Veena Mahajan v. V.N Verma

14. The DH filed the present Execution petition for execution of the Judgement and Decree dated 29th April, 1998. The Objectors have filed against the Objections under Section 47 of CPC, 1908 for protection of their possession as they are in physical possession of the suit property by way of part performance of the Agreement to Sell dated 26th November, 1990 under Section 53A of Transfer of Property Act, 1882 (hereinafter referred to as “TPA, 1882”). The Objectors have asserted that while entering into the transaction on 26th November, 1990, neither were they aware that the JD had already entered into an Agreement to Sell with DH nor was the pendency of suit in their knowledge.

15. It is further asserted that a fraud has been committed on the Court on account of collusion between DH and JD. Despite the JD’s admissions in the cross-examination as DW-1 during the trial that he had entered into an Agreement to Sell with Ms. Kamlesh Gupta, no steps were taken either by JD or DH to implead Ms. Kamlesh Gupta as a party to the Suit.

16. The JD was not in physical possession of the suit property at the time of institution of the suit. The Agreement to Sell was executed by JD in favour of Ms. Kamlesh Gupta prior to filing of the suit and the doctrine of lis pendens enshrined under Section 52 of the TPA, 1882 is not applicable. The Objectors have asserted that they have independent rights and are entitled to protection of their possession by virtue of Section 53A of TPA, 1882.

17. The Objectors have stated that the question of law that has arisen is whether the person having an Agreement to Sell, who may not be affected by Section 52 of TPA, 1882, would have the protection of Section 53A of the TPA, 1882 and if so, whether such person is bound by a Decree made in respect of the immovable property to which they were not made a party.

18. It is submitted that this Court under Order I Rule 10 of CPC, 1908 may add the Objectors as a party to the present proceedings as has been held in Baster Transport and Trading Co. & Anr. vs. Court of Wards Baster and Anr AIR 1955 Nagpur 78. The Objectors have a locus standi to file the objections for which reliance is placed on Kancherla Lakshminarayana vs. Mattararthi Syamala and Ors. 2008 (14) 258. A prayer has, therefore, been made that the objections may be allowed, and the execution proceedings be dismissed.

19. The DH, VeenaMahajan in her Reply to the objections has taken a preliminary objection that the Objectors have already availed all the remedies and all their applications and appeals have been dismissed. The present Objections are frivolous and have been filed only with the dishonest intention to delay the proceedings.

20. In response to the contention of part performance, it is asserted that the Objectors cannot avail any protection under Section 53A of TPA, 1882 as the same is available only against the transferor and not a third party for which reliance has been placed on Rambhau Namdeo Gajre vs. Narayan Bapuji Dhotra (2004) 8 SCC 614. The protection of part performance could have been availed by the objectors from the alleged Transferor i.e., Ms Kamlesh Gupta who was not a party to the main suit.

21. On merits, all the averments made in the application are denied by the DH.

22. Submissions heard.

23. Admittedly, the JD who was the owner of the suit property, entered into an Agreement to Sell dated 14th February, 1986 with the DH, but failed to execute the Sale Deed. The DH filed a Suit for Specific Performance in 1988 which was decreed vide Judgement/Decree dated 29th April, 1988, the execution of which has been sought by way of present Execution Petition.

24. The Apex Court in Sanjeev Lal and Others vs. Commissioner of Income Tax, Chandigarh and Another, (2015) 5 SCC 775 observed that when a right is created in favour of the Vendee, the Vendor is restrained from selling the said property to someone else because the vendee, in whose favour a right in personam is created, has a legitimate right to enforce specific performance of the Agreement, if the Vendor for some reason is not executing the sale deed. It can thus be extrapolated that the consequence of execution of the Agreement to Sell is that the owner cannot sell the property to someone else and the Vendor’s right to further sell the property stands extinguished.

25. Undeterred and in defiance of the legal embargo as explained in Sanjeev Lal (supra), the JD went ahead and executed the Agreement to Sell, registered Will, registered General /Special Power of Attorney, all dated 21st January, 1988 in favour of Ms. Kamlesh Gupta and her husband, Gagan Parshad. Thereafter, the present suit was filed in March, 1988 by the DH and Injunction order was granted on 14th March, 1988 which is subsequent to the delivery of possession of the suit property by the JD to Ms. Kamlesh Gupta.Ms. Kamlesh Gupta in turn executed the Agreement to Sell dated 26th November, 1990 in favour of the Objectors, who were then put in possession of the suit property. Doctrine of Lis Pendis under Section 52 of the Transfer of Property Act, 1882:

26. The Objectors have claimed that the doctrine of lis pendis is not applicable to them since they derive their title, not from the JD, but from Ms.Kamlesh Gupta, who was not a party to the suit.

27. Significantly, the Objectors’ claim to title is based on the transaction entered into during the pendency of the Execution of the decree made in the Suit i.e., they are the transferee pendent lite deriving their rights from the JD even though through Kamlesh Gupta.

28. The Rule of lis pendisis based on the principles of justice, equity and good conscious, which is enshrined in Section 52 of the TPA, 1882. It reads as under: - “Section 52 –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 limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding 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.”

29. In Ballamy vs. Sabine,(1857) 1 DeG&J 566, Lord Cranworth, L.C. about one and a half centuries back, explained that this doctrine is based on the necessity of putting an end to litigation which otherwise would continue ad infinitum. The relevant paragraph reads thus: “…where a litigation is pending between a plaintiff and a defendant as to the right to a particular estate, the necessities of mankind require that the decision of the Court in the suit shall be binding not only on the litigating parties, but also on those who derive title under them by way of alienations made during the pendency of the suit, whether such alienees had or had not notice of the pending proceedings. If this is not so, there could be no certainty that the litigation would ever come to an end.”

30. In Amit Kumar Shaw vs. Farida Khatoon (2005) 11 SCC 403, the Hon’ble Apex Court observed that the doctrine of lis pendens, therefore, applies only when the lis is pending before a Court. It enumerated the following elements that should be present in order to constitute lis pendens:

31. In Smt. Ram Peary vs. Gauri and Ors., AIR 1978 All 318, the Full Bench of Allahabad High Court explained that this rule is based on the principles of public policy wherein a purchaser who purchases during the pendency of a suit need not be impleaded as a party and shall have subservient rights in comparison to the litigating parties. It expounded the doctrine of lis pendens as follows: “…Ordinarily, it is true that the judgment of a court binds only the parties and their privies in representations or estate. But he who purchases during the pendency of an action, is held bound by the judgement that may be against the person from whom he derives title. The litigating parties are exempted from taking any notice of the title so acquired; and such purchaser need not be made a party to the action. Where there is a real and fair purchase without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy; for otherwise, alienations made during an action might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim pendente lite, nihil innovetur; the effect of which is not to annul the conveyance, but only to render it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them.”

32. The Hon’ble Apex Court in the case of Usha Sinha vs Dina Ram (2008) SCC 144 explained the rights of the transferee pendent lite by observing that a transferee from a Judgment Debtor is presumed to be aware of the proceedings before the Court of Law. Thus, he should be careful before he purchases the property which is the subject matter of litigation. Rule 102 of Order XXI of CPC, 1908 thus takes into account the ground reality and refuses to extend a helping hand to purchasers of a property in respect of which the litigation is pending. It recognizes the doctrine lis pendens contained in Section 52 of the TPA, 1882. Similar observations were made by the Apex Court in Sarvinder Singh vs. Dalip Singh (1996) 5 SCC 539.

33. In Sanjay Verma vs. Manik Roy and Ors. (2006) 13 SCC 608, in accordance with equity, good conscience and justice, applying the principles of public policy as contained in Section 52 of TPA, 1882, it was concluded that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail and no question of good faith or bona fide arises. A Transferee pendente lite is bound by the decree just as if he was a party to the Suit. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit. The section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in a Suit, unless the property was alienated with the permission of the court. The view expressed in Ballamy (supra) were thus endorsed.

34. Similarly, in M.S. Mansoor Deen and Ors. vs. Fathimuthu Bevy &Ors. (2009) 4 CTC 489, the Madras High Court observed that the transferees pendente lite from the JD having no independent right in the teeth of Section 52 of the TPA, 1882, cannot resist the execution since under the doctrine of lis pendens a Decree passed in a suit during the pendency of which a transfer is effected, makes the decree binding on the transferee.

35. In Silverline Forum Private Limited vs. Rajiv Trust (1998) 3 SCC 723, while considering the resistance caused by the transferee pendente lite, the Hon’ble Apex Court held that the scope of the adjudication is confined to the question of whether he was a transferee during the pendency of the suit in which the decree was passed. If such finding is in affirmative, the executing court must hold that he has no right to resist or obstruct the proceedings and such person cannot seek protection from the executing Court. The exclusion of such a third party Transferee from raising further contentions is based on the salutary principle adumbrated in Section 52 of TPA, 1882. For example, if the obstructer admits that he is the Transferee pendente lite, it is not necessary to determine a question raised by him that he was unaware of the litigation when he purchased the property. Similarly, a third-party who questions the validity of a transfer made by a DH to an assignee, cannot claim that the question regarding its validity should be decided during the executing proceedings.

36. Hence, the question for determination is whether the title of the Objectors is superior to that of the Decree Holder and whether they are entitled to remain in possession on the strength of the Agreement to Sell dated 26th November, 1990 executed in their favour by Ms. Kamlesh Gupta.

37. The Agreement to Sell was executed by the JD in favour of the DH on 14th February, 1986. Subsequently, he entered into another Agreement to Sell with Ms. Kamlesh Gupta on 21.01.1988, which is prior to the institution of this Suit. Once the Agreement to Sell had already been executed in favour of the DH on 14th February, 1986, any subsequent Agreement to Sell would obviously be subject to the earlier interest already created by way of the Agreement to Sell dated 14th February,

1986.

38. Ms. Kamlesh Gupta could have sought execution of Agreement to Sell only if she could establish that her title was superior to that of the DH. But in the absence of any Sale Deed in her favour, she could not have asserted any ownership rights. Thus, merely on the basis of an Agreement to Sell, she could not have transferred the ownership rights which she herself did not possess.

39. The sole claim of the Objectors’ rests on the Agreement to Sell dated 26th November, 1990 executed by Ms. Kamlesh Gupta during the pendency of the present Suit. From the admitted facts, it is evident that Ms. Kamlesh Gupta merely had an Agreement to Sell and other documents in her favour, but the big question is whether the mere execution of an Agreement to Sell amounted to sale of the suit property as defined under Section 54 of TPA, 1882 or whether it was merely an Agreement subject to the rights of the owner i.e., the JD.

40. Ms. Kamlesh Gupta and her husband Gagan Parshad are the predecessor-in-interest through whom the Objectors are claiming a right and title which cannot be better than that of the predecessor-in-interest i.e., Ms. Kamlesh Gupta. Rather, the rights of Ms. Kamlesh are subservient to those of DH as held in the case of Ram Peary (supra). In addition to this, the JD, having entered into Agreement to Sell dated 14th February, 1986 with the DH, was enjoined by law from entering into any further sale transaction with third party. The facts in hand get squarely answered by the decision of the Apex Court in Sanjeev Lal (supra).

41. The DH has already got a Decree dated 29th April, 1988 in her favour and has been held to be entitled to specific performance on the basis of Agreement to Sell dated 14th February, 1986 which is prior to the documents dated 21st January, 1988 executed in favour of Kamlesh through whom the Objectors are claiming a title.

42. Though the Agreement to Sell between the JD and Kamlesh Gupta was executed on 21st January, 1988 i.e., prior to the institution of the Suit by the DH, the Agreement to Sell dated 26th November, 1990 between Kamlesh Gupta and the Objectors was executed subsequent to the Decree for Specific Performance dated 29th April, 1988 in favour of DH. Thus, Kamlesh Gupta and Ganga Prasad Gupta, though not a party to the Suit, were made party to the Execution Petition No 282/2012 for the execution of the Decree in CS (OS) 553/1988.

43. The explanation to Section 52 of TPA, 1882 provides that lis pendens subsists until the decree is discharged. With the execution of the decree yet to be effected, Suit No 553/1998 is still lis pendence for the purposes for section 52 of the TPA, 1882 making the transaction between Kamlesh Gupta and the Objectors fall under the scope of Section 52 of TPA, 1882. As observed in Sanjay Verma (supra), a Transferee pendente lite is bound by the decree, thus making the appellants, who were transferees from Kamlesh Gupta, bound by the Decree.

44. In Surjit Singh vs. Harbans Singh (1995) 6 SCC 50, the Hon’ble Apex Court answered the question of whether a person to whom the suit property is alienated after passing of the preliminary decree by the trial court which had restrained the parties from alienating or otherwise transferring the suit property, has the right to be impleaded as party, in the negative. While rejecting the impleadment of the assignees, the Hon’ble Apex Court had also observed that if alienation/assignment is allowed in defiance of the restraint order, it would defeat the ends of justice and the prevalent public policy. When the Court intends a particular state of affairs to exist while it is in seisin of a lis, that state of affairs is not only required to be maintained but is presumed to exist till the Court orders otherwise. The court in these circumstances has the duty, as also the right, to treat the alienation/assignment as having not taken place at all for its purposes.

45. In Vidur Impex and Traders Private Limited vs. Tosh Apartments Private Limited and Others (2012) 8 SCC 384, while making a reference to Surjit Singh (supra), it was held that where an Agreement to Sell was made and even the Sale Deed pursuant thereto was executed by respondent No. 2 in favour of the appellants in a clandestine manner and in violation of the injunction granted by the High Court, it cannot be said that any valid title or interest has been acquired by the appellants in the suit property by virtue of such a Sale Deed.

46. Thus, the transaction inter se between Ms. Kamlesh Gupta and the applicant dated 26.11.1990 is covered by doctrine of lis pendens as provided in Section 52 of the Transfer of Property Act, 1882 and the rights acquired, if any, by the applicant was subject to the outcome of the pending suit. This suit has been decreed in favour of the DH, Veena Mahajan and her rights have crystallized into a superior title and Ms. Kamlesh Gupta cannot claim any right title merely on the basis of an Agreement to Sell. Ms. Kamlesh Gupta could not have transferred any title better than what she had in favour of the Objectors. Thus, even if she executed an Agreement to Sell, Will, Special Power of Attorney, General Power of Attorney and Receipt all dated 26th November, 1990 in favour of the Objectors, their rights were not only hit by the doctrine of lis pendens, but also were subject to the decree which has been given in favour of the DH Veena Mahajan.

47. The Objectors do not have any valid independent right title in the property and thus, their objections are without merit and have no right to seek protection of their possession. Protection of possession under Section 53A of the Transfer of Property Act, 1882:

48. The Objectors may have been put in possession pursuant to the Agreement to Sell dated 26.11.1990 by Ms. Kamlesh Gupta, but the other aspect is whether they can seek any protection under Section 53A of TPA, 1882.

49. The essential conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53A of the TPA, 1882 have been explained by the Apex Court in Shrimant Shamrao Suryavanshi vs. Pralhad Bhairoba Suryavanshi (2002) 3 SCC 676 which are:

50. If these conditions are fulfilled, then the equitable doctrine of part-performance provided under Section 53A of TPA, 1882 comes into play in favour of the proposed Transferee who can protect his possession against the proposed transferor, even though the Registered Deed conveying the title is not executed by the proposed Transferor. The protection provided under Section 53A of TPA, 1882 is only against the Transferor. It disentitles the transferor from disturbing the possession of the proposed Transferee who is put in possession in pursuance of such an Agreement to Sell.

51. In State of U.P. vs. District Judge & Ors. 1997 (1) SCC 496, it was observed that the protection is available under the TPA, 1882 as a shield only against the transferor and the proposed vendor who is disentitled from disturbing the possession of the proposed Transferees who are put in possession pursuant to such Agreement. But this has nothing to do with the ownership of the proposed Transferor who remains the full owner of the said land till it is legally conveyed by Sale Deed to the proposed Transferees. It was further observed that Section 53A of TPA, 1882 is merely to protect the possession of the proposed vendee and may entitle him to protection of the possession which they have acquired pursuant to an Agreement to Sell but such a right cannot be pressed against a third party.

52. The pertinent question which arises in the facts of this case is whether the doctrine of part-performance can be availed by the Objectors with whom the judgement debtor has never entered into an Agreement of Sale. In Rambhau Namdeo Gajre vs. Narayan Bapuji Dhotra (2004)8 SCC 614, similar facts as in hand came up for consideration. The owner executed an Agreement to Sell with one Pishorrilal who also took possession in part-performance thereof. Sale deed had never been executed. Within a period of two and a half months, the Pishorilal executed a similar agreement of sale in favour of the appellant and put them in possession of the suit land. Pishorrilal who merely had an Agreement to Sell in his favour, had no ownership right and thus was held to have no right to enter into an Agreement to Sell with the appellants.

53. In the present facts as well the owner had executed an Agreement to Sell in favour of one Ms. Kamlesh Gupta who in turn executed another Agreement to Sell in favour of the present Objectors vide Agreement to Sell dated 26th November, 1990, and also put them in possession. Ms. Kamlesh Gupta being merely having an Agreement to Sell was not the owner and could not have possibly entered into the Agreement to Sell in respect of the suit property with the present Objectors.

54. In Rambhau Namdeo Gajre (supra), it was observed that an Agreement to Sell does not create any interest of the proposed vendee in the suit property. As per Section 54 of TPA, 1882 the title in immovable property valued at more than Rs. 100 can be conveyed only by executing a registered sale deed. This Section specifically provides that a contract for sale of immovable property is a contract evidencing the fact that the sale of such property shall take place on the terms settled between the parties but does not by itself create any interest in or charge on such property. Unless a registered document of sale is executed pursuant to the Agreement to Sell in favour of the proposed transferee, the title of the suit land continues to vest in the original owner and the property remains in his ownership. The doctrine of part performance can be availed by the proposed transferee against the Transferor or any person claiming under him and not against the third party with whom he does not have any privity of contract.

55. The Scope of Agreement to Sell and the right, title and interest which are created under an Agreement to Sell was explained by the Apex Court in Suraj lamp and Industries private limited vs. State of Haryana (2012) 1 SCC 656. It was held that the Agreement to Sell coupled with other documents namely Special Power of Attorney, General Power of Attorney are not transactions of transfer or sale and cannot be treated as a complete sale or conveyance. They may continue to be treated as existing Agreement to Sell and nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. These documents may even be used to obtain specific performance or to defend possession under Section 53A of the TPA, 1882 or may also be used to apply for regularization of allotments/leases by development authorities. However, the Agreement to Sell independently continues to be only an agreement and does not create any valid transfer of ownership in the suit property.

56. In Rekha Nankani vs. Kulwant Singh Sachdeva and Ors. (2009) 107 DRJ 282, this Court observed that if a property was bound by the Agreement of the owner/vendor, then merely because the vendor had transferred the property, the transferee shall not acquire rights better than that of the vendor and shall be subject to the liability of the vendor. Similar observations were made by the High Court of Allahabad in Smt. Ram Peary (supra).

57. Therefore, in view of the law as laid down in the afore-discussed case law, it may be concluded that the Objectors are not entitled to any protection of their possession under Section 53-A of TPA, 1882. Alleged Fraud and Collusion between the Decree Holder and the Judgement Debtor:

58. A plea has been set up by the Objectors that the Judgement and Decree dated 29th April, 1988 is not executable as it has been obtained by fraud and collusion between the decree holder and the judgement debtor with the view to cause prejudice to the interest of Kamlesh Gupta in the property in question, who was having enforceable rights against the property in view of the Agreement to Sell dated 21st January, 1988 having been executed in her favour and she being put in physical possession of the property in question.

59. Though a plea of fraud has been taken on behalf of the applicant, but aside from claiming a fraud and collusion between the decree holder and the judgement debtor, no further facts have been disclosed from where any inference of there being fraud and collusion can be inferred. In fact, the Agreement to Sell dated 14th February, 1986 executed in favour of the DH, Ms. Veena Mahajan was prior to the Agreement to Sell dated 21st January, 1988 executed in favour of Ms. Kamlesh Gupta. No fraud or collusion has been even prima facie disclosed by the applicant in its objections.

60. Moreover, the JD had filed an appeal by way of RFA (OS) 86/1998 challenging the Decree in favour of the DH which was dismissed on merits on18th January, 2012.The conduct of the JD also does not reflect any collusion with the DH. Cancellation of earlier Agreement to Sell dated 14th February, 1986:

61. The Objectors have further asserted their right over the suit property by claiming that there is no finding in the judgement that the JD had entered into an Agreement to Sell with Ms. Kamlesh Gupta only after cancellation of the Agreement with the DH in respect of the suit premises. In the absence of any such determination of the controversy about the Agreement to Sell in favour of DH having been cancelled by the JD before entering into Agreement to Sell with Ms. Kamlesh Gupta, the Decree of Specific Performance could not have been passed against the JD.

62. This argument is completely fallacious because all the aspects surrounding the Agreement to Sell had been specifically considered while allowing the decree of specific performance in favour of the DH. The aspect of cancellation of the Agreement to Sell in favour of the DH was specifically considered in the judgement dated 29th April, 1998. This aspect of cancellation of the Agreement to Sell in favour of decree holder was also specifically considered in RFA (OS) 86/1998 and the same was negated. Moreover, it is not within the scope of the Objectors to challenge the Decree dated 29th April, 1988 itself, which has already attained finality. Bona fide Purchase: Not Aware of the previous Agreement to Sell in favour of DH:

63. The Objectors have set up a defence that they were not aware of the Sale Agreement between the DH and the JD. Section 19 of the Specific Relief Act, 1963 provides for the relief to the parties claiming under them by subsequent title. It reads as under: “Section 19: Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against— (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;

(c) any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;

(d) when a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation; (e) when the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company: Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract.”

64. Lord Buckmaster speaking for a five judge bench in Mt. Fatima Bibi vs. Saadat Ali, AIR (1930) Privy Council while interpreting a parimateria provision of Section 27 (b) of the old Specific Relief Act held that even though the title may be subsequent to the Agreement to Sell of which specific performance is claimed, but if that title was in pursuance to an Agreement of a date earlier to the date of the Agreement of which specific performance was claimed, then the plaintiff is not entitled to the relief of specific performance.

65. In R.K. Mohammed Ubaidullah & Ors. vs. Hajee C. Abdul Wahab

(D) Ors. (2000) 6 SCC 402, the Hon’ble Apex Court observed that the person who purchases the property should have made necessary effort to find out whether the title or interest of the person from whom he is making purchase of the property was in actual possession of such property. Considering the effect of Section 19 of the Specific Relief Act, 1963, and Section 52 of TPA, 1882, it was held that subsequent purchasers have to be fairly informed before he purchases the suit property.

66. Similar facts as in hand came for consideration in Guruswamy Nadar vs P. Lakshmi Ammal (2008)5 SCC 796, wherein the during the pendency of a suit for specific performance, the owner sold the property to another person and the contention of bonafide purchaser was examined. It was held that the defence of bonafide purchase is not applicable during lis pendens.

67. This plea of being unaware of the prior Agreement to Sell or of bona fide purchase does not come to the rescue of the Objectors. No Relief of possession is claimed:

68. The Objectors have taken the ground that the decree in the present suit was for the Specific Performance of the Agreement to Sell dated 14th February, 1986 in respect of the suit property in favour of the DH. The fundamental question which has arisen is whether the DH can claim possession when the JD himself was not in physical possession thereof. In addition to this, no relief with respect to delivery of possession was granted even though it was one of the reliefs sought in the Suit. The DH is, therefore, not entitled to seek possession.

69. There has been a divergence of opinion in various judgements as to whether the possession can be delivered while executing a Decree for Specific Performance, when no relief of possession is sought. To obviate the confusion, the Law Commission in its 9th Report submitted on 19th July, 1958 recommended introduction of Section 22 of the Specific Relief Act, 1963 which provided that no relief in a Suit for Specific Performance may be granted unless it is specifically claimed. Section 22 of the Specific Relief Act, 1963 was thus introduced which reads as under: ―Section 22. Power to grant relief for possession, partition, refund of earnest money, etc.—(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for— (a) possession, or partition and separate possession, of the property, in addition to such performance; 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: 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 subsection (1) shall be without prejudice to its powers to award compensation under Section 21.”

70. There is no doubt that no specific relief of possession has been granted despite a prayer being made for the same. This aspect was considered by the Madras High Court in S.S Rajabather vs. N.A. Sayeed AIR 1974 Mad 289, held that if the relief of Specific Performance of a Contract for Sale was granted by a Decree, everything which was necessary for the contract to be specifically performed, can be ordered and informed in the execution.

71. In Gyasa vs. Smt. Risalo AIR 1977 Allahabad 156, Allahabad High court held that it was not always incumbent on the plaintiff to claim possession of partition or separate possession in a suit for specific performance of the contract for the transfer of immovable property. This is to be done where the circumstances so demand. The relief of specific performance of the contract of sale embraces within its ambit not only execution of sale deed but also possession of the property which is the subject matter of the sale deed. Similar observations were made in Narayana Pillai Krishna Pillai vs. Ponnuswami ChettiarSubbalekshmi Ammal AIR 1978 Kerala 236; by the Division Bench of the Calcutta High Court in Debabrata Tarafder vs. Biraj Mohan Bardhan AIR 1983 Calcutta 51, Sm. Dhiraj BalaKaria Vs. Jethia Estate Pvt. Ltd 1982 SCC OnLine Cal 152.

72. A similar situation, as in hand, was discussed by the Hon’ble Apex Court in Babu Lal vs. Hazari Lal Kishori Lal & Ors. (1982) 1 SCC 525, wherein it was observed that the expression “in an appropriate case” appearing in Sub-Section (1) of Section 22 of the Act implies that a relief of possession has to be sought against the third person as he is not bound by the Contract to be enforced. The Hon’ble Apex Court further observed that the relief of possession can be granted to the Decree Holder where the property is agreed to be conveyed by virtue of an Agreement to Sell. The argument that the plaintiff must claim possession in a Suit for Specific Performance of a Contract in all cases was also negated as Section 22 of the Specific Relief Act, 1963 talks of relief of possession in appropriate cases.

73. Supreme Court in S. Sampoornam Vs. P.V. Kuppuswamy 2007 SCC OnLine Mad 365 reiterated the same principle and held that even in the absence of prayer for possession, once the suit for specific performance is decreed, the court has got every power to order delivery of possession as per the proviso to Section 22 (2) of the specific Relief Act.

74. The Hon’ble Supreme Court in Manickam Thandapani & Anr. vs. Vasantha 2022 Live Law (SC) 395 referred to the aforementioned judgements and emphasized that the phrase “in an appropriate case” stated in Sub-Section 1 of Section 22 of the Specific Relief Act, 1963 does not mandatorily require that possession has to be claimed and granted in every Suit for Specific Performance of Agreement to Sell. It is only where the plaintiff/third party acquires the title to the property alone in the Suit for Specific Performance and his claim for possession/partition is based on independent rights, then in such case, the delivery of possession cannot be granted to the Decree Holder merely on execution of Sale Deed which is in consonance with Section 55(1) of Transfer of Property Act,

1882. However, in cases where the Agreement to Sell itself envisages the handing over of the possession to the Decree Holder, then it may not be necessary for the Decree Holder to have specifically claimed possession over the property as provided in Section 22 (1) of the Specific Relief Act,

1963. It was thus concluded that though Section 22 (2) of the Act, which is in negative language, states that “no relief under clause (a) or clause (b) of Sub-Section (1) shall be granted by the court unless it has been specifically claimed”, but the proviso thereto takes out the mandatory nature from the substantive provision and allows the plaintiff to amend the plaint “at any stage of the proceeding”. The Hon’ble Apex Court explained that any “stage of proceeding” would include the proceedings in Suit, in appeal and also in execution. The proviso to Section 22(2) makes the provision directory with no penal consequences. Section 22(2) of the Act only contains the rule of prudence to ask for possession “in an appropriate case”. It cannot be said that it is a mandatory provision or that the relief of possession cannot be granted in a Decree for Specific Performance in the absence of there being a specific relief so granted.

75. It may be thus concluded that even though the relief for possession had not been granted in the Decree, but it is inherent in the Decree for Specific Performance of the Agreement to Sell. The decree holder is, therefore, entitled to the relief of possession.

76. It is thus concluded that there is no merit in the present application under Section 47 of CPC, 1908 filed by the applicants, Ms. Meera Rani Gupta and Ms. Nalini Gupta and the same is accordingly dismissed. EX.P. 282/2012& EX. APPLs.(OS) 302/2019, 3241/2022, 3542/2022, 3543/2022

77. List before the Roster Bench on 23rd February, 2023.

JUDGE FEBRUARY 02, 2023 S.Sharma/PA