Surinder Kumar v. Usha Malhotra & Ors.

1. Both the above appeals arise from the impugned order dated 3"* May, 2012 passed by the Additional District Judge, Delhi, thus, are being disposed of together. RFA 310/2012 ' V

2. By the impugned order, plaint has been rejected. It has been held that suit has become infructuous on account of subsequent events. Hence, plaint is rejected.

3. Factual matrix is that Shri Surinder Kumar filed a suit for specific performance and permanent injunction against Smt. Usha Malhotra, Shri Naresh Kumar and Station House Officer, Police Station Sarup Nagar, Delhi. Shri Surinder Kumar alleged in the plaint that Smt. Usha Malhotra was recorded owner and in possession"ofthe land admeasuring one bigha falling in KhasraNo. 7/22, situated in the area of Village Libaspur, Delhi (for short hereinafter refeiTed to as "suit land"). She entered into an Agreement to Sell on 20"" November, 2006 with him and one Shri Tuisi Dass against valuable sale consideration of ?3 lacs. In part performance, possession ofthe suit land was handed over to him. Smt. Usha Malhotra also executed a General Power of Attorney, Will, Affidavit, Receipt etc. in their favour on 20"' November, 2006 itself General Power of Attorney was duly registered with Sub Dass as well and became absolute owner of the entire land. Later 1:! H r: ^ y >4' jti on, intention of Snit. Uslia Malhotra became malafide and she colluded with Shri Naresh Kumar in order to dispossess him. Shri Naresh Kumar started claiming himselfto be owner of suit land on the basis of Agreement to Sell, Power of Attorney, Will, Receipt etc. allegedly executed by Smt. Usha Malhotra. On this premise, suit for specific performance and permanent injunction was filed. Itwas prayed that Smt. Usha Malhotra be directed to execute Sale Deed and get the same registered with Sub Registrar. It was further prayed that Smt. Usha Malhotra and Shii Naresh Kumar be restrained from encroaching upon/trespassing on the suit land. It was further prayed that Station House Officer, Police Station Samp Nagar be directed to provide necessary police protection.

4. During pendency ofthe suit, on an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 ("CPC", for short) Shri Surinder Kumar was permitted to amend the plaint wherein he alleged that the Station House Officer had filed afalse status report dated 23"''' August, 2008 stating therein that Shri Naresh Kumar was in possession ofthe suit land and since there was dispute-about the ownership of the property, a report under Section 145 of RTA 310/2012 Page 3of[9] 77' > / •V u Cr.P.C. had been sent to Special Executive Magistrate, which was sub-judiqe. It was alleged that Shri Naresh Kumar had illegally taken over possession ofsuit land in 2"'^ week ofAugust, 2008 and the report filed by Station House Officer was false and fabricated. In the amended plaint, relief of possession was also added besides seeking specific performance ofthe agreement to sell dated 20"^ November, 2006.

5. • During the trial, Shri Ajay Mangla son of Shri Surinder Kumar filed an application under Order 22 Rule 10 CPC seeking his impleadmerit in place of his father Shri Surinder Kumar on the pretext that interest in the suit land had devolvedon him since Smt. Usha Malhotra had sold the suit land to him, vide a registered Sale Deed dated 5'^ January,. 2012 for a total sale consideration of ^11,05,000/- (Rupees Eleven Lacs Five Thousand Only) executed through her attorneys, namely, Shri SurinderKumar and Shri Tulsi Dass. Trial court has dismissed this application vide the impugned order and has rejected the plaint. Trial court has held that on transfer of the suit land in favour of Shri Ajay Mangla through a Sale Deed executed by Smt. IJsha Malhotra through her attorneys if'i' /suit for specific performance had been rendered infructiious.

6. I have heard learned counsel for the parties and considered the material on record. From the facts narrated above I am of the view that the order passed by the trial court does not suffer from any illegality and requires no interference. Shri Surinder Kumar had filed a snit for specific performance against Smt. Usha Malhotra and Shri Naresh Kumar. He had placed reliance on the Agreement to Sell dated November, 2006 executed by Smt. Usha Malhotra in favour of him and Shri Tulsi Dass and he sought specific performance thereof He had prayed for execution of a Sale Deed by Smt. Usha Malhotra through the mandate of court. Relief Of possession was consequential to the relief of specific performance. Slu-i Surinder Kumar could have obtained the relief of possession only upon execution of the Sale Deed in his favour by Smt. Usha Malhotra and not otherwise. Duringpendency of the suit, suit land has been admittedly sold by Smt. Usha Malhotra to Shri Ajay Mangla, for ^11,05,000/- (Rupees Eleven Lacs Five Thousand Onl)') vide a registered Sale Deed, thus, relief of specific performance in favour of Sliri Surinder Kumar had become -pTTij?- '4y f. ft •i r r • 'r\ infructuoLis since said sale was duly accepted by Shri Surinder Kumar as he had confirmed the same for the reasons that he had executed the Sale Deed along with Shri Tulsi Dass in the capacity of attorney of Ms. Usha Malhotra. It is deemed that he had given up the claim ofspecific performance. By executing the Sale Deed as attorney of Ms. Usha Malhotra he gave up his rights, if any, in the suit land. If that is so, upon execution of Sale Deed by Smt. Usha Malhotra in favour of Shri Ajay Mangla through Shri Surinder Kumar and Shri Tulsi Dass the suit for specific performance was rendered infructuous as on the date of execution of Sale Deed, inasmuch as Shri Surinder Kumar lost his right to seek relief of specific performance as also the possession on the basis ofalleged agreement dated 20"" November, 2006. Thus, Shri Ajay Mangla, being purchaser of the suit land could not have stepped into the shoes ofShri Surinder Kumar and proceeded with the suit against Shri Naresh Kumar.

7. That apart, Shri Ajay Mangla has acquired rights in the suit land by virtue of Sale Deed from Ms. Usha Malhotra. Ownership rights in the suit land devolved upon him from Ms. Usha Malhotra > ! and at best under Order 22 Rule 10 CPC he could have sought his substitution in place of Ms. Usha Malhotra and not against Shri Surender Kumar,

8. Shri Ajay Mangla claims ownership right on the suit land pursuantto the Sale Deed executed by Ms. Usha Malhotrathrough Surinder Kumar and Shri Tulsi Dass, thus, an independent cause of action has accrued in his favour to seek possession being owner of the suit land. As regards suit filed by Shri Surinder Kumar is concerned, same was rendered infructuous upon sale of the suit land by Smt. Usha Malhotra to Shri Ajay Mangla.

9. Learned counsel for the appellant has placed reliance on judgments titled Babu Lai vs. M/s. Hazari Lai Kishori Lai and Others, AIR 1982 Supreme Court 818, Hemchand vs. Karilal, AIR 1987 Rajasthan 117, Dhurandhar Prasad Singh vs. Jai Prakash University and Others, AIR 2001 Supreme; Court 2552. I have I perused thesame and fmd the same to be inthe context of different facts. In Dhurandhar Prasad Singh (supra) Supreme Court has held that if there has been devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or RFA310/2012 /(a %, % against persons upon whom such interest has devolved under order

22 Order 22 Rule 10 of the Code. In Hemchand (supra) Rajasthan High Court has held that ordinarily the relief for specific performance of a contract implies the relief for possession ofthe immoveable property also and in such a case the plaintiff need not even ask for the decree for possession, in case no third party has intervened. In BabuLai (supra) Supreme Court has held that in a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale 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 ofthe decree holder. It was also held that where after the contract between the plaintiff and defendant the property passed in possession ofathird person, a mere relief for specific performance ofthe contract ofsale may not entitle the plaintiff to obtain possession as against the party hi actual possession ofthe propert>'. 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, without specifically providing for cleliveiy 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. However, facts of this case are totally different. In this case Shri Ajay Mangla had derived title pursuant to the Sale Deed from Ms.Usha Malhotra,, thus he could not have sought substitution in place of Shri Surinder Kumar(plaintiff).The suit filed by Shri Surinder Kumar for specific performance and possession became infructuous immediately on sale of the suit land by Ms. Usha Malhotra which sale was duly aclcnowledged by Mr. Surinder Kumar.

13. For the foregoing reasons, both the appeals are dismissed. Miscellaneous applications are disposed of as infructuous. A.K. PATHAK, J. FEBRUARY 12, 2013