Mohammed Haneefa v. Radhamani Amma W/o Bethur Balakrishnan Nair and K. Ahamed S/o Mohammed Kunhi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY ,THE 04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** ## **RSA.No. 373 of 2009** **AGAINST THE JUDGMENT AND DECREE DATED 28-02-2009 IN AS 64/2008 of SUB COURT, HOSDRUG** **AGAINST THE ORDER DATED 12-11-2008 IN E.A.NO.201/2008 IN E.P.NO.193/2007 IN OS 35/1988 of MUNSIFF COURT, HOSDRUG** **- - APPELLANT IN R.S.A APPELLANT IN A.S. RESPONDENT NO.2 IN E.A.** **MOHAMMED HANEEFA, S/O.T.HASSAINAR, RESIDING AT PATTARACHAL, PANAYAL VILLAGE, HOSDURG TALUK.** **BY ADVS. SRI.K.JAYAKUMAR (SR.) SMT.GEETHA P.MENON SRI.P.B.KRISHNAA SRI.NEELAKANDAN.P.M.** **- - RESPONDENTS IN R.S.A. RESPONDENTS IN A.S. APPLICANT & RESPONDENT NO.1 IN E.A:** **1 RADHAMANI AMMA W/O.BETHUR BALAKRISHNAN NAIR, RESIDING AT PERIYA IN PERIYA VILLAGE AND P.O., HOSDURG TALUK,(VIA) PALLIKKERE,, ANIL RAJAGOPALAN,S/O. -DO- IN -DO- -DO-** **2 K.AHAMED S/O.MOHAMMED KUNHI RESIDING AT DOOR NO.W5/218,KUNIYA, PERIYA VILLAGE AND POST,HOSDURG TALUK.** **R1 BY ADVS. SMT.N.SHOBHA SRI.K.SHRIHARI RAO** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.No. 373 of 2009 2** ## **C.R.** ## **JUDGMENT** A decree for specific performance of contract for sale put in execution. During the course of execution steps were taken to get delivery of possession of property. It was obstructed at first on 5/12/2007 and thereafter on 11/03/2008. The decree holder thereon filed E.A.No.201/2008 on 1/4/2008 to remove the obstruction. It was allowed. It was taken up in appeal in A.S.No.64/2008 before the Sub Court, Hosdurg, but the Appellate Court concurred with the order passed by the execution court by dismissing the appeal on 28/2/2009, against which the obstructor came up with this second appeal. 2. There is no much dispute with respect to the passing of a decree for specific performance of contract for sale of immovable property having an extent of two acres. The obstructor/the appellant is a subsequent purchaser of the property having an extent of one acre out of the large extent of two acres under Ext.B1 document dated 21/11/1995. It was purchased during the pendency of the second appeal pertaining to the decree passed for specific ## **RSA.No. 373 of 2009 3** performance. The contention raised by the appellants/the obstructors is that they had purchased the property having an extent of one acre without noticing the pendency of litigation and they were totally unaware of the proceedings. Subsequent to the purchase they took possession and made improvements by constructing building therein. 3. Both the execution court and the First Appellate Court rejected the contention raised by the appellant being a pendente lite transferee, he is bound by the decree, as the transfer was effected during the pendency of the second appeal/pending litigation. 4. _Inter alia_ it was submitted by the learned counsel for the appellant that the decree for specific performance which was put in execution does not contain any relief granting recovery of possession of the property in question. No relief of recovery of possession was incorporated in the suit and no decree for possession was passed. It was submitted that unless there is a decree for recovery of possession it is not at all permissible to execute the decree by delivering possession of property. ## **RSA.No. 373 of 2009 4** Section 22 of the Specific Relief Act, was brought to the notice of this court and took support from the two decisions of Apex Court in _**Babu Lal v. M/s Hazari Lal Kishori Lal (AIR 1982 SC 818)**_ , and _**Adcon Electronic Pvt.Ltd. v. Daulat & Anr (2001 SAR(Civil)**_ _**806).**_ It was also contented that there is no application of Section 52 of the Transfer of Property Act as the suit for specific performance is not a suit for land. 5. The questions came up for consideration are: _1. A mere decree for specific performance of contract for sale of immovable property can be put in execution to recover possession in the absence of specific relief granting recovery? Is there any difference in the legal position, when possession of diverted to a person, who is not bound by the contract for sale?_ _2. What is the application of Section 22 of Specific Relief Act, when the decree was put in execution in the absence of specific relief granting recovery. Can the execution court recover possession in execution of decree granting specific performance or the plaintiff has to go for a suit for recovery of possession based on the title derived under the decree?_ _3. A suit for specific performance of contract for sale of immovable property would come under the purview of expression “suit for land” and what would be the_ ## **RSA.No. 373 of 2009 5** _impact of Section 52 of Transfer of Property Act, on a pendente lite transferee, when the suit resulted in a decree granting specific performance?_ 6. Admittedly, no relief was sought in the suit for recovery of possession of property which is the subject matter of the contract for sale and no decree was granted for recovery of possession. The main contention raised is that a suit for specific performance is not a 'suit for land' and as such, Section 52 of the Transfer of Property Act has no application. A suit or proceeding in which a right to immovable property is directly and specifically in question alone can be brought under the purview of Section 52 of the Transfer of Property Act, it was argued. It was submitted that a suit for specific performance of a contract for sale is not a “suit for land” and took support from the decision in _**Adcon Electronics Pvt.Ltd's**_ case( _supra_ ) and hence the hit of Section 52 of Transfer of Property Act, 1882 would not come into play as against a pendente lite transferee, who is not bound by the contract. In that case the contention that a suit for specific performance of a contract is one for acquisition of ## **RSA.No. 373 of 2009 6** title to the land and hence a 'suit for land', was repelled by the Apex Court by setting the legal position that in its true sense a suit simplicitor for specific performance of a contract for sale of land is a suit for enforcement of terms of contract and the title to the land is not the subject matter of the suit. It was contented that a suit for specific performance of a contract for sale of land is only a suit for enforcement of contract and the title to the land is not the subject matter of the suit and as such the question of 'right to immovable property' would not arise in that suit, but only enforcement of contractual obligation would arise. Hence, Section 52 of the Transfer of Property Act has no application in the matter of a suit or decree for specific performance of a contract for sale of immovable property, it was argued. Section 52 of the Transfer of Property Act is extracted below for reference: _“Transfer of property pending suit relating thereto.- During the [pendency] in any Court having authority [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limts] by [the Central Government] of [any] suit or proceedings_ ## **RSA.No. 373 of 2009 7** _which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose._ _[Explanation.- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]_ (Emphasis supplied) 7. The expression 'any right to immovable property' as incorporated under Section 52 of Transfer of Property Act shall not be understood as 'title to immovable property'. The expression 'right to immovable property' would intake all kinds of right over immovable property, it may be a right of a mortgagee or a mortgagor, lessee or lessor, a right to hold and possess the property, a right of **RSA.No. 373 of 2009 8** improvements over the immovable property, lien or charge created over the property, either by statute or otherwise, and the right of every kind or form over the immovable property and includes the right of possession recognized under Section 53A of Transfer of Property Act (part performance) in furtherance of a contract for sale. The necessary corollary is that the possession obtained in furtherance of a contract for sale of immovable property is also a right to hold the property as against the original owner and others. But a contract for sale itself will not create any interest or charge on the property. (See Section 55 of the Trasfer of Property Act and the decision of _**Apex Court in Meghmala v.G.Narasimha Reddy,(2010) 8 SCC 383: JT 2010 (8) SC 658 (2010) 8 SCALE 237).**_ 8. In a suit for specific performance of a contract for sale of land, title to immovable property is not a matter directly or specifically in issue. It relates to performance and enforcement of contractual obligation of parties to the contract and questions relating to performance alone can be directly or specifically in issue in such suits. But **RSA.No. 373 of 2009 9** the resultant legal consequences by performance or enforcement of contractual obligation of respective parties would be the transfer of title over immovable property and the necessary corollary is that in a suit for specific performance of a contract for sale of immovable property the issue directly and specifically in question must be 'a right to get immovable property based on contractual obligation', though the question relating to title is not directly or specifically in issue. The question relating to title to property should be principally understood as questions of disputed title, claim of title etc. 'Title to property' stands for a question determining title to land, possessory title to the land, determination of controversy about the title to land, establishment of claims regarding title and the like between the parties to the _lis_ . What is involved in a suit for specific performance of contract for sale of immovable property is the question of enforcement of obligation arising out of the contract by the respective parties, though the obligation is pertaining to entitlement of transfer of title to the property to the proposed purchaser, but it cannot be ## **RSA.No. 373 of 2009 10** a suit claiming title, by adjudicating controversy relating to title. In _**Adcon Electronic's**_ case ( _supra_ ), it was elaborately considered in reference to the expression 'suit for land' as embodied under Clause 12 of Letters Patent. The relevant portion of the said judgment is extracted below for reference: _“A suit for land” is a suit in which the relief claimed relates to title to, or delivery of possession of land or immovable property. Whether a suit is a “suit for land” or not has to be determined on the averments in the plaint with reference to the reliefs claimed therein; where the relief relates to adjudication of title to land or immovable property or delivery of possession of the land or immovable property, it will be a “suit for land”. We are in respectful agreement with the view expressed by Mahajan, J.in M/s Moolji Jaitha and Co.vs.The Khadesh Spinning and Weaving Mills C.Ltd [A.I.R (37) 1950 Federal Court 83]_ 9. From the forgoing discussions, it is well clear that in a suit for enforcement of respective obligation arising out of a contract for sale of immovable property, the respective obligation would give rise a question 'as to right of immovable property' which would be directly and specifically in issue and hence the parties to the _lis_ and the **RSA.No. 373 of 2009 11** _pendente lite_ transferee are bound by the decree that may be passed in the suit by virtue of operation of Section 52 of the Transfer of Property Act. 10. Yet another contention raised by the appellant is that unless there is a relief granting recovery of possession of property, the hit of Section 22 of the Specific Relief Act would come into play. The expression 'in an appropriate case' occurred in Section 22(1) cannot be a complete bar, it is only a procedural requirement to avoid multiplicity of suit. Section 22 of the Specific Relief Act is extracted below for reference: |**_“22.Power to grant relief for possession,_**| |---| |**_partition, refund of earnest money, etc.-_**| |**_(1)_**<br>_Notwithstanding anything to the_| |_contrary contained in the Code of Civil_| |_Procedure,1908 (5 of 1908), _<br>_any person_| |_suing for the specific performance of a_| |_contract for the transfer of immovable_| |_property may, in an appropriate case, as_| |_for-_| |_(a) Possession, or partition and_| |_separate possession, of the property, in_| |_addition to such performance;_<br> _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:_| **RSA.No. 373 of 2009 12** _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.”_ (emphasis supplied) 11. Section 22 of Specific Relief Act is really a non-obstante clause prohibiting the application of any of the provisions contained in the Code of Civil Procedure, 1908 contrary to the power vested under that provision to grant a relief of possession, partition, refund of earnest money etc. It is really an enabling provision to the plaintiff to ask for a further relief of possession, and if the subject matter of the contract for sale covers only a fractional right over immovable property or when it was found to be not enforceable in respect of the entire estate (subject matter of the suit), the party can seek for a partition in anticipation of decree granting title to the property, either fractional or otherwise. The legislative intention is to avoid a ## **RSA.No. 373 of 2009 13** second suit for possession or partition. It is against the general proposition that only a co-owner having title over the property alone can maintain a suit for partition based on the “cause of action” as enumerated in the Code of Civil Procedure, but in a suit for specific performance of a contract for sale even prior to the acquisition of right, title and interest over immovable property, either in fraction or in whole, the plaintiff can very well claim for partition in anticipation of acquisition of coownership right over the property and that is why a non obstante clause debarring the application of Code of Civil Procedure in the matter of institution of suit for partition on a specific cause of action was incorporated under Section 22 of the Specific Relief Act. But in so far as refund of the earnest money is concerned the principle under Order II Rule 2 Sub Rule (3) CPC would apply enabling the plaintiff to ask for a further relief of possession or partition or return of earnest money in the alternative. The legislative intent is very clear that provisions were made in Specific Relief Act, 1963, so as to give a complete and exhaustive remedy to the plaintiff in a **RSA.No. 373 of 2009 14** suit for specific performance of contract for sale on land and to avoid multiplicity of proceedings and the scope of a further litigation based on the subject of the lis. Sub Section (2) to Section 22 is really a rule of caution so as to avoid prejudice to the parties, regarding the reliefs which can be granted to the plaintiff besides the decree of specific performance of contract for sale or in the alternative. 12. The question whether it is mandatory to ask for possession of property specifically in a suit for specific performance of a contract for sale depends on various factors. If the parties to the contract had already diverted possession to a person who is not bound by the contract, necessarily there should be a prayer for recovery of possession of property. A subsequent suit for recovery of possession based on the title acquired by specific performance of the contract for sale is also permissible, if it was not raised under Section 22 of the Specific Relief Act. If the contract covers only a fractional interest over immovable property, a relief of partition and separate possession can be claimed by virtue of power ## **RSA.No. 373 of 2009 15** under Section 22 of the Specific Relief Act, though a separate suit for the same relief is maintainable. But in the case of refund of earnest money, a second suit is prohibited since it is a relief available under the same cause of action and the hit of Order II Rule 2 sub Rule (3) CPC would come into play. 13. In _**Babu Lal's**_ case ( _supra_ )the Apex Court had considered the expression “in an appropriate case” occurred under Section 22(1) of the Act, the relevant portion of the judgment is extracted below for reference. _“The expression “in an appropriate case in S.22(1 is very significant. 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 coveyed 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.sec.(2) of S.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.” In a case_ ## **RSA.No. 373 of 2009 16** _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 completely he is bound not only to execute the sale deed but also to put the property in possession of 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 in consonance with the provisions of S.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.”_ 14. A contract for sale of immovable property by its terms intakes the liability to hand over possession of property and it is an obligation attached to the seller by virtue of the terms of contract for sale and once specific performance of contractual obligation of respective parties were ordered, there is no necessity to seek for a specific relief of possession of property, unless the property, either before or after the contract, came to the hands of a person who is not bound by the contract or only a fractional interest over the immovable property was transferred in performance of the contract for sale and no decree for specific **RSA.No. 373 of 2009 17** performance can be executed for getting possession of property when the circumstances fall under the abovesaid two categories, though the contractual obligation would include a liability to give possession of the property. In short, a decree for specific performance of immovable property can only be executed for getting delivery of property from the party to the suit or from any person litigating under them and it cannot be executed for getting possession of property from a person who is not bound by the contractual obligation. 15. Then the question comes whether the _pendente lite_ transferee who is bound by the decree by virtue of Section 52 of the Transfer of Property Act is a person not bound by the contract when he is in possession of property by virtue of pendente lite transfer and whether it could be executed against him in the absence of specific relief granting recovery of possession. A pendente lite transferee is really a person claiming and litigating under the judgment debtor, the original owner, who is bound by the contract. Though there is no privity of contract between the plaintiff and the pendente lite **RSA.No. 373 of 2009 18** transferee, by virtue of application of Section 52 of the Transfer of Property Act, he is bound by the obligation attached to the decree passed for specific performance of the contract including the liability to hand over possession of the property and hence, in so far against a pendente lite transferee is concerned, a separate litigation for recovery of possession of property based on title, though not prohibited, is not at all necessary, unless the same falls under the two category of circumstances referred above. Hence, the concurrent findings rendered by both the Trial Court and the First Appellate Court do not call for any interference by this Court. Appeal fails, dismissed. ## **Sd/-** ## **P.SOMARAJAN** ## **JUDGE** msp //TRUE COPY// P.A. TO JUDGE