- (1.) THIS is a defendant's second appeal arising out of a suit for specific performance of a contract of sale of an agricultural land measuring 7 Bighas 5 Biswas comprised in Khasras Nos. 488 and 489 situated in village Padu, Tehsil Merta, Disrtict Nagaur.
(2.) THE plaintiff came forward with the case that on 29-6 67 the defendant agreed to sell him his agricultural land for Rs. 1,001/- and executed a sale deed on a stamp paper, but he refused to have it registered. He further averred that he was always ready and willing to perform his part of the contract for bearing the expenses for registration. In the alternative the plaintiff prayed for refund of the money paid by him to the defendant. The defendant contested the suit. He denied that he entored into any contract of sale with the plaintiff, as alleged. He further denied the execution of the sale document as also the receipt acknowledging the payment of Rs. 1,001/-to him. He further raised the plea that the suit was triable exclusively by a revenue court. On the pleadings of the parties the learned Additional Munsif, Merta, by whom the suit came to be tried, framed the following issues: " (1) Whether the defendant sold his Khatedari land Khasara Nos. 488-489 to the plaintiff located within limits of Riya Badi for a sum of Rs. 1,001/- and executed an agreement in favour of the plaintiff? (2) Whether the plaintiff is entitled to have the possession of the land in specific performance of the contract? (3) Whether the plaintiff is entitled to have the registration from the defendant? (4) Whether the agreement is inadmissible in evidence? (5) Whether the plaintiff had more land than the ceiling limit, consequently agreement of sale of land is illegal and defendant had no right to sell? (6) Relief" Both the parties produced their evidence- Issue No. 4 was decided by the learned Additional Munsif as a preliminary issue and he held that on payment of sufficient stamp duty the document could be received in evidence. The requisite duty seems to have been paid. On consideration of the evidence, the learned Additional Munsif came to the conclusion that the sale document had been executed by the defendant and he had further received the consideration. Issue No. 3 was also decided in favour of the plaintiff. Issue No. 2 came to be deleted subsequently when the plaint was amended by the plaintiff. I may mention here that whereas the plaintiff amended the plaint, the defendant did not choose to file any fresh written statement, but submitted before the trial court that the written statement in reply to the unamanded plaint be taken to be the written statement to the amended pliant. While amending the plaint the plaintiff had confined his prayer to one for specific performance of the contract only and the prayer for possession was not included. No evidence was led by the defendant regarding issue No 5 and, therefore, it was decided against the defendant. In the result the learned Additional Munsif decreed the suit for specific performance and ordered the defendant to execute a regular sale-deed for the land in question and have it registered. Aggrieved by the decree of the learned Additional Munsif the defendant went up in appeal to the Court of the Civil Judge, Merta, who dismissed to appeal. It is in these circumstances that the second appeal has been filed by the defendant to this Court. Learned counsel for the appellant has challenged the decree of the court below mainly on two grounds. In the first place he contended that the civil court had no jurisdiction to try the suit as the same was exclusively triable by a revenue Court. In the second place he contended that a suit for specific performance of the contract of sale without asking for the relief of the possession of the land was not maintainable. Learned counsel placed reliance on a number of cases, which I propose to deal with hereinafter.
(3.) I may take up the second contention first as its determination will be helpful in disposing of the first contention as well. Learned counsel referred me to Bimal Kumari vs. Asoke Mitra (l ). It was a suit filed in the original side of the Calcutta High Court. It was for (a) specific performance of an agreement for sale of a property situated outside the jurisdiction of the Calcutta High Court, (b) for leave under O. 2, R. 2, C. P. C. , in respect of possession of the said premises, (c) for a decree for a sum of Rs. 30,000/- with interest thereon at 12 per cent, from 22-1-1948 until payment, if title be not found good on such enquiry. Other reliefs were also prayed for. Now in the agreement to sell the property it was mentioned that the vendor would execute and register a proper deed of conveyance and simultansously deliver possession to the purchaser Learned Judge, who tried the suit, refused leave under O. 2, R. 2, C. P. C. He observed that the cause of action for possession was the same as the cause of action for the specific performance. It was pointed out that on the same averments in the plaint, he would be entitled to ask for possession also. He need allege nothing more he need not prove anything more. In the circumstances leave was not given. The learned Judge observed: - "if the plaintiff succeeds in this cause and a conveyance is executed in her favour by the defendants or by the court, in the plaint which will follow in the suit for possession the same allegations would have to be made. On the agreement in suit the plaintiff does not ever have to make a demand for possession after the conveyance. Her claim to possession arises simultaneously with the execution of the conveyance. If she was to file a suit to embrace the relief as to possession in the first instance she would only have to state what she has stated in the present plaint and merely add a relief as to possession. The plaintiff in his case has omitted to sue for possession in order to get an adjudication by this Court and if the Court has any discretion in the matter in order to avoid multiplicity of proceedings, leave should not be given in such a case under O. 2, R. 2. If something more had to be done under the agreement before the plaintiff could get possession, then the cause of action for the suit for possession might have been different or there might at least have been some ground for the plaintiff not asking for possession; but in this case she seeks to keep the sword hanging on the defendants in respect of her claim to possession merely because she finds it impossible to obtain that relief in this Court. It might have been open to her to give up her right to possession under the agreement and she could have asked for it if and when the document was executed on the strength of that conveyance, but that is not a course which she has chosen to adopt It may be that in that case there would be other difficulties in her way. However that may be, on the facts of this case I am not prepared to hold that the discretion of the Court should be exercised in favour of the plaintiff in giving leave under O. 2, R. 2. " The observations in the above passage to the effect that "it might have been open to her ( plaintiff) to give up right to possession under the agreement and she could have asked for it if and when the document was executed on the strength of that conveyance, but that is not a course which she had chosen to adopt. ", I am afraid, do not lend support to the contention of the learned counsel that without asking for the relief of possession the relief for specific performance alone could not have been asked for. In Krishnaji vs. Sangappa (2), the learned Judges of the Bombay High Court observed: - "in a suit for specific performance of a contract of sale though a claim for possession might be made it is not obligatory upon the plaintiff to make such a claim. Under sec. 54 of the Transfer of Property Act, the contract for sale of immovable property itself creates no interest or charge upon the immovable property, and until the claim for specific performance is decreed in favour of the plaintiff it cannot be said that he is entitled to possession, though for the sake of convenience, to avoid multiplicity of suits, it might be open to the plaintiff to make a claim for possession in the same suit. " The same view prevailed in the Madras High Court vide T. Rangayya Reddy vs. V. R. Subramanya Aiyar (3 ). I am in respectful agreement with the observations in the Bombay case. ;