. In the alternative it is alleged that even if the lands were purchased by the defendants for their own benefit as the purchase was made when they were in the relation of an agent to them, it should be held to be for their benefit. It is not easy to follow the legal basis of the alternative claim, presumably it is founded on some vague notion of the principles underlying Section 88, Trusts Act. So far as I have been able to comprehend this plaint, it contains a number of claims founded on different causes of action and no common relief is claimed or is claimable in respect of them. There is no intimate connection between the claim made in respect of the lands and the claim for rendition of accounts. The claim for damages in Clause (12) arises by virtue of the relationship of purchaser and seller; the claim for Rs. 650 arises on account of rent falsely received after the termination of the agency, the claim for lands arises owing to a benami purchase or owing to a fiduciary obligation owed by the defendants to the plaintiffs, while the claim for specific sums of money and account arises owning to the misconduct of the agent or his failure to discharge his duty or on account of his negligence. A question has also been raised as to the construction of the agency contract in regard to the commission payable to the agent."
(Para 74 of the Report) "The subject matter of a suit would not be land or immobable property on this construction if the question concerning the land only arises incidentally in a suit, the real subject matter of which is not land or immovable property but say the administration of an estate or of a trust or taking accounts of a partnership in which no decree or order is claimed in respect of proprietary or possessory title to land or immovable property."
(Para 102 of the Report) "Finally, I would like to say a word about suits for specific performance regarding which conflicting decisions have been pronounced by the High Courts in India. In my opinion, if the suit is for specific performance and a decree for possession of the land sold is claimed, such a suit would certainly be a suit for land, but if the suit is simpliciter for specific performance, i.e., for the cenforcement of the contract of sale and for execution of a conveyance, in that event there can be no good ground for holding that such a suit is a suit for | determination of title to land or that the decree in it would operate on the land. It is curious that in some cases in Calcutta a distinction has been drawn between a vendor's suit for specific performance and a purchaser's suit for specific performance. The nature of the suit in both contingencies is the same, though in one case the vendor is prepared to offer a deed while in the other case the court has to direct that a deed be executed but the nature of the suit does not change by that circumstance. The suit is not for land because it is a suit for specific performance of a contract, and does not involve any declaration as to title about land. The only question in issue in such a case is whether the contract was made and if so, are there any reasons why it should not be specifically enforced. No controversy as to title to land is directly raised when the court is not called upon to adjudicate on title. Cases therefore which have held that a suit for specific performance simpliciter is a suit for land must be held to have been wrongly decided."
(Para 104 of the Report) "The primary object of an administrative suit is not to obtain any decision from the court in respect to title to any land or immovable property. Its real purpose is to administer the deceased's estate. That is its true nature, irrespective of the fact that the administration may involve assumption of jurisdiction by the administrator on lands outside the court's Jurisdiction. That circumstance cannot convert an administration suit into a suit for land. This case has no bearing on the point. The controversy raised about Jalgaon lands purchased benami or held for the plaintiffs by the defendants as agents is independent ) of the accounting between principal and agent. This is not an item in account. It is a distinct claim that lands were purchased benami for the plaintiffs with their money and they are the owners and even otherwise, these being purchases by an agent, they belong to them. Whatever the result of accounts under other heads of the claim may be, this matter would still remain for adjudication. Suit for accounts may fail or succeed, but this part of the claim has to be decided. It is on the same footing as the claim in para 12 of the plaint. That fact has no connection with the fiduciary relationship. The relationship there was that of seller and purchaser. Similar is the claim for refund of Rs. 6.50 in cl. (c) of para 18. Whether account or no account, this specific item is claimed by the plaintiffs as it was taken by the defendants from the plaintiffs by fraud. Claim for general account in cl. (d) has been particularised in the same paragraph but land claim is not particularized there."
(Para 107 of the Report) "As indicated in the earlier portion of the judgment, this is not a case for a general account by a principal against an agent, where in the course of accounting incidentally a decision has to be reached as to how the land in dispute was acquired and with whose money. The relief in respect of land is not at all involved or raised in the prayer for account............................................................................It has to be observed that the issue of Jurisdiction was raised in respect of prayer (a) and it was open to the plaintiffs in the trial court as well as in the court of appeal to withdraw that prayer and amend the plaint if they so desired instead of fighting out in the two courts below and then suggesting before us that this prayer may be treated as merely a surplusage in the plaint. Taking the plaint therefore as it stands, there can be no manner of doubt that a clear controversy is raised about title to the land situate in Jalgaon, the plaintiffs claiming that the lands are owned by them and they are ostensibly held by the defendants as their benamidars, the purchase having been made with funds supplied by them. The defendants on the other hand contend that the lands were purchased by them with their own money for their own benefit. On these pleadings, the plaintiffs have asked for a declaration to the effect that they be declared to be the owner of these lands. The issues raised in the pleadings very clearly indicate the nature of the controversy, Even a question of adverse possession has been raised about the lands. In this situation it is difficult to hold that this suit in view of the interpretation that 1 have placed on the words 'suit for land' in Clause 12 is not a suit for land. The prayer regarding execution of the deeds is consequestlal to the declaration of title and is not merely a prayer in the nature of a prayer for specific performance or in the nature of an incidental prayer in a general suit for account between a principal and an agent."
(Para 108 of the Report) "It is not possible to say that the question of the title to land is inextricably tied up with the question relating to the defendants' agency. On the other hand, the first eight paragraphs of the palint exclusively deal with the land claim and no mention of it is made in the other paragraphs where the question of misconduct of the agents has been raised or the relief for accounts has been asked for. The plaintiffs clearly asserted title to the lands on the ground of benami purchase by them in the name of the defendants. In the alternative they claim that the title vests in them because they were purchased by the agents in a fiduciary capacity. The whole burden of the first eight paragraph of the plaint and of the reliefs (a) and (b) in para 18 is as to the title to the land independently of any accounting between the parties or of the misconduct of the agents. The controversy as to land can be independently adjudicated upon without any reference to any acts of omission and commission of the agents as such in their fiduciary capacity."
(Para 110 of the Report) "On these observations the prayer clause in para 18 would have only contained one prayer to the effect that the plaintiffs claim a rendition of accounts of the dealings of the defendants as agents as a result of accounting certain consequential reliefs. A prayer as to declaration of title in' respect to certain specific pieces of land would be out of place in such a suit...............................................................In respect of these lands, no cause of action has been based on the contract of agency, the cause of action has been based on the ground that the purchases were made by the defendants as benamidars for the plaintiffs or as agents for them the plaintiffs are not seeking to enforce any contract against the defendants in respect of these lands the learned Advocate General described the suit as one to enforce fiduciary obligations and said that the reliefs claimed are founded on such obligations. This contention is clearly erroneous so far as Clause 12 of the plaint is concerned. Moreover, when the plaintiffs' title to land is denied, the question of fiduciary obligation cannot alter the character of the suit. Further I can see no claim for enforcement of the fiduciary obligation so far as the refund of Rs. 650 is concerned, the claim having been based on the ground of fraud."
B.K. Mukherjea J.: (Para 148 of the Report) "Speaking for myself, I am inclined to take the view that even a purchaser's suit for specific performance, where there is no prayer for possession, should not be regarded as a suit for land according to the definition given by Sir Richard Garth referred to above. It is not a suit to acquire title to any land; the object is to compel the defendant to carry out specifically what he had agreed to do, and no question of title to the property as between the vendor and the purchaser arises in such cases. The property is not touched in execution of the decree and the title of the purchaser is created not by the decree itself but as a result of the conveyance which is executed in terms of the decree. It is moreover not necessary for the plaintiff to pray for recovery of possession in such suits. If there is actually a prayer for possession, to that extent the suit might be regarded as one for land but not the claim for specific performance itself."
(Para 150 of the Report) "It is enough to state at the present moment that irrespective of what the equity courts have done in England, it would be quite legitimate to hold on the meaning that has been given to the words of the Letters Patent by Sir Richard Garth that a suit for specific performance is not a suit for land."
(Para 151 of the Report) "In Nistarint Dasi v. Nundolal Bose, 26 Cal. 591, a suit was commenced by the widow of a deceased testator in the original side of the Calcutta High Court for administration of the estate of her husband. Under the will, she was entitled inter alia to the interest of a part of the estate; but after her husband's death she was induced to execute certain documents, by which she surrendered her rights under the will. In claiming administration, she alleged that these instruments were obtained by fraud. It was further alleged that a decree passed by the Alipore court on the basis of an arbitrator's award was void, her consent to the reference having been obtained by fraudulent means and she also challenged, as invalid, certain leases which the executors purported to create in favour of themselves. As the properties, in respect to which the leases were executed, were situated outside the jurisdiction of the Calcutta High Court and the decree on the award was passed by the Alipore court, a question of Jurisdiction was raised and it was contended that the Calcutta High Court had no jurisdiction to entertain the suit. This objection was overruled and the decision of the High Court was affirmed on appeal by the Privy Council Bilasrai v. Shivnarayan, 33 Cal. 180: (32 I.A. 193 P.C.). 'On the question of Jurisdiction', so runs the judgment of the Judicial Committee:
Their Lordships consider the decision right. The primary object of the suit was the administration of the estate of a deceased person resident within the Jurisdiction, the principal executor being also resident there and the actual administration going on there. The High Court of Calcutta, in its ordinary jurisdiction, had the right to order administration of this estate, and, as ancillary to such an order, to set aside deeds obtained by the fraud of the executor. Nor does the circumstance that a decree had been granted by the court of the 24 Paragunnahs making a fraudulent award an order of court protect that decree from the Jurisdiction of the Calcutta court when redressing that fraud. In like manner, their Lordships consider the Calcutta court entitled, for the due administration of the estate, to set aside leases of land outside the territorial limits of their Jurisdiction, those leases having been made as an incident of the same fraud.' This is a pronouncement of the Judicial Committee in a case where the question of Jurisdiction under Clause 12, Letters Patent, was definitely raised, and the Judicial Committee approved of the interpretation which the Calcutta High Court placed upon these-words in the clause. It is to be noted that there was no prayer for declaration of title or for recovery of possession in the plaint. What the plaintiff prayed for was due administration of the estate of her husband by the executors under the terms of the will of the deceased. What stood in the way of carrying out the directions in the will was a decree passed upon a fraudulent award and certain leases which the executors fraudulently created in favour of themselves. It was held by the Judicial Committee that these ancillary matters did not take away the Jurisdiction of the High Court which was undoubtedly competent to make an order for administration and to grant redress against the travel which the executors were found to have committed. These subsidiary matters were mere parts and indicia of the fraud that was alleged against the executors. When, however, the plaintiff prayed for immediate possession of the immovable property on the construction of a certain will and prayed at the same time that the estate should be administered and accounts rendered by the executors, it was held, and in my opinion, trightly by Harrington J. in Haralall Banerjee v. Netambini Debt, 29 Cal. 315 that the suit was one for land within the meaniong of Clause 12, Letters Patent."
(Para 170 of the Report) "As I have said already, the principles of equity may assist us in determining the essential hature of a particular suit or action. Thus, the remedy by way of specific performance was fashioned by the equity courts for the purpose of giving a more complete relief in the way of enforcing a contract. In its essence, it is a suit to enforce a contract, and its nature is not changed simply because it relates to immovable property. But there is no reason why a suit for foreclosure should be regarded as a personal action, simply because the equity courts in England entertain such suits with regard to foreign lands."
(Para 174 of the Report) "It is quite true that the different causes of action which the plaintiffs have united in one suit are based on different acts of misconduct alleged to have been committed by the defendants during the period that they acted as agents of the plaintiff company; but it would not be correct to say that the suit, in substance, is one for accounts brought by a principal against an ex-agent and that the reliefs claimed in relation to lands are nothing but different items in the rendering of accounts. The whole structure of the plaint makes it perfectly clear that the first three prayers are based on the allegations contained in paras. 1 to 8 (a), whereas Paras 9 to 15 contain the other allegations upon which the prayers for rendering of accounts or for recovery of specific sums of money in the alternative have been made. The first two prayers relate exclusively to the immovable properties which the plaintiffs allege belong to them but which according to the defendants are their property purchased with their own money and which they assert are being held by the plaintiffs as their tenants. There is no question of accounting so far as these claims are concerned, and I am unable to agree with the view taken by Bhagwati J. that these prayers also are including in the claim for accounts and if the court finds, on taking accounts, that the properties where purchased by the defendants with monies belonging to the plaintiffs, it would be a matter of course for the court to order the defendants to transfer these properties to the plaintiffs. This is not the plaintiffs' case as made in the plaint and this certainly not their prayer. We have no right to read the plaint in a manner different from what it purports to be. So far as prayers (a) and (b) are concerned, the plaintiff's case, in essence, is that the defendants purchased these properties in their names but with monies belonging to the plaintiff company and as such are nothing but benamidars or name-lenders. The beneficial interest is vested in the plaintiff company and they have all along been in possession and enjoyment of these lands. As the defendants set up an adverse title and claimed the lands to be their property, a declaration of title has become necessary. This is the gist of prayer (a) in the plaint. The defendants, on the other hand, have in their written statement denied the title of the plaintiffs and asserted that these properties were their own acquisitions and that the possession of the plaintiffs was only in the character of a tenant under them. A question of title to the land, therefore, expressly arose on the pleadings of the parties. As there is a claim of title in regard to the lands in suit and the plaintiffs want a declaration which should be binding on the property, the suit cannot but be one for land according to the tests which have been formulated above. It is argued, however, on behalf of the respondents that a declaration of title is wholly unnecessary in the present case. If the plaintiffs succeed in establishing that the defendants are their benamidars or trustees and hold the land in trust for them, they can pray for an order directing the defendants to transfer the properties to them. I do not dispute as a proposition of law that if without raising any question of title or even admitting that the title is with the defendant, the plaintiff seeks to compel the defendant to excute a conveyance of the property in his favour in fulfilment of a personal obligation imposed on the defendant by reason of certain fiduciary relationship existing between him and the plaintiff, the suit would not be a suit for land according to the definition given above. There is no claim of title to land in such cases and no decree is sought for which would be operative on the property itself. It would be an action to enforce a personal obligation against the defendant and the fact that the obligation has relation to an immovable property is not at all material. The difficulty, however, is that the present plaint has not been framed in that way at all, and even the Advocate-General was not prepared to amend the plaint by deleting the prayer (a) which he himself conceded to be unnecessary. In para 8 of the plaint the plaintiffs set up title in themselves in respect to the disputed. properties and denied title of the defendants, and it is on this footing that the prayers (a) and (b) have been framed. Paragraph 8(a) of the plaint was introduced subsequently with a view to make an alternative case and possibly with an eye to the provision of Section 98(a). Trusts Act. Prayer (b) however stood in its present shape even before the plaint was amended, and it cannot be said that this prayer was necessary because of the new allegations made in para 8 (a). In my opinion, prayer (a) is wholly inappropriate to a suit for enforcing a personal obligation against the defendant and if this prayer is retained, the suit, to that extent, would be a suit for land within the meaning of Clause 12 Letters Patent, and as the properties are outside the jurisdiction of the court, the court would not be competent to try the suit. As, the plaint stands, prayer (b) can only be read as accessory to prayer (a) and if the execution of the documents is necessary only for the purpose of perfecting the plaintiffs title, of which a declaration is sought for in prayer (a), the court must also be held incompetent to try the suit so far as prayer (b) is concerned. It is certainly open to the plaintiffs to make appropriate changes in the body of the plaint so as to make it a suit merely for enforcing a personal obligation and it may be open to them in that event to retain prayer (b) as one of the principal prayers in the suit, but as the respondents do not propose to make any changes in the plaint, I have no other alternative but to hold that the view taken by the trial Judge is right and the decision of the appellate court cannot be maintained."
18. Therefore, all the four Judges, namely Kania CJ., Patanjali Sastri, Mahajan and B. K. Mukerjee, JJ., (Fazl Ali, J. expressing no opinion) held that a suit to enforce a contract without a prayer for possession of land being the subject matter of the contract, is not a suit for land and if the contracting parties are within the Jurisdiction of the court, the court can enforce the decree directing specific performance of the contract, since in such a suit no question will be raised as to title to or possession of the land, but the question that would be raised will be whether the plaintiff is entitled to specific performance of the contract or not. The said learned Judges, however, did not take note of the consequences that may arise in a suit for specific performance of a contract to sell land situate outside the jurisdiction of the court where the contract itself providing for delivery of possession simultaneously with the execution of the conveyance. Therefore, despite such pronouncement by the learned four Judges of the Federal Court, a learned single Judge of this court. In Bimal Kumari v. Asoke Mitra, , dismissed the suit on the preliminary point that the court had no jurisdiction to try the suit, because specific performance of the agreement involved the delivery of possession of land, which land, in that case, was situate outside the jurisdiction of this court. The learned Judge observed, "the two obligations which the vendor is bound to discharge, arise at one and the same time, viz., to execute the conveyance and to deliver possession." This proposition of law enunciated in Sm. Bimal Kumari v. Asoke Mitra (supra) was tested by the Division Bench of this court in Debendra Nath Chowdhury v. Southern Bank Ltd., , where the learned Judges of the Division Bench of this court agreed with the reasonings of the Division Bench of the Madras High Court in Krishnammal v. Sundararaja (supra) to the effect the Order 2, Rule 2 of the Code of Civil Procedure cannot be attracted to the suit for specific performance and that, if necessary, subsequent to the execution of the conveyance, a further suit for possession could be filed on the strength of such title. The Division Bench further held that the cause of action in a suit for specific performance of a contract to execute a document of transfer is not a cause of action for possession of land. Possession only is consequential only and the right to the same arises by virtue of execution of the document of transfer and not before. The Division Bench thereupon concluded :-
"We, therefore, hold that a suit where the plaintiff claims a decree for specific performance only, directing the defendant to execute and register a lease with alternative claim for damages is not a suit for land within the meaning of Clause 12 of the Letters Patent.
In that case, the plaintiff had sought specific performance of an agreement to grant a sub-lease of fireclay lands in Santal Parganas, situate outside the jurisdiction of the court, and had claimed jurisdiction on the ground that the defendant, a limited company, has its registered office and carries on business at 24, Netaji Subhas Road, Calcutta, within the jurisdiction of this court. The specific prayer in the plaint. in that case was for a decree directing the defendant to execute and register the sub-lease and in default directing the Registrar of this court to execute the sub-lease on behalf of the defendant. No other relief except damage was claimed. No possession of the land was claimed. The Division Bench noted that the plaintiff was not in possession of the land being the subject matter of the agreement. The Division Bench also observed :-
"The foundation for this court holding that a suit for specific performance, where the only relief claimed, is a decree for execution of a document of transfer and nothing else is not a suit for land, is first on the principle that it is a suit for enforcing a contract where a court is required to act only in personam secondly, the cause of action for such specific performance is not a cause of action for the recovery of land as such or recovery of possession of land as such and the fact that such will or may be the consequence is immaterial for the purpose, the cause of action for specific performance of a contract and not. the cause of action for a titular or possessory claim for land and thirdly the context of Clause 12 of the Letters Patent in providing three basic tests for suits (i) for land (ii) cause of action and (iii) place of residence or business of the defendant, clearly indicates that where courts are intended to act in equitable jurisdiction in personam it is the second or third test has to be applied. The fact that the decree for specific performance will result in ultimate possession being given or obtained, does not convert it into a suit for land, or in that case the suit for land would not have been grouped as a class of itself apart from the class governed by the test of the cause of action or the test of the place of residence 6r place of business of the defendant in Clause 12 of the Letters Patent."
The Division Bench, therefore, concluded that the suit for specific performance is a suit for enforcing a contract, the preliminary object of which is to obtain a direction upon the defendant to execute and register a document relating to the land and not to recover possession of land and in those circumstances, if the cause of action of such suit arise within the jurisdiction of this court or if the defendant reside or carries on business or works for gain within the jurisdiction of this court, then this court by passing a decree, which is enforceable in personam, can grant the relief to the plaintiff and thereafter, the plaintiff may institute a second suit to recover the possession of land, being the subject matter of the document executed by the defendant in pursuance with the decree passed in the first suit, though the same had not been instituted with leave under Order 2, Rule 2 of the Code of Civil Procedure, 1908.
19. Although, the Division Bench in Debendra Nath Chaudhury v. Southern Bank Ltd. (supra) observed," the cause of action for such specific performance is not a cause of action for the recovery of land as such or recovery of possession of land as such and the fact that such will or may be the consequence is immaterial for the purpose" it did not express any opinion as to what would happen if the contract itself provides for delivery of possession nor did it refer to the statutory right to obtain possession flowing from the contract to sell, which aspect of the matter had been dealt with by an earlier Division Bench of this court in Kartic Chandra Pal v. Dibakar Bhatacharjee, , when it was observed :-
"It is incontestable that in a suit for specific performance of a contract for the sale of land it is open to the plaintiff to Join in the same suit two prayers, one for the execution of the deed of transfer and another for recovery of possession of the land in question .......................
We ought to remember in this connection that no special form of decree in a suit for specific performance is supplied by the Civil procedure Code. Chapter-II, Specific Relief Act, deals with the various circum- stances under which a contract may be enforced specifically and where it cannot be allowed. When a contract is to be specifically enforced, it means simply this that when the parties do not agree to perform the contract mutually the intervention of the court is required and the court will do all such things as, the parties would have been bound to do had this been done without the intervention of the court. A sale of a property after payment of the consideration and upon due execution of the deed of sale pre-supposes and requires the vendor to put the purchaser in possession of the property. It cannot be suggested that when a party conies to court for specific performance of a contract, he is to be satisfied with simply the execution of the document on payment of the consideration money. The court when allowing the prayer for specific performance vests the executing court with all the powers which are required to give full effect to the decree for specific performance. By the decree for specific performance, the court sets out what it finds to be the real contract between the parties and declares that such a contract exists and it is for the executing court to do the rests.
It may be noticed further that a decree in a suit for specific performance has been considered to be somewhat in the nature of preliminary decree which cannot set out in the fullest detail all the deferent steps which are required to be taken to implement the main portion of the order directing specific performance of the contract. The executing court is in such a case vested with authority to issue necessary directions ".
According to that decision of this court in a suit for specific performance, is only required to direct specific performance of the contract. Once such direction is given it vests the executing court not only with the power to direct to execute the document but also to put the purchaser in possession of the land, being the subject matter of the contract, whether a prayer has been made for execution of the document or for delivery of possession of the land in question or not. A similar view was taken by the Allahabad High Court in Balmukand v. Veerchand, , where the decree for specific performance of a contract for sale was silent as to the relief of delivery of possession even though such relief was claimed in the suit and it was held that the executing court was still competent to deliver the possession since, it was observed, in a suit for specific performance it is not necessary to separately claim possession nor it was necessary for the court to pass a decree for possession as a decree for specific performance of the contract includes everything incidental to be done by one party or another to complete the sale transactions, the right and obligation of the party in such a matter being governed by Section 55 of the Transfer of Property Act. Similarly in Janardan Kishor v. Giridharilal , it was held that a relief of possession is inherent in a relief for specific performance of a contract for sale and the court executing a decree for specific performance of such a contract can grant possession of the property to the decree holder even though the decree did not provide for delivery of possession. Similar view was also expressed in Subodh Kumar v. Hiramoni Dasi, , where it was held that right to recover possession springs out of the contract which was being specifically enforced and to as a result of the execution and completion of the conveyance and as such the judgment-debtor was bound to deliver possession to the decreeholder.
20. Therefore, four distinct views emerged, namely, (I) the object of a suit for specific performance is to obtain execution of the document relating to the land (2) after such document is obtained to institute a suit for recovery of possession of land, being the subject matter of the document, (3) in a suit for specific performance, the plaintiff can seek execution of the document pertaining to the land being the subject matter of the contract and also possession thereof, and (4) in a suit for specific performance, the plaintiffs seeks specific performance of the contract and once such a suit is decreed, the executing court is vested with all powers to complete the transaction contemplated in the contract, which includes execution of the document as well as delivery of possession. The Sixth Law Commission took note of the aforementioned for divergent views and observed :-
"It would be simpler to make a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the court to provide in the section itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession."
Thereupon the legislature enacted the Specific Relief Act, 1963, and act to define an amend the law relating to certain kinds of specific relief. In that act the legislature inserted Section 22 which runs as follows:-
"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, 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 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.
(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."
21. There was no such provision in the previous Act, in addition to Section 22. The legislature in the said Act introduced Section 28, which runs as follows :-
"28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed (1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the Justice of the case may require.
(2) Where a contract is rescinded under sub-section (1), the court -
(a) shall direct the purchaser or the lessee if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and
(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the Justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with contract.
(3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1) the court may, an application made in the same suit award the purchaser or lessee such further relief as he may be entitle to, including in appropriate cases all or any of the following reliefs, namely :-
(a) the execution of a proper conveyance or lease by the vendor or lessor:
(b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease.
(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be.
(5) The costs of any proceedings under this section shall be in the discretion of the court."
Prior to the said Act there was no provision similar to sub-sections (3) and (4) of Section 28 of the said Act. However by virtue of order 21 Rule 32(4) of the Code, a decree holder could obtain in execution of the decree, relief similar to that of Sub-section 3(a) of Section 28 of the S. R. Act. 1963.
The effect of these two new provisions was considered by the Supreme Court in Babu Lal v. Hazari Lal Kishori Lal, . On that case the respondents No. 6 to 9, before the Supreme Court, entered into an agreement with the respondents No. 1 to 5 on 30th July, 1967 for sale of certain plots situate behind their shop for Rs. 15,500/-.The respondents No. 1 to 5had paid a sum of Rs. 1,500/- as earnest money pursuant to the agreement. The sale deed was agreed to be executed within 15 days of the agreement . The respondents No. 6 to 9, however, executed a sale deed in favour of the petitioner, Babu Lal, in respect of the same property for Rs. 20,000/- on 7th August, 1967 in defiance of the earlier agreement dated 30th July, 1967. In the circumstances, respondents No. 1 to 5 filed a suit for specific performance of the contract of sale. The petitioner resisted claim on the ground that the sale in his favour was in pursuance of a prior agreement dated 8th July, 1967. The trial court dismissed the suit, but on appeal the Additional District Judge decreed the suit. In second appeal the High Court confirmed the Judgment of the first appellate court with slight modification whereby it directed the petitioner and the respondent No. 6 to 9 to execute the sale deed in favour of the respondents No. 1 to 5 to bring it in line with the decision of the Supreme Court in Lala Durga Prasad v. Lala Dipchand, . The respondents No. 1 to 5 applied for execution of the decree. This application was resisted by the petitioner on the ground, inter alia, that the respondents No. 1 to 5 did not claim relief for possession in the suit and consequentially there was no decree for possession and therefore the application for execution by delivery of possession was liable to be dismissed. The executing court allowed the said objection inasmuch as it directed the execution of the sale deed in pursuance of the decree, but refused to grant the relief of possession with the observation that the remedy of the decree holders for possession was by means of separate suit and not be the execution proceedings. The order of the executing court was confirmed in appeal. This order gave rise to two appeals, one by the petitioner and the other by the respondents No. 1 to 5. The appeal of the petitioner was dismissed while the appeal of the respondents No. 1 to 5 was allowed by the Allahabad High Court when if modified the orders of the courts below to the effect that the decree-holder shall be entitled to possession also. Against that order of the Allahabad High Court, the petitioner went before the Supreme Court. The only contention that had been raised before the Supreme Court on behalf of the petitioner was that the High Court could not grant relief in execution application in excess of and outside the framework of the prayer made by the respondents No. 1 to 5 in the original main suit. It was urged that the High Court had acted in violation of the provisions of Section 22 of the Specific Relief Act in granting the relief of possession. The Supreme Court dealt with the said question in the manner as follows:-
"Section 22 enacts a rule of pleading. The legislature thought it will be useful to introduce a rule that in order to avoid multiplicity of proceedings the plaintiff may claim a decree for possession in a suit for specific performance., even though strictly speaking, the right to possession accrues only when suit for specific performance is decreed, The legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession.
The section enacts that a person in a suit for specific performance of a contract for the transfer of immovable property, may ask for appropriate reliefs, namely he may ask for possession, or for partition or for separate possession including the relief for specific performance. These reliefs he can claim, notwithstanding anything contained in the Code of Civil Procedure, 1908, to contrary. Sub-section (2) of this section, however, specifically provides that these reliefs cannot be granted by the court, unless they have been expressly claimed by the plaintiff in the suit. Sub-section (2) of the section recognised in clear terms the well-established rule of procedure that the court should not entertain a claim of the plaintiff unless it has been specifically pleaded by the plaintiff and proved by him to be legally entitled to. The proviso to this sub-section (2), however, says that where the plaintiff has not specifically claimed these reliefs in his plaint, in the initial stages of the suit, the court shall permit the plaintiff at any stage of the proceedings, to include one or more of the reliefs, mentioned above by means of an amendment of the plaint on such terms as it may deem proper. The only purpose of this newly enacted provision is to avoid multiplicity of suits and that the plaintiff may get appropriate relief without being hampered by procedural complications.
The expression in sub-section (1) of Section 22 'in an appropriate case' is very significant. The plaintiff may ask for the relief of possession or partition or separate possession 'in an appropriate case' ........................... a case may be visualised where after the contract between the plaintiff and the defendant the property passed in possession of a third person. A mere relief for specific performance of the contract of sale may not entitle the plaintiff to obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed for such a person is not bound by the contract sought to be enforced. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpliciter, without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he is bound not only to execute the sale deed but also to put the property in possession of the decree-holder. This is inconsonance with the provisions of Section 55(1) of the T. P. Act which provides that the seller is bound to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature admits.
In the instant case, it is pointed out on behalf of the petitioner that the possession was not with the respondents Nos. 6 to 9 but was with a third person, namely, the petitioner, was subsequent purchaser and, therefore, this was an appropriate cases where the relief for possession should have been claimed by the plaintiffs-respondents Nos. 1 to 5.
It may be pointed out that the Additional Civil Judge had decreed the suit for specific performance of the contract. The High Court modified the decree to the extent that the sale deed was to be executed by the respondents Nos. 6 to 9 together with the petitioner. In short, the decree was passed by the High Court not only against respondents Nos. 6 to 9 but also against the subsequent purchaser i.e., the petitioner and thus the petitioner was himself the judgment-debtor and it cannot be said that he was a third person in possession and, therefore, relief for possession must be claimed. The contention on behalf of the petitioner is that the relief for possession must be claimed in a suit for specific performance of a contract in all cases. This argument ignores the significance of the words 'in an appropriate case'. The expression only indicates that it is not always incumbent on the plaintiff to claim possession or partition or separate possession in a suit for specific performance of a contract for the transfer of the immovable property. That has to be done where the circumstances demanding the relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession over the property conveyed under the sale deed. 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 the contract of sale. Besides, the proviso to sub-section (2) of Section 22 provides for amendment of the plaint on such terms as may be just for including a claim for such relief 'at any stage of the proceedings'.
The word 'proceeding' is not defined in the Act. Shorter Oxford Dictionary defines it as 'carrying on of an action at law, a legal action or process; any act done by authority of a court of law; any step taken in a cause by either party'. The term 'proceeding' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word 'proceeding' in Section 22 includes execution proceedings also.
The execution court has every jurisdiction to allow the amendment. The only difficulty is that instead of granting a relief of possession the High Court should have allowed an amendment in the plaint. The mere omission of the High Court to allow an amendment in the plaint is not so fatal as to deprive the decree holders of the benefits of the decree when Section 55 of the T. P. Act authorises the transferee to get possession in pursuance of a sale deed."
22. The Supreme Court in Babu Lal v. Hazari Lal Kishori Lal (supra) while taking note of Section 28 of the Specific Relief Act, observed:-
"Sub-section (3) of Section 28 clearly contemplates that if the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree, the court may on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to. sub-cl.(b) of sub-section (3) of Section 28 contemplates the delivery of possession or partition and separate possession of property on the execution of such conveyance or lease. Sub-section (4) of Section 28 bars the filing of a separate suit for any relief which may be claimed under this section.
The reasoning given by this court (in Hungerford Investment Trust Ltd. v. Haridas Mundhra, ) with regard to the applicability of Sub-section (1) of Section 28 will equally apply to the applicability of sub-section (3) of Section 28."
23. In Babu Lal v. M/s. Hazaii Lal Klshori Lal (supra), therefore, the Supreme Court has concluded that (1) strictly, the right to possession accrues only when suit for specific performance is decree; (2) the legislature has now made a statutory provision enabling the plaintiff to ask for possession in the suit for specific performance and empowering the court to provide in the decree itself that upon payment by the plaintiff of the consideration money within the given time, the defendant should execute the deed and put the plaintiff in possession; (3) Section 22 of the Specific Relief Act, 1963 enacts a rule of pleading and sub-section (2) of that section specifically provides that the relief for possession cannot be granted by the court unless they have been expressly claimed by the plaintiff in the suit, (4) the purpose of enacting this new provision is to avoid multiplicity of suits and to enable the plaintiff to obtain appropriate relief without being hampered by procedural complications; (5) the expression in subsection (1) of Section 22 "in an appropriate case" is very significant and if the property is in possession of the third person, a mere relief for specific ] performance of the contract of sale may not entitle the plaintiff to obtain possession as against the party in actual possession of the property and as such as against him, a decree for possession must be specifically claimed for such a person is not bound by the contract sought to be enforced but however in a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale simpllciter, without specifically providing for delivery of possession, may give complete relief to the decree-holder since in order to satisfy the decree the judgment-debtor is bound not only to execute the sale deed but also to put the property in possession of the decree-holder since relief for specific performance of the contract of sale embraced within its ambit not only the execution of the sale deed but also possession of the property conveyed under the sale deed; (6) the relief for possession is inherent in the relief for specific performance of the contract of sale and this is so not only for the covenant contained in the contract to that extent but also by reason of the statutory right conferred by Section 55 of the Transfer of Property Act (7) the expression "proceeding" referred to in Section 22 includes execution proceedings and (8) the execution court has every jurisdiction to allow the amendment of the plaint to confer a relief for possession after the suit for specific performance has been decreed in order to give complete relief to the successful plaintiff but not allowing an amendment by the executing court while directing giving of possession is not so fatal to deprive the decree-holder of the benefit of the decree when Section 55 of the Transfer of Property Act authorises the transferee to get possession in pursuance of the sale deed.
24. Following the judgment of the Supreme Court in Babu Lal V. Hazari Lal Ktshori Lal (supra) a Division Bench of this court in Debabrata Tarafer v. Biraj Mohan Bardhan, . held that where the court allowed the plaintiffs prayer for specific performance of the contract which Itself incorporates a clause for delivery of possession and the decree contained a direction upon the judgment-debtor to sell the suit property to the plaintiff in terms of the agreement, it would necessarily be taken to embody a mandate to fulfil all the terms including the term for delivery of possession and that, the fact that the decree was silent with regard to prayer for possession would be immaterial and in such a case the principal that a prayer made in the plaint not being allowed, must be deemed to have been refused, would not apply. In that case the plaintiff had sought in the plaint a relief for possession in addition to relief for specific performance of the contract, the court while directing the suit granted relief of specific performance but not the relied for possession at the execution stage, when the plaintiff sought for possession on the basis of such decree, it was contended on behalf of the Judgment- debtor that the relief for possession having been denied by the court, question of executing the decree for possession does not arise. The Division Bench observed :
"Mr. Dasgupta's contention over-looks the qualifying words used by the legislature in sub-section (1) of Section 22 when the legislature speaks of such a prayer being made 'in an appropriate case' and 'in addition to such performance.' Where delivery of possession is one of the terms of the contract either expressly set out as such in the contract itself or by necessary implication of law as under the provision of Section 55 of the Transfer of Property Act, a prayer for specific performance of such a contract necessarily in corporates a prayer for delivery of possession by the vendor after execution and registration of the deed. Therefore, there is no reason to think that a purchaser who seeks performance of a contract including a term therein providing for delivery of possession is not claiming such a relief in the suit only because he has not made an independent prayer for possession."
25. The Division Bench, therefore, held that when the plaintiff prays for specific performance of a contract for sale, where delivery of possession is one of the terms of the contract either expressly set out or by necessary implication of law as under the provisions of Section 55 of the Transfer of Property Act, a prayer for specific performance of such a contract incorporates a prayer for delivery of possession by the vendor after execution and registration of the deed. The effect of the judgment of the Supreme Court in Babu Lal v. Hazart Lal Klshorl Lal (supra) was considered by special bench of this court in Smt. Dhiralj Bala Keria v. Jethia Estate Pvt. Ltd., . In that case the plaintiff instituted a suit in the City Civil Court at Calcutta for a decree of permanent injunction restraining the defendant from letting out to any person other than the plaintiff the ground and the first floor of premises No. 21 Rupchand Roy Street. The plaintiff, averred that there had been an agreement between the plaintiff and the defendant for letting out the said premises to the plaintiff for 21 years with option for renewal for another 21 years, on certain terms and conditions. Subsequently on an application made by the plaintiff, the plaint in the said suit had been amended whereby a prayer was inserted seeking direction upon the defendant to execute lease in respect of the said premises in favour of the plaintiff and to do acts for registration thereof and to put the plaintiff in full possession of the property. The defendant who denied the agreement made an application under Sections 10 and 11 of the West Bengal Court Fees Act, 1970 for determination of the correct valuation of suit after investigation. It was contended by the defendant that the prayer for a decree for delivery of possession in addition to a decree for specific performance obliged the plaintiff to pay ad velorem court fees according to the market value of the subject matter of the suit and since the market value of the subject matter of the suit is in excess of the pecuniary jurisdiction of the City Civil Court at Calcutta, the Plaint should be rejected or returned. The special bench negatived this contention of the defendant by providing that the ratio of the decision in Babu Lal's case (supra) is that Section 22 of he Specific Relief Act, 1963 has not brought about any material change in the substantive law relating to grant of possessory relief in a suit for specific performance of an agreement to transfer immovable property and that the section only enacts a rule of pleading with the object of avoiding multiplicity of proceedings and also to enable the plaintiff to obtain appropriate relief without being hampered by procedural complications and thus the procedure has been simplified to enable the plaintiff in a suit for specific performance to either initially or at any subsequent stage of the proceedings to pray for possession or for other reliefs in clauses (a) and (b) of sub-section (1) of Section 22 of the Specific Relief Act, 1963. The special bench then observed:-
" Till the execution and registration of the conveyance, the vandee does not acquire title, but he is granted reliefs under Section 22(1)(a) of the Specific Relief Act. 1963 by enforcing the vendor's agreement to sell or to grant lease to him. In other words, at the stage, when he was not yet acquired title, the vendee's claim for possession etc. is derived from and upon the agreement which is specifically enforced. Thus, possessory reliefs mentioned in prayer (a) of sub-section (1) of Section 22 of the Specific Relief Act are dependent upon and flows from passing of a decree for specific performance of an agreement to transfer an immovable property. Even before the enactment of the said Section 22(1), it was almost settled by judicial decisions that the court could grant such possessory reliefs in favour of a successful plaintiff in a suit for specific performance. The legislature by enacting Section 22 of the Specific Relief Act, 1963 has given statutory recognition to the said power of the court to grant delivery of possession and has also prescribed the procedure of obtaining such relief. Therefore, in our view, relief for possession in favour of the successful plaintiff in a suit for specific performance cannot be considered as a separate and distinct one. The same is only an ancillary or consequential one.
26. The special bench, therefore, concluded that the claim for possession is part to the claim for specific performance and by inserting Section 22, this has been recognised by the legislature. In other words, when a plaintiff seeks specific performance of the Contract for sale of immovable properly he claims every thing which has been provided in the agreement including delivery of possession.
27. The Division Bench of this court in T. B. K. S. Maharaj v. Mayapore Sree Chaitanya Math, , considered the meaning of the word "suit for land" in Clause 12 of the Letters Patent. While doing so the Division Bench considering the judgment of the federal court in Moolji Jaltha's case(supra) and also the judgment of the special bench of this court in Probindra Mohan Tagore v. State of Bihar , and thereupon concluded :-
"In our opinion, the question whether, out of several reliefs in the plaint, the claim for the grant of a particular relief which does not relate to title to, or possession, control or management of land or buildings or other immovable property, is the primary object of the suit or not, has to decided by applying the test whether such relief claimed to be the primary object of the suit can be granted to the plaintiffs without the necessity of any adjudication on the question of title to any land or buildings or other immovable property, or possession, control or management thereof. If the relief stands the test, the suit will not be a suit for land or other immovable property within the meaning of Clause 12 of the Letter Patent, although the grant of such relief may in indirectly affect land or other immovable property. If, however, by applying the rest it is found that such relief cannot be granted without deciding the question of title to, or possession, control or management of land or other immovable property, the claim for the grant of such relief cannot be the primary object of the suit and, in that case, the suit will be a suit for land or other immovable property within the meaning of Clause 12 of the Letters Patent."
28. The Division Bench, therefore, concluded that if relief claimed to be the primary object of the suit cannot be granted without deciding the question of possession of land, the suit will be a suit for land within the meaning of Clause 12 of the Letters Patent.
29. By inserting sub-section (4) of Section 28 of the Specific Relief Act, 1963, the legislature has now barred a second suit for possession, although strictly speaking right to possession accrues, as has been held by the Supreme Court, only after obtaining execution of the appropriate document; and at the same time by inserting Section 22 of the Specific Relief Act, 1963 the legislature has made it obligatory on the part of the plaintiff seeking specific performance to ask for in appropriate case possession of the land in addition to specific performance, but while making it so obligatory on the plaintiff to ask for a relief of possession, the legislature has granted liberty to the plaintiff to ask for the same at any stage of the proceedings, which includes execution proceedings.
30. I am, therefore, of the view that by inserting Section 22 and subsection (3) & (4) of Section 28 of the Specific Relief Act, 1963, the legislature has brought about a drastic change in the nature and character of the suit for specific performance of an agreement to sell tangible immovable property. While inserting Section 22 of the said Act, the legislature was aware that a suit for delivery or recovery of possession of a tangible immovable property should be filed in the court where such immovable property is situate since a decree directing recovery or delivery of such property runs with the immovable property, in respect whereof such decree has been passed. At the same time the legislature was aware that right to obtain possession or delivery of a tangible immovable property, in respect whereof a contract has been entered by the parties for sale, springs from the contract itself, if the contract contains a term to that effect; and if not, in the absence of a contract to the contrary, by reason of the statutory right conferred by Section 55(1) of the Transfer of Property Act, 1882. The legislature was also aware that though relief of specific performance of a contract for sale of a tangible immovable property is discretionary but while exercising such discretion, the court can enforce the terms settled between the parties, being the agreement for sale as provided in Section 54 of the Transfer of Property Act, and not some of such terms, nor any term which has not been settled between the parties. With such knowledge the legislature has used the words "in an appropriate case" in sub-section (1) of Section 22 of the Specific Relief Act, 1963 and the words "in addition to such performance" in Clause (a) thereunder, which means that right to claim possession is an additional right, which can be claimed in an appropriate case. In Babu Lal's case (supra) the Supreme Court has not said "appropriate case" would be such a case where without the relief of possession being granted, the performance of the contract will remain incomplete and at the same time said that right to possession springs out from the contract itself if the contract specifically provides a term that the seller would put the purchaser in possession and if not in the absence of a contract to the contrary, such possession can be obtained by the statutory mandate contained in Section 55(1) of the Transfer of Property Act. The Supreme Court in Babu Lal's case (supra) in fact said that "appropriate case" would be a case where the tangible property is not in possession of the contracting party but is in possession of someone else who is not bound by the contract. This aspect of the matter has been explained by the Division Bench of this court in Debabrata Tarafder's case (supra) as well as by the special bench of this court in Sm. Dhiraj Bala Karia's case (supra) the Section 22 of the Specific Relief Act, 1963, however, does not make it obligatory on the part of the plaintiff to ask for possession and on the contrary given an option to the plaintiff to ask for the same. If however no such relief of possession is asked of the court cannot grant relied of possession. However, the court even at the execution stage has been authorised to allow amendment of the plaintiff incorporating therein a prayer for possession and thereupon to pass an order to that effect. If however the possession is with the contracting party or in possession of a party, though not a contracting party, but against whom a decree has been passed directing execution of the deed of transfer, then even in the absence of a prayer of possession or refusing to allow a prayer for possession after having had allowed the relief of specific performance would not debar the executing court to order directing possession at the same time by sub-section (4) of Section 28, although strictly speaking, as held by the Supreme Court in Babu Lal's case (supra), the right to possession accrues only on execution of the deed of transfer, it has been provided that no separate suit shall lie for delivery of possession at the instance of the purchaser or lessee since the purchaser or lessee by virtue of sub-section (3) of Section 28 of the said Act has been authorised to seek delivery of possession from the court which has decreed the suit for specific performance. Therefore, by inserting Section 28, in the form It has been inserted in the Specific Relief Act, 1963 the legislature has devised a complete code for obtaining relief relating to specific performance of a contract for sale of a tangible immovable property. In that view of the matter, when specific performance is sought for sale of a tangible immovable property by reason of Section 28(3), the purchaser seeks specific performance of the contract, execution of a proper conveyance, and delivery of possession, all the three things together and a decree for specific performance of such a contract inheres in itself a direction to execute a proper conveyance with a direction to deliver possession. Therefore, by the 1963 Act, the legislature brought in a drastic change in the law relating to the nature and character of a suit for specific performance and therefore, it is now not open to contend that while decreeing a suit for specific performance for sale of a tangible immovable property, court passes a decree in personam, compelling the obliger to oblige by executing a transfer deed and right to claim possession springs from the deed of transfer so executed and therefore to obtain possession a second suit can be filed, even though the first suit, in which decree for specific performance was granted, was instituted without leave under Order 2, Rule 2 of the Code of Civil Procedure, 1908. In my opinion, therefore, by reason of incorporation of Section 22 and Section 28 in the Specific Relief Act, 1963, unless the purchaser is in possession of the land in question, the object of obtaining a decree for specific performance includes the object of obtaining a direction for delivery of possession and it is well-settled that a suit for possession or for delivery of possession is a suit for land since the decree directing possession or delivery of possession runs with the land. If the purchaser is not in possession of the land in question, he Is entitled to possession on the basis of the terms contained in the contract and if not then by virtue of Section 55(1) of the Transfer of Property Act, in the absence of a contract to the contrary. In this case, the contract itself obliges the vendors to give vacant possession to the purchaser. Therefore, there is no doubt that the present suit is a suit for land situate wholly outside the Jurisdiction of this court and thus this court had and has no competence to receive the suit. The prayer directing the defendant to renew the bank guarantee or executing a fresh bank guarantee is also based on the right flowing from the contract, specific performance whereof has been claimed in the suit. Thus the said relief has no independent basis. Unless specific performance of the contract is directed the question of giving a direction for renewal or for fresh execution of the bank guarantee as sought for will not, nor can at all arise.
31. If the vendor and the purchaser are not in possession of the land in question, but then in the absence of a contract to the contrary, the seller by reason of Section 55(1)(f) of the Transfer of Property Act, 1882 is statutory obliged to give, on being so required by the buyer, or such person as he directs, such possession of the property, as its nature admits and thus, if the possession is with tenants, the vendor is obliged to give possession by issuing letters of attornment and such a suit would also be a suit for land inasmuch as without obtaining such letter of attornment, the right to possession will not crystallized and to obtain such letter of attornment, the purchaser will have to approached the court which decreed the suit for specific performance and no other court. If the property is in possession of persons without any right to possess, a purchaser is required to claim possession from them in the suit for specific performance in addition to his claim for specific performance since right to such possession will accrued on transfer of the property on execution and registration of the sale deed interms of Section 54 of the Transfer of Property Act and no separate suit for such delivery of possession can be instituted by the purchaser in his capacity as such purchase.
32. In that view of the matter, the application of the defendants is allowed. Let the plaint filed in the instant suit be returned to the plaintiff for being presented in the appropriate court within whose jurisdiction the tangible immovable property, being the subject matter of the contract, is situate. The Registrar, Original Side, is directed to return the plaint filed in the instant suit to the plaintiff or to its Advocate-on-Record within seven days from the date hereof on a signed copy of the operative portion of this order, until then the interim order, passed in the suit shall continue.
33. Let the Registrar, Original Side and all parties act on a signed copy of the operative portion of this order upon usual undertaking and let a signed xerox copy of this dictated order be made available to the parties on their usual undertaking.
Stay of the order prayed for is refused.