A suit for specific performance of an agreement for sale of land is not a suit for land unless the agreement contains a clause for delivery of possession after execution.

1. This is an application for revocation of leave granted under clause 12 of the Letters Patent after, however, the defendants have filed their written statements and after two interlocutory application have been fought out between the parties.

2. For the purpose of deciding whether the plaint should be rejected outright by revocation of leave and whether the suit should be held to be a suit for land situate wholly outside the local limits of the Ordinary Original Civil Jurisdiction of this Court, which are the submission of the defendants, the plaint has to be accepted as it stands. The defendants have submitted that even on that basis, accepting the plaint as it is, the same would appear clearly to be a suit for land, and since the land is at Lake Road outside the local limits, the suit must forthwith fail and the leave already granted must be revoked.

3. The plaintiff on the other hand has submitted that the suit is not a suit for land and is in reality a suit in person for such personal relief's as grant of a decree of specific performance and grant of an order for personal injunction against transfer of property. The have sold that the prayer for declaration of voidness of the subsequent agreement entered into by and between the defendants in respect of the said same property is also a claim in the nature of claim for or in relation to land.

4. It appears from a whole reading of the plaint that the plaintiffs case today is that they are in possession and do not need to obtain a decree possession from the Court. Paragraph 12 of the plaint states specifically that they are in vacant possession of one portion of the premises and also goes on state that the plaintiff has spent huge amounts while negotiating with other tenants for obtaining vacant possession from them.

5. A part of the agreement of which specific performance is sought for by the plaintiffs is set out in paragraph 11 of the plaint and one clause of the said agreement is to the effect that the vendor shall make over possession of the said premises simultaneously with execution of the said presents. If this part of the agreement is read along with fact that the execution of the said agreement i.e. the said presents is not denied and further that no possession is claimed for by the plaintiff, the position which emerges is that the plaintiff in possession of the property and does not claim for the came over again in the suit.

6. Whether a suit for specific performance of an agreement for conveyance of land is a suit for land or not would depend upon the terms of the agreement itself and several other factors.

7. It is settled law that a decree for specific performance of an agreement for sale of land simpliciter is not a suit for land although the same would ultimately cause a transfer of title of the land. The case of Debendra vs. Southern Bank Limited, AIR 1960 Cal 626, is an authority for this proposition.

8. There is, however, now a binding decision of the Supreme Court to this effect that plaintiff might elect to treat his prayer for specific performance as containing a prayer for possession of the land in respect of which specific performance is sought. That case of Baboo Lall vs. Hazari Lall, AIR 1982 SC 818.

9. In case the agreement for which specific performance is sought contains a clause apart from an agreement for conveyance of title that the land itself would be handed over by the vendors to the vendees, then and in that event, the claim for specific performance of the whole agreement would include within it a claim for possession of land, thus converting it into a suit for land. A Division Bench judgment of this Court in the case of Debabrata Tarefdar, 87 CWN 54, is an authority for the said proposition.

10. Another recent Division Bench decision of this Court in the case of Brijmohan Lall Rathi, AIR 1992 Cal 67, has however clarified that in case a claim for specific performance is made in a suit, the same cannot automatically be regarded as a suit fo