Madras High Court
S. Sampoornam vs P.V. Kuppuswamy on 11 April, 2007
Author: Prabha Sridevan
Bench: Prabha Sridevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.4.2007 C O R A M The Honourable Mrs. Justice PRABHA SRIDEVAN Second Appeal Nos.1271 & 1272 of 2007 1. S. Sampoornam 2. A. Srinivasan .. Appellants Versus 1. P.V. Kuppuswamy 2. Suseela 3. Mathiazhagan 4. Mohan @ Stalin 5. S. Gowri 6. S. Shanthi 7. S. Baskaran 8. P.A. Rajagopal 9. Premavathiammal .. Respondents - - - - - PRAYER : Appeals against the judgment and decree dated 18.4.2005 made in A.S. Nos.397 and 444 of 2004 on the file of the Additional District Judge (Fast Track Court-V), Chennai, confirming the judgment and decree dated 26.8.2004 and 19.7.2004 respectively made in E.A. Nos.225 and 2202 of 2002 in E.P. No.2202 of 2000 in O.S. No.3393 of 1985 on the file of the X Assistant Judge, City Civil Court, Chennai. - - - - - For Appellant : Mr. AR.L. Sundaresan, Senior Counsel for Mr. G.P. Kothandaraman For Respondent-1 : Mr. D. Krishnakumar - - - - - J U D G M E N T
The respondents are still waiting to realise the fruits of a decree for specific performance obtained in the year 1988.
2. O.S. No.3393 of 1985 was filed by the first respondent herein for specific performance of the sale deed dated 1.12.1982 against one Suseela. On 8.12.1988, the suit was decreed in favour of the first respondent. The first respondent filed E.P. No.2950 of 1989 for execution of the sale deed. In the year 1990, the Court executed the sale deed in favour of the first respondent. On 14.12.1992, the judgment debtors in O.S. No.3393 of 1985, namely Suseela and others, executed a sale deed in respect of the same property in favour of one Rajapandian. The said Rajapandian filed O.S. No.1560 of 1993 for permanent injunction against the first respondent. The suit was decreed on 26.9.1995. Against that, the first respondent filed A.S. No.233 of 1995. The appeal was allowed on 22.1.1996, wherein it was held that the first respondent had validly obtained a decree in respect of the suit property and that Rajapandian cannot be said to be a bona fide purchaser for value without notice, since the sale in his favour is hit by the doctrine of lis pendens. This decree in A.S. No.233 of 1995 has become final. In the mean time, E.A. No.2100 of 1995 was filed by the first respondent in E.P. No.2950 of 1989 for rectification of the street name in the decree. Though in the plaint the street in which the property was situated is referred to as Subbaraya Mudali Street and the decree was in accordance with the plaint, in the sale deed that was executed on 20.9.1990, there was a mistake and the street was mentioned as Subramania Mudali Street. Therefore, the name of the street was sought to be rectified by filing this E.A. In the year 1996, Rajapandian filed E.A. No.6750 of 1996 to implead himself in the E.P. In the year 1998, Rajapandian executed a sale deed in respect of the same property in favour of one K.R Ramasamy and Kasturiammal. On 9.4.1999, the impleading petition filed by Rajapandian in E.A. No.6750 of 1996 was dismissed. On 18.8.2000, E.A. No.2100 of 1995 was ordered. On 13.12.2000, Ramasamy and Kasturiammal executed a sale deed in favour of the present appellants. On 21.12.2001, the first respondent filed E.A. No.225 of 2002 for removal of obstruction. The appellants herein filed E.A. No.2202 of 2002 under Section 47 of the Code of Civil Procedure. E.A. No.225 of 2002 for removal of obstruction was ordered and E.A. No.2202 of 2002 filed under Section 47, C.P.C. was dismissed. The obstructor filed A.S. No.444 of 2004 and A.S. No.397 of 2007 against the above orders. Pending these appeals, the first respondent filed C.M.P. No.10 of 2005 for receiving the copy of the judgment in A.S. No.233 of 2005 as additional evidence. This was marked as Ex.R.1 and it was opposed by the obstructor. On 18.4.2005, both the appeals were dismissed and thereafter, the two present second appeals have been filed.
3. The second appeals have been admitted on the following substantial questions of law :
"(1) Is the lower appellate court correct in receiving the additional evidence in the appeal which has been marked as Ex.R-1 without giving an opportunity to the appellant to rebut the evidence and if so, whether Order 41, Rules 27 to 29 of the Code of Civil Procedure will not directly hit the findings of the lower appellate court?
(2) Whether the lower appellate court was correct in allowing the application to receive the additional evidence and dismissing the application to reopen the case when both the applications are filed after the appeal was heard and judgment was reserved?
(3) Whether the rectification deed executed after 10 years is not barred by law of limitation?
(4) Whether the order for rectification without notice to the appellants' vendor is a nullity since it violates the principles of natural justice?
(5) Whether the lower appellate court has not erred in law in dismissing the appeal holding that the wrong description of property in the sale deed is not material since the decree in the suit contains the correct schedule?
(6) Is the lower appellate court right in dismissing the appeal after giving a finding that the description of the property in the execution petition and the decree did not tally?"
4. Learned senior counsel appearing for the appellants submitted that the appellants would rest their case on pure questions of law and raised an additional question of law at the time of making his submission, namely -
"When the first respondent had prayed for the reliefs of specific performance and possession and the suit was decreed only for execution of the sale deed, whether it will not amount to rejection of the relief of possession, and in which case can the executing court go beyond the decree and grant recovery of possession?
5. The learned senior counsel submitted that the rectification application was ordered on the ground that there are no discrepancies in the four boundaries to the suit property and that it was not the case of the owner of the property, against whom the first respondent filed the suit for specific performance, that she had another property in Subramania Mudali Street. The learned senior counsel submitted that actually there were some differences in the four boundaries. In any event, the rectification application could not have been ordered so as to nullify all the transactions that had taken place in respect of the property between the date on which the E.P. was filed till the date on which the rectification was ordered.
6. Learned senior counsel referred to A.I.R. 1998 S.C. 1827 [Shreenath vs. Rajesh], wherein the Supreme Court upheld the right of third party-in-possession to resist a decree for recovery of immovable property before he is dispossessed and submitted that it is not just the equity in favour of the first respondent that must be weighed in the scales, but also the equity in favour of an innocent purchaser for value without notice of what had transpired.
7. Learned senior counsel thereafter submitted that the reception of Ex.R.1 pending appeal was contrary to the provisions of Order 41, Rule 27, C.P.C. and the settled law in this regard. Learned senior counsel finally submitted that the court below had erroneously distinguished the application of A.I.R. 2001 S.C. 3712 [Adcon Electronics Pvt. Ltd. vs. Daulat], where the Supreme Court clearly held that, "no court can grant the relief of possession of land or other immovable property, subject matter of the agreement for sale, in regard to which specific performance is claimed unless the possession of the immovable property is specifically prayed for". Learned senior counsel submitted that in this case, possession was asked for in the plaint, but not granted by the court and so, A.I.R. 1982 S.C. 818 [Babu Lal vs. M/s. Hazari Lal Kishori Lal] cannot be relied on, since that was a case where the relief of possession was not asked for and in execution when it was asked for, the Supreme Court held that even at that stage, the plaint could be amended. Learned senior counsel also submitted that the courts below failed to see the subtle difference in the present case, the relief was asked for, but not granted. The following decisions were also relied on :
A.I.R. 1976 S.C. 2403 [City Improvement Trust, Bangalore vs. H. Narayannaiah] A.I.R. 1979 Patna 88 [Rukmini Devi vs. Pawan Kumar] (1996) 3 S.C.C. 154 [Babulal vs. Raj Kumar] 1997 (2) C.T.C. 313 [Ignasiammal vs. Mrs. Fathima Beevi] 2003 (2) M.L.J. 561 [Emaresan vs. Radha]
8. Learned counsel appearing for the first respondent raised an objection that the appellants cannot be permitted to raise the additional substantial question of law at this stage when it is not even raised as a question of law, but without prejudice to the same, made his submissions.
9. Learned counsel for the first respondent submitted that it does not make a difference that in the present case, the relief of possession was asked for, but not granted, since the law laid down by the Supreme Court in A.I.R. 1982 S.C. 818 is very clear, namely when the court allows the prayer for specific performance, it "vests the executing court with all the powers which are required to give full effect to the decree for specific performance" and therefore, what the court does is, it "declares that such a contract exists, and it is for the executing court to do the rest". Learned counsel, therefore, submitted that in the present case, even though the decree did not specify that the relief of recovery of possession was granted, once the court declares that a valid contract exists and that it must be specifically performed, what is tacitly understood is that the relief of possession must follow, and the executing court shall do everything to make the decree granted by the court complete. Learned counsel thereafter submitted that the discrepancies in the boundaries which are pointed out by the other side are not really material. The northern, eastern and western boundaries are identical and it is only with regard to the southern boundary that there is a slight discrepancy, but this hardly matters since the southern boundary is the street namely Subbaraya Mudali Street. Learned counsel further submitted that both the courts below have discussed this aspect in great detail and have come to the conclusion that there was no doubt in the mind of the person who conveyed the property to the first respondent regarding the identity of the property and therefore, the mistake committed by the court in drafting by naming the street as Subbaraya Mudali Street instead of Subramania Mudali Street should not result in injustice to the decree holder. Learned counsel also submitted that all these issues were raised by Rajapandian, the predecessor-in-title of the appellants and each of these questions had been answered in favour of the first respondent in the judgment and decree dated 22.1.1996 in A.S. No.233 of 1995. Learned counsel further submitted that the decisions relied on by the other side with regard to reception of additional evidence may not really apply to the present case since what was received by the appellate court was a judgment and it cannot be said that it is not a judgment inter-partes because that is a judgment between the first respondent and the predecessor-in-title of the appellants. Therefore, the findings against the predecessor-in-title of the appellants would also bind the appellants. The complaint that no opportunity was given to the appellants to place any rebuttal material against this evidence would not apply to the present case since what was marked was only the copy of a judgment. Learned counsel for the first respondent also stated that the objection regarding rectification also deserves to be rejected since it is well settled that no party shall suffer because of the mistake committed by the court in mentioning the boundaries to the property. Learned counsel also submitted that the question of equity is not in favour of the appellants. Rajapandian attempted to get himself impleaded in the execution petition and he, therefore, knew that there was a decree for specific performance against his vendor and inspite of that, he had executed a sale deed in favour of Ramasamy and Kasturiammal, the vendors of the appellants. When that is so and when Rajapandian cannot claim any equity against the first respondent herein, his successors-in-title cannot claim any such right, and if this court were to hold in their favour, then the decree holder in a suit for specific performance may be denied his right to reap the fruits of the decree by successive alienations who claim that they are all bona fide purchasers for value.
10. Now we will deal with the objections raised on behalf of the appellants one by one.
11. Reception of additional evidence :
As rightly contended on behalf of the first respondent, what was received by the court under Order 41, Rule 27, C.P.C. was the judgment that was passed in A.S. No.233 of 1995, which was filed by the first respondent herein against Rajapandian, the predecessor-in-title of the appellants. In A.I.R. 1976 S.C. 2403 [City Improvement Trust, Bangalore vs. H. Narayannaiah], it was held that judgments interpartes relating to land acquired are not admissible merely because the land dealt with in the judgment was situated near the land for which the value is to be determined, since the existence of a judgment would not prove the value of some piece of land not dealt with in the judgment admitted in evidence. In 1997 (2) C.T.C. 313 [Ignasiammal vs. Mrs. Fathima Beevi], the document that was admitted at the time of appeal was a sale deed. In 2003 (2) M.L.J. 561 [Emaresan vs. Radha], the documents that were sought to be marked at the time of appeal were sale deeds and a deed of mortgage which had been referred to in the pleadings, but not produced before the trial court. These judgments will not apply to the case on hand. In the present case, the judgment that is relied on is actually interpartes in the sense that it is between the first respondent and the predecessor-in-title of the appellants, namely Rajapandian. The matter was hotly contested at the trial stage. Rajapandian succeeded before the trial court and in appeal, the finding of the trial court was reversed. The findings are in respect of the very same property. The documents that were relied on and the evidence let in before the trial court related to the same property and therefore, the marking of the judgment of the trial court at the time of appeal cannot be said to have prejudiced the case of the appellant.
12. In any event, Order 41, Rule 27, C.P.C. permits the production of additional evidence in the appellate court if "the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause". The appellate judge has clearly held that "the earlier litigation, wherein a finding has been rendered on the issue of title between the decree holder and the person claiming title under the judgment debtor, will amount to res judicata for the present claim by the obstructors and the document is necessary for deciding the substantial issue in the appeal". Therefore, no substantial question of law arises from the reception of additional evidence.
13. Rectification Application :
The objection on this ground also deserves to be rejected since merely because the drafters of the decree had committed an error and instead of mentioning Subramania Mudali Street, by mistake mentioned it as Subbaraya Mudali Street, the decree holder, who has obtained the decree in the year 1988 and is still fighting to execute his decree, cannot be denied his right on the basis of the mistake of the court.
14. In A.I.R. 1979 Patna 88 [Rukmini Devi vs. Pawan Kumar], a Division Bench held that the amendment at the execution stage cannot be allowed and that the decree cannot be amended if it is prepared on the basis of the judgment; if there is variance with the judgment and decree then only, the decree can be amended and otherwise not. However, that was a case where the decree was passed only against the vendor and against the subsequent purchaser and therefore, it was held that such a decree cannot be amended. The case on hand differs on facts. Here, the appellate court had considered this issue in detail and found that the mistake in Ex.C.2, the sale deed, is only a misdescription and that in the earlier litigation, it was decided that the suit property belongs to the decree holder and a finding has been given in this regard, and also that the identity of the property is satisfactorily established and further and more importantly, "taking advantage of the misdescription, the judgment debtors have created the sale deeds". Therefore, this conclusion is not perverse or unreasonable as to warrant interference.
15. Adjudication of the application under Section 47, C.P.C. and the obstruction application :
In A.I.R. 1998 S.C. 1827 (cited supra), it was held that a third party in possession of a property claiming independent right as a tenant not party to a decree for possession of immovable property under execution, could resist such decree by seeking adjudication of his objections under Order 21, Rule 97, C.P.C. Learned senior counsel for the appellants submitted that this right was denied to the appellants herein, who are bona fide purchasers for value and for this purpose, reliance was placed on (1996) 3 S.C.C. 154 (cited supra), where the Supreme Court, in a similar case, held that the determination of the question of right, title or interest of the objector in the immovable property under execution needs to be adjudicated under Order 21, Rule 98, C.P.C. and that the procedure prescribed is a complete code in itself. The Supreme Court held that, "the executing court is required to determine the question, when the appellants had objected to the execution of the decree as against the appellants who were not parties to the decree for specific performance". The Supreme Court allowed the appeal and directed the executing court to enquire into the matter and record a finding after giving an opportunity to the parties.
16. In the present case, it cannot be said that no opportunity was given to the parties. E.A. No.225 of 2002 was filed by the first respondent for removal of obstruction. E.A. No.2202 of 2002 was filed by the appellants under Section 47, C.P.C. Section 47, C.P.C. requires the court to determine the questions arising between the parties relating to execution, discharge or satisfaction of the decree, and the court that determines this shall be the court executing the decree and no separate suit shall be filed. Again, when there is an obstruction under Order 21, Rule 97, C.P.C., the questions arising between the parties on this application shall be determined by the court dealing with the suit application and not by a separate suit, as seen from Order 21, Rule 101, C.P.C. It could be seen from the typed set of papers that while hearing E.A. No.2202 of 2002, the executing court had heard the parties in detail. The appellants were examined and five documents were marked on their side. The first respondent was also examined and two court exhibits were marked. Therefore, the questions were determined, as they ought to have been, by the executing court, since the person filing the application under Section 47, C.P.C. is not entitled to file a separate suit. Having decided this question under the application filed under Section 47, C.P.C., the learned executing judge considered the application for removal of obstruction and held that all these allegations had been dealt with in the application under Section 47, C.P.C. which had been dismissed on 19.7.2004. Therefore, opportunity was granted by the court to the appellants to adduce oral and documentary evidence. The executing court had dealt with these issues in great detail and had come to the conclusion that the application under Section 47, C.P.C. was meritless. Therefore, this ground is also rejected.
17. The only question that remains to be answered is whether the executing court can grant the relief for possession, which had not been granted in the decree, inspite of the plaintiff asking for the same in his plaint. Though there is an objection that this question is raised only at the time of arguments, since this is a pure question of law, I think it needs to be answered.
18. The judgment in A.S. No.233 of 1995 is relevant in this regard. This was the appeal arising from Rajapandian's suit. Here, Suseela, the first respondent's vendor, was examined as P.W.2 on the side of Rajapandian, who had purchased the property from her. Eight documents were also marked by him. The first respondent, who filed this appeal, examined himself as D.W.1 and marked three documents. All the questions raised in this appeal have been answered by the learned judge, who in order to ascertain the nature of the discrepancies, sent for the suit register and has noted that, "except the street name, the boundaries given are correct". The following extracts from the judgment in A.S. No.233 of 1995 are relevant :
"Suseela has been examined as PW2. In her evidence, she had categorically admitted that she executed an agreement of sale in favour of the appellant, waited for execution of the sale deed for ten years and only after she sold the property to the respondent/plaintiff. The appellant as well as the respondent are residing in the same place. The suit was pending from 1985 for specific performance. It is wondered that the respondent was not aware of the pendency of the suit. The learned counsel for the respondent has submitted that the respondent is a bonafide purchaser for value without notice. I am afraid such plea is not admissible in view of the doctrine of lis pendens."
"Section 95 of the Indian Evidence Act reads as follows -
'When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show it was used in a peculiar sense.
Illustration A sells to B, by deed, 'my house in Calcutta'.
A had no house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed. These facts may be proved to show that the deed related to the house at Howrah."
This shows that Suseela had only one house and that was in Subbaraya Mudali Street and Rajapandian has purchased this property lis pendens. Therefore, the suit for injunction was dismissed and the appeal was allowed.
19. In the present case, the plaintiff, namely the first respondent, had prayed for a direction to the defendants to specifically perform the contract of sale dated 1.12.1982 by executing and registering the sale deed for the property described in the Schedule hereto against payment of the balance and to direct the defendants to surrender vacant premises of the property to No.8, Subbarayan Mudali Street, Otteri, Madras-12. The last paragraph of the judgment reads as follows :
"VERNACULAR (TAMIL) PORTION DELETED"
Why should we restrict the scope of the words, "VERNACULAR (TAMIL) PORTION DELETED"
If we construe it to mean the suit to have been decreed as prayed for, then there is no difficulty. Even otherwise, the hairsplitting construction placed on it does not help the appellants.
20. The judgment in A.I.R. 1982 S.C. 818 (cited supra) answers all the questions raised herein. There, it was contended that the plaintiffs, not having claimed any relief for possession, cannot claim the same relief at a subsequent stage. The following extracts from this decision are relevant for the purpose of this case :
"The contention at the first flush appears to be alluring and plausible but on a closer scrutiny it cannot be accepted.
It would be appropriate to refer to the state of law as it existed prior to the amendment of the Specific Relief Act in 1963. One view was that the decree-holder does not acquire title or right to recover possession unless a sale deed is executed, in execution of the decree for specific performance. In Hakim Enayat Ullah v. Khalil Ullah Khan [A.I.R. 1938 All. 432], a Division Bench of the Allahabad High Court dealing with the question observed :
A decree for specific performance only declares the right of the decree-holder to have a transfer executed in his favour of the property covered by the decree. The decree by itself does not transfer title. That this is so is apparent from the fact that in order to get title to the property the decree-holder has to proceed in execution in accordance with the provisions of Order 21 of the Code. So long as the sale deed is not executed in favour of the decree-holder, either by the defendant in the suit or by the court, the title to the property remains vested in the defendant and till the execution of the sale deed the decree-holder has no right to the possession of the property. It is only the execution of the sale deed that transfers title to the property'."
The Supreme Court then extracted the following paragraphs from A.I.R. 1931 Patna 179 [Atal Behary vs. Barada Prasad] :
"..... 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 rest."
The Supreme Court further held 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 plaintiff may ask for the relief of possession or partition or separate possession in an appropriate case. As pointed out earlier, in view of Order 2 Rule 2 of the Code of Civil Procedure, some doubt was entertained whether the relief for specific performance and partition and possession could be combined in one suit; one view being that the cause of action for claiming relief for partition and possessio n could accrue to the plaintiff only after he acquired title to the property on the execution of a sale deed in his favour and since the relief for specific performance of the contract for sale was not based on the same cause of action as the relief for partition and possession, the two reliefs could not be combined in one suit.
.....
There may be circumstances in which a relief for possession cannot be effectively granted to the decree-holder without specifically claiming relief for possession viz. where the property agreed to be conveyed is jointly held by the defendant with other persons. In such a case the plaintiff in order to obtain complete and effective relief must claim partition of the property and possession over the share of the defendant. It is in such cases that a relief for possession must be specifically pleaded.
.....
If once we accept the legal position that neither a contract for sale nor a decree passed on that basis for specific performance of the contract gives any right or title to the decree-holder and the right and the title passes to him only on the execution of the deed of sale either by the judgment-debtor himself or by the court itself in case he fails to execute the sale deed, it is idle to contend that a valuable right had accrued to the petitioner merely because a decree has been passed for the specific performance of the contract. The limitation would start against the decree-holders only after they had obtained a sale in respect of the disputed property. It is, therefore, difficult to accept that a valuable right had accrued to the judgment-debtor by lapse of time. Section 22 has been enacted only for the purpose of avoiding multiplicity of proceedings which the law courts always abhor.
.....
There has been a protracted litigation and it has dragged on practically for about 13 years and it will be really a travesty of justice to ask the decree-holders to file a separate suit for possession. The objection of the petitioner is hypertechnical. The executing court has every jurisdiction to allow the amendment.
.....
This is an additional reason why this Court should not interfere with the eminently just order of the High Court. The High Court had amended the decree passed by the first appellate court and passed a decree for possession not only against the transferors but also against their transferee, that is, the petitioner.
Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree-holder starts in getting possession in pursuance of the decree obtained by him. The judgment-debtor tries to thwart the execution by all possible objections. In the circumstances narrated above, we do not find any fault with the order passed by the High Court."
The Supreme Court held that even though the plaintiff had not asked for the relief of possession, he could be allowed to amend the plaint at any stage, which included the execution stage. This was because the sale of a property after payment of 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. The Supreme Court questioned why, when a party comes to court, he would be satisfied with simply the execution of the document. Could it be said that the relief for possession was something that he ought to have asked, but did not ask and therefore, he was barred from seeking that relief forever? No. The Supreme Court held that even at the execution stage, this relief could be granted by allowing the plaintiff to amend the plaint. There is only a slight difference in this regard in this case. Had the present plaintiff, namely the first respondent, filed the suit without asking for the relief of possession, A.I.R. 1982 S.C. 818 clearly permits him to amend the plaint at this stage, so that he gets possession upon execution of the sale deed. Can he be placed at a disadvantage merely because he had already asked for it in the plaint itself. This is inconceivable, if not downright unjust. When the court grants a decree for specific performance, what it "promises is to do is all such things as the parties would have been bound to do had this been done without the intervention of the court". Therefore, when the decree for execution of a sale deed is realised, it pre-supposes that the decree holder would be put in possession. A.I.R. 1982 S.C. 818 answers the entire question in favour of the first respondent.
21. A.I.R. 2001 S.C. 3712 (cited supra) is on a totally different footing altogether. In that case, the Supreme Court had to consider the question whether the suit for specific performance was a suit for land or not and there, it was held that it was a suit for performance of a contract and not a suit for land. The appellants cannot draw any strength from the said judgment.
22. In any event, even in the judgment in the present case, the words, "thjp nfl;Lf;bfhz;lgo" and thereafter, "Ex.A.1?d;go, ....." are used and the relief is granted. The only way to construe this judgment is that the relief sought for by the plaintiff is granted and that there shall be a sale deed in accordance with Ex.A.1, which in turn means, possession shall follow. It cannot and should not be construed as an explicit rejection of the relief of possession. There is nothing to indicate that.
23. In A.I.R. 1998 Madras 336 [K.M. Rajendran vs. Arul Prakasam], it was held that in a suit for specific performance of an agreement to transfer an immoveable property, once a decree for specific performance is granted, it includes the term for delivery of possession and it is unnecessary for the court to direct such deliver of possession expressly because the court was directing the enforceement of the entire agreement, including the agreement to delivery possession.
24. In A.I.R. 1996 Bombay 296 [Prataprai Trambaklal Mehta vs. Jayant Nemchand Shah], it was held thus :
"In view of the decided case, it is clear that most important part of such a decree is the portion where the Court directs that the contract to be specifically performed and the details which follow do not in any way limit the jurisdiction of the executing Court to take particular steps which are mentioned in the decree, but all other steps which ought to be taken for giving full effect to the decree for specific performance are not only within the competence of the Court, but the Court is bound to assist the party to that effect."
"Matter can be viewed from another angle also. A suit for specific performance of a contract of transfer of immovable property operates as lis pendens. In other words, any suit against the vendor of real estate for specific performance, his conveyance of the legal title after suit was brought would not suspend the proceedings or defeat the title under the decree of this Court. This is so ruled in Motilal Pal vs. Priya Nath Mitra, (1908) 13 C.W.N. 226. Obvious reason for this is that if when the jurisdiction of the Court has once attached, it could not be ousted by the transfer of the defendant's interest, there would be no end to litigation and justice would be defeated. Consequently, when such a suit for specific performance is ended by a final decree transferring the title, that title relates back to the date of agreement on which the suit is based and the Court will not permit the decree to be rendered nugatory by intermediate conveyances. Once this established legal position is borne in mind, there shall not be any doubt about the competence of the executing court in granting possession even if the decree is silent as far as delivery of possession is concerned."
25. The plaintiff/first respondent has waited for nearly twenty years. The same questions that are now raised by the appellants were raised earlier by their predecessor-in-title in the suit for injunction filed by him. He obtained a decree in his favour, but it was set at naught in the appeal in A.S. No.233 of 1995. Successive vendors cannot be allowed to raise the same issue again and again, since as observed by the Bombay High Court, "there would be no end to litigation and justice would be defeated", thereby defeating the right of the decree holder forever. The appellant cannot plead equity against the first respondent. Not only did the first respondent's vendor Suseela deliberately sell the property lis pendens to Rajapandian; he too, in turn, after having failed to implead herself, had sold the property to others. The decree holder cannot suffer. So, I see no reason to interfere with the judgment of the lower appellate court.
26. The substantial questions of law raised at the time of admission and the question of law that has been raised now at the time of arguments, subject to the objection of the counsel for the first respondent, are all answered against the appellants. The second appeals are, therefore, dismissed. No costs. Consequently, C.M.P. Nos.17243 of 2005 and 1022 of 2007 is closed.
27. Learned counsel for the appellants submits that the appellants have been living in the property for the last five years and would find it difficult if they have to shift immediately and prays for two months' time to vacate the same. Therefore, two weeks' time is granted to the appellants to file an affidavit of undertaking to hand over vacant possession of the property within two months from the date on which they file the affidavit into Court and also undertaking not to create any encumbrance or alienation until such time they hand over vacant possession of the property to the first respondent. This affidavit shall be filed after serving a copy of the same on the counsel for the first respondent. If this affidavit is filed within the time specified above, the first respondent shall not execute the decree until the expiry of the two months' time granted by this Court.
ab To
1. The Additional District Judge (Fast Track Court-V), Chennai.
2. The Registrar, City Civil Court, Chennai.
3. The Section Officer, V.R. Section, High Court, Chennai.