Rajasthan High Court - Jaipur
Subhash S/O Chetram vs Seva S/O Thandu (2023:Rj-Jp:13971) on 11 July, 2023
Author: Ganesh Ram Meena
Bench: Ganesh Ram Meena
[2023:RJ-JP:13971]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 4982/2020
Subhash S/o Chetram, R/o Village Vadwa, Tehsil Shiwani Mandi,
District Bhiwani (Haryana)
----Petitioner/Plaintiff
Versus
Seva S/o Thandu, R/o Village Hantundi Tehsil Mundawar, District
Alwar.
----Respondent/Defendant
For Petitioner(s) : Mr. Vimal Choudhary For Respondent(s) : None present HON'BLE MR. JUSTICE GANESH RAM MEENA Order 11/07/2023
1. The petitioner/ plaintiff-decree holder (for short 'the plaintiff-decree holder') has filed this writ petition being aggrieved by the order dated 12.03.2019 passed by the Court of learned Addl. District Judge, Bansur, District Alwar (for short 'the Executing Court') in Execution No.06/2018 (Subhash Vs. Seva) whereby the Executing Court deleted some part of the order dated 13.02.2019 passed by the Executing Court in regard to the handing over of possession of the land in question to him.
2. The facts borne out from the pleadings and arguments, in brief are that the plaintiff- decree holder filed a suit for specific performance against the respondent/ defendant for compliance of the (Downloaded on 11/11/2023 at 06:15:35 PM) [2023:RJ-JP:13971] (2 of 8) [CW-4982/2020] agreement dated 10.09.2012 and to get the registered sale deed executed before the Sub-Registrar, Bansur. The trial court after issuing notice to the respondent/ defendant and recording the evidence, decreed the suit vide judgment and decree dated 19.08.2017. The gist of the decree is quoted as under:-
^^oknh dk ;g okn izfroknh la[;k 01 ds fo:) ,d i{kh; esa vkaf'kd :i ls fMdzh fd;k tkrk gS vkSj vkns'k fn;k tkrk gS fd izfroknh la[;k 01 fu.kZ; fnukad ls gks ekg ds vUnj bdjkjukek fnukafdr 10-09-2012 dh fofufnZ"V vuqikyuk djrs gq;s vkjkth uEcj 155 jdck 01 ,s;j fu"iknu i= djokdj fuoklh xzke gVq.Mh Hkq.Mkoj ftyk vyoj mi iaft;d ckulwj ftyk vyoj] 956 jdck 14 ,s;j] 957 jdck 02 ,s;j] 958 jdck 6-17 ,s;j] 982 jdck 01 ,s;j] 983 jdck 2-94 gsDVs;j] 985 jdck 01 ,s;j] 986 jdck 1-82 gsDVs;j] 989 jdck 2-87 gsDVs;j] 990 jdck 01 ,s;j] 991 jdck 04 ,s;j] 992 jdck 01 ,s;j dqy jdck 14-05 gsDVs;j dk 1@4 Hkkx okds ekStk cqVjs h rglhy ckulwu Hkwfe dk fodz; i= oknh ls 'ks"k jkf'k izkIr dj oknh ds [kpsZ ij rgjhj djokdj oknh ds i{k esa fu"ikfnr djs ,oa mi iath;d ckulwj ds le{k mifLFkr gksdj fodz; i= oknh ls 'ks"k jkf'k izkIr dj oknh ds [kpsZ ij rgjhj djokdj fodz; i= oknh ds i{k esa fu"ikfnr djs ,oa miiath;d ckulwu ds le{k mifLFkr gksdj fodz; i= rLnhd dj iathd`r djkosA ;fn izfroknh la[;k 1 ,slk ugh djs rks ;fn izfroknh la[;k 1 ,slk djus esa vlQy jgrk gS ,oa O;froe djrk gS rks bdjkjukek dh 'krksZ ds eqrkfcd oknh dks ;g vf/kdkjh gksxk fd og U;k;ky; ds ek/;e ls fooknk/khu Hkwfe dk fodz; i= vius i{k esa fu"ikfnr djokus gsrq vkosnu dj ldsxkA izfroknh la[;k 1 ds fo:) LFkkbZ fu"ks/kkKk bl vk'k; dh tkjh dh tkrh fd og fooknk/khu Hkwfe dks fdlh vU; O;fDr dks jgu] c;] fgck vkfn ls fdlh izdkj vUrfjr ugh djsA [kpkZ i{kdkju viuk&viuk cgu djsaxsA fMdzh cukbZ tk;sA [kpkZ i{kdkju viuk&viuk ogu djsxa sA**
3. The plaintiff- decree holder filed Execution No.6/2018 under Order 21 Rule 22 CPC for execution of the judgment and decree dated 19.08.2017. After depositing of the requisite amount (Downloaded on 11/11/2023 at 06:15:35 PM) [2023:RJ-JP:13971] (3 of 8) [CW-4982/2020] the sale deed was got registered under the orders of the trial court and after registration of the sale deed it was placed before the trial court.
4. The plaintiff-decree holder thereafter moved an application for issuing direction to the concerned Tehsildar for mutation and handing over the possession of the land in question to the plaintiff- decree holder. On the application of the plaintiff- decree holder the Executing Court on 13.02.2019 issued direction for mutation of the land in question in favour of the plaintiff- decree holder in the revenue record and also for handing over the possession of the land to him.
5. The Executing Court in view of the report of the Clerk, withdrew and deleted some part of the order dated 13.02.2019 i.e. direction for mutation and handing over the possession of the land in question to the plaintiff- decree holder, vide order dated 12.03.2019.
6. Counsel appearing for the plaintiff- decree holder submits that in a case of decree in favour of the plaintiff in a suit for specific performance, mere execution of the sale deed in favour of the decree-holder is not sufficient and is also of no consequence until and unless the possession of the suit property is not handed over the decree-holder.
Counsel further submits that it would be failure of the Court to exercise its jurisdiction and is patently unjust and capricious overlooks as it does the settled position of law that in a suit for (Downloaded on 11/11/2023 at 06:15:35 PM) [2023:RJ-JP:13971] (4 of 8) [CW-4982/2020] specific performance even if a decree of possession is not sought and passed on such a suit being decreed, the possession of the decreed property in favour of the decree-holder is necessarily implied.
7. In support of his submissions, counsel for the plaintiff- decree holder has relied upon the judgment of the Madras High Court in the case reported AIR 2012 Madras 105 titled Krishnamurthy Gounder vs. Venkatakrishnan & Ors. and also the order of this Court in the case of Gopal Lal Sharma Vs. Smt. Bharti Verma, reported in 2019(1) WLC (Raj.) UC 291.
8. No-one appeared on behalf of the respondent/ defendant even after service of notice of the petition.
9. Heard and considered the submissions of learned counsel appearing for the plaintiff-decree holder, perused the material available on the record and also considered the law cited by him.
10. In a case of decree in favour of the plaintiff in a suit for specific performance of an agreement to sale, the decree will be of no consequence in case the possession of the suit property is not handed over to the decree-holder after execution of the sale deed and in such circumstances it results in failure of justice, even though the plaintiff may not have sought the decree of possession. In the case of Krishnamurthy Gounder (supra), the Madras High Court has held as under:- (Downloaded on 11/11/2023 at 06:15:35 PM)
[2023:RJ-JP:13971] (5 of 8) [CW-4982/2020] "In the judgment of this Court reported in 2007 (3) CTC 529 (S. Sampoornam vs. P.V. Kuppuswamy) also the same principles are reiterated and it was held that even in the absence of any prayer for possession, once a suit for specific performance is decreed the Court has got every power to order delivery of possession. Further, according to me, the Court has got power to grant the relief of possession even in the absence of any such prayer as per the proviso to Section 22(2) of the Specific Relief Act the Court shall at any stage of the proceedings allow the plaintiff to amend the plaint to include the relief. In my opinion/a discretion is vested on the Court to allow the amendment and even in the absence of any prayer and even in the absence of any application for amendment (emphasis mine), the Court can grant the relief of recovery of possession once the suit is decreed for specific performance.
These aspects were not properly appreciated by the Court below and the Court below approached the application in a pedantic manner and dismissed the application without appreciating the judgments of the Hon'ble Supreme Court and of our High Court."
11. In the case of Smt. Sunita Devi Vs. Dinbandu Shah & Ors., reported in AIR 2010 Jharkhand 151, the Jharkhand High Court has held as under:-
"12. In a decree allowing specific performance of contract, the judgment debtor is bound not only to execute the sale deed but also to deliver the suit property in possession of the decree holder in consonance with the provisions of Section 55(1)(f) of the Transfer of Property Act even if delivery of possession was not one of the relief's specifically sought in the plaint. Delivery of possession is implicit in an agreement for sale and also in a decree for specific performance of contract and hence after execution of the deed of transfer in terms of the decree, possession has to be delivered in accordance thereof. This would only ensure substantial justice to the decree holder.
13. In the present case, since the execution of the sale deed was made in favour of the plaintiff by the process of (Downloaded on 11/11/2023 at 06:15:35 PM) [2023:RJ-JP:13971] (6 of 8) [CW-4982/2020] the Court itself, the onus upon the Court is further extended to ensure delivery of possession through the execution proceedings for the purpose of satisfying the decree. Thus, even if there was no prayer for delivery of possession in terms of Section 22 of the Act, the decree holder is entitled to be put in possession of the demised property."
12. In the case of Hemchand Vs. Karilal, reported in Air 1987 Rajasthan 117, this Court has held as under:-
"So far as the question of amendment of the plaint in the peculiar circumstances of this case is concerned, it will only be a futile exercise. As already pointed above the plaintiff had claimed for possession and when the decree for specific performance of the contract has already been passed the mere fact that it specifically did not grant the relief for possession the plaintiff should again amend the plaint. There is no occasion for the plaintiff to amend the plaint when the relief had already been asked for and has impliedly been granted as stated above. I have already pointed above that the explanation 5 to S. 11 would not apply in such a case as the Hon'ble Supreme Court has already clearly indicated in the aforesaid authority, in such a suit the decree for specific performance clearly implies a decree for possession also that is the relief of possession is inherent in the relief of specific performance of the contract of the sale."
13. This Court in the case of Gopal Lal Sharma (supra) has observed in para 14 as under:-
"14. I am of the considered view that the mere factum of the decree for specific performance being passed on a compromise which did not specifically provide for possession was not of any event in view of the principle of law enunciated in the three judgments relied upon by counsel for the plaintiff-decree holder. The decree for specific performance and the resultant execution and registration of the sale deed at the instance of the executing Court in favour of plaintiff-decree holder entailed an implied right of the plaintiff-decree holder to be put in possession of the property so conveyed. (Downloaded on 11/11/2023 at 06:15:35 PM) [2023:RJ-JP:13971] (7 of 8) [CW-4982/2020] That right has been denied by the impugned order of the executing Court failing to exercise its jurisdiction. Resultantly, the impugned order dt. 13.7.2017 is set- aside. The application under Sec. 151 CPC filed at the instance of the plaintiff- decree holder for possession of the suit property in respect of which a sale deed came to be executed and registered in his favour by the executing Court following the judgment and decree dt. 26.2.2016 is allowed. The executing Court is directed to issue a warrant of possession of House No. 267/39, Pratap Nagar, Sanganer, Jaipur in favour of the plaintiff-decree holder."
14. Considering the view of the Hon'ble Courts in the cases referred to above, it is very safe to say that in the case of suit for specific performance even no decree for possession has been sought and the suit for specific performance is decreed, the Executing Court is under an obligation to see that the possession of the suit property as decreed is handed over to the decree-holder.
15. Taking into consideration the facts and the circumstances of the case and the view of the Hon'ble Courts in the cases referred to above, this Court is of the view that the decree of specific performance and the resultant execution and registration of the sale deed at the instance of the Executing Court in favour of the plaintiff-decree holder entailed an implied right of the plaintiff- decree holder to be in possession of the property so conveyed. Since such a right has been denied by the impugned order by the Executing Court failing to exercise its jurisdiction, this Court set asides the impugned order dated 12.03.2019 passed by the Executing Court.
(Downloaded on 11/11/2023 at 06:15:35 PM)
[2023:RJ-JP:13971] (8 of 8) [CW-4982/2020]
16. Resultantly, the writ petition is allowed. The order dated 12.03.2019 passed by the Executing Court is set aside and the Executing Court is directed to issue a warrant of possession of the suit property in favour of plaintiff- decree holder.
17. In view of the order passed in the main petition, the stay application and pending application/s, if any, also stand disposed of.
(GANESH RAM MEENA),J Sharma NK-Dy. Registrar-42 (Downloaded on 11/11/2023 at 06:15:35 PM) Powered by TCPDF (www.tcpdf.org)