Back
1986 Supreme(AP) 275
Andhra Pradesh High Court
Judges : B.P.JEEVAN REDDY, M.N.RAO
MOTHURAJU PUNIAH - Appellant
Versus
GORI KAPUDI ANANDAM - Respondent
C.R.P.No.5451/80
Decided On : 07-23-86
Advocates Appeared :
Mr. C.V. Kanyaka Prasad,Mr. Y.G. Krishnamurthy
Headnote:SPECIFIC RELIEF ACT, Secs. 22 and 28 (3) - Scope - Suit for specific performance of Contract of sale of land - Vendee put in possession on Part payment of consideration and vendor put back in possession as lessee - Relief in suit asked for being decree for specific performance on payment of balance consideration by Vendee or alternatively to order execution of sale through Court - Decree executing sale deed by Court not specifying lease to Vendor Application by Vendee to direct vendor to put in possession Dismissed - Sustainable.
Held : By virtue of sub-Section [3] of Section 28 it is open to a plaintiff purchaser, once he complies with the decree by depositing the balance of purchase money, if any, to request the Court for all further reliefs as he may be entitled to in the circumstances, including execution of a proper conveyance by the defendant or in his failure, by the Court, and also delivery of possession or partition and separate possession, as the case may be. In such a situation, the defendant will not be allowed to plead that in as much as the plaintiff has failed to ask for execution of a sale-deed by the defendant, or on his default by the Court, and also for delivery of possession in the suit, such a relief cannot be granted to him by virtue of sub-Sec. (2) of Sec. 22. The rule contained in Sec. 28 (3) should be understood as an extension of the rule contained in Section 22. Indeed, sub-Section (4) of Sec. 28 makes it obligatory upon the parties to ask for all the reliefs they are entitled to, in the suit/ proceeding itself, by barring a suit for the said purpose. A suit for specific performance does not come to an end and with the mere passing of the decree directing specific performance; it comes a an end only when all the appropriate reliefs to which the parties are entitled are worked out and granted Such a course also has the effect of avoiding the multiplicity of proceedings and should be encouraged.
In this case, not only the plaintiff stated in the plaint that he is in possession, but stated further that he had leased back the land to the defendant, that the defendant failed to pay the rent, and that he reserves his right to proceed against the defendant separately for realisation of Makhta and other reliefs. In the face of the said averments in the plaint, the plaintiff rightly did not and indeed could not have asked for the relief of possession in the suit. It he could not have asked for the said relief in the suit, it must follow that he cannot also ask for the same under sub-Sec. (3) of Section 28 after the passing of the decree.
( 1 ) 1. This Civil Revision Petition has been referred to Bench by muktadar, J. The learned Judge felt that the interplay and mutual operation of Sub-Section (3) of Section 28 and Section 22 of the SPECIFIC RELIEF ACT, 1963, 1963, being a matter of frequent occurrence, should be pronouced upon by a Bench. It is necessary to state the relevant facts briefly.
( 2 ) PLAINTIFF filed the suit for specific performance of a contract of sale with respect to a land. According to him, out of a total consideration of Rs. 3,200/- he paid a sum of 2,000/ on the date of the agreement and was put in possession of land. The balance was payable at the time of execution and registration of the sale deed. The Plaintiff leased back the said land to the defendant on the same day. The defendant failed to execute a lease-deed as per the agreement, nor did he pay the rent due. Accordingly the plaintiff asked for the following relief. " (A) decree for specific performance of the contract directing the defendant to come forward and execute a regular sale-deed may be granted. or in the event of his failure to do so, a sale-deed through this Hon ble court may be ordered. . . . ".
( 3 ) THE plaint contains the following recital which is relevant for the purpose of this revision petition ; "the plaintiff reserves the right of filing a separate suit for recovery of Makhta and other reliefs".
( 4 ) THE defendant denied the agreement of sale altogether. He denied having received any portion of the consideration, or delivery of possession of the land. According to him, the plaintiff played a fraud upon him and, instead of obtaining a mortgage, obtained an agreement of sale. He submitted that the document was intended only as a security for the loan obtained by him, and that he alone has been in possession of the land throughout. He also pleaded that he paid Rs. 1500/towards repayment of the loan and that only an amount of Rs. 500/ is due.
( 5 ) ON a consideration of the evidence adduced by both the parties, the learned District Munsif negatived the defendant s case and decreed the suit as prayed for. The decree merely directed the defendant to execute a registered sale-deed in terms of the agreement of sale, Ex. A-1, on the plaintiff depositing the balance of consideration within the prescribed period. Since there was no prayer in the plaint for delivery of possession following upon the execution of the sale-deed, the decree also did not provide for delivery of possession. Inasmuch as the defendant failed to execute a sale-deed in pursuance of the decree, the Court executed the sale-deed. The sale-deed recites that possession has already been delivered to the plaintiff. The saledeed does not refer to the leasing back of the land by the plaintiff to the defendant.
( 6 ) AFTER obtaining the sale-deed the plaintiff realized that he has only a sale-deed but no possession. Hs therefore filed I. A-No. 1929/19 79 purporting to be under section 28 of the SPECIFIC RELIEF ACT, 1963. In the affidavit filed in support of this application the petitioner (plaintiff) first referred to the execution of the sale-deed by the court in his favour, and then stated"as the balance of sale consideration was not paid prior to the suit, the relief of possession was not asked. Petitioner submitted in the suit that he asked the respondent to continue in the land as lessee. But respondent denied this. Yet he failed to deliver possession of the property till now. . . . . . ". He therefore requested the Court to pass an order directing the respondent-defendant to put the petitioner in possession of the property and on his failure to do so, to put him in possession through Court. The defendant oppossed the application. He submitted that the petitionerplaintiff had purposefully not asked for the relief of possession in the suit on the plea that possession was already delivered to him and that he had leased out the property to the respondent-defendant; that the respondent had
