Relief of refund in specific performance cases must be specifically claimed in the plaint, or it cannot be granted by the court.

JUDGMENT :

PARTH PRATEEM SAHU, J.

1. Appellant/plaintiff has filed this appeal questioning the legality and sustainability of the impugned judgment and decree dated 10.01.2012, passed in Civil Suit No.48-A/2011, whereby learned 2^nd Additional District Judge, Durg, District – Durg (C.G.) has partly allowed the suit filed by plaintiff/respondent No.1.

2. Facts relevant for disposal of this appeal are that plaintiff/respondent No.1 filed a civil suit for specific performance of contract with respect to the land bearing Kh.No.477/6 measuring area 0.072 hectares (18 dismil), situated at Village Kodiya, P.C. No.28, Rajendra Singh Mandal Village Anda, Tahsil and District Durg (C.G.) owned and possessed by deceased defendant No.1 Tulsiram pleading therein that on 14.06.2008, an oral agreement was entered into between the plaintiff and defendant No.1 for sale of the said land for a total consideration of Rs. 2,00,000/-. It is further pleaded in the plaint that part payments were made on different dates towards the agreed consideration, amounting to Rs. 1,96,500/-. On 27.10.2008, execution of the sale deed was objected by defendants No. 2 and 3, due to which the sale deed could not be executed. The plaintiff was advised to take appropriate legal steps in this regard. Despite having received Rs. 1,96,500/-, the defendants refused to execute the sale deed in favour of the plaintiff in respect of the land mentioned above. Consequently, the plaintiff has filed the present suit seeking specific performance of the contract.

3. Defendants filed their reply refuting the plaint allegation and it was pleaded that Tulsiram never entered into any oral or written contract with the plaintiff for sale of the suit land. Plaintiff has paid Rs.1,96,500/- through four cheques but it was not paid in respect of the disputed land. Defendant No.2 has no right to deal with the land owned and possessed by defendant No.1 or to receive any money in exchange for the transaction because he was not the owner of the suit land. It was specifically pleaded that Tulsiram had never made any deal with the plaintiff to sell the disputed land and prayed for dismissal of the suit.

4. Learned trial Court based on the pleadings made by respective parties formulated 6 issues for consideration. Parties led their evidence and after conclusion of trial upon appreciation of the documentary and oral evidence brought on record, learned trial Court partly allowed the suit filed by the plaintiff directing defendant No.1 to refund an amount of Rs. 1,96,500/- to the plaintiff, however, the claim for specific performance of the contract was dismissed by the impugned judgment and decree.

5. Learned counsel for appellant/plaintiff would submit that learned trial Court erred in passing judgment and decree of refund of Rs.1,96,500/- with 6% interest even after recording a finding that plaintiff failed to prove pleadings of agreement to sale between the parties. In support of his contention he referred to the paragraph No.14 of the impugned judgment. He also contended that relief of refund of amount of Rs.1,96,500/- is granted by learned trial Court in favour of plaintiff is in contravention of provisions U/s. 22 (2) of the Specific Relief Act, 1963 (In short ‘the Act of 1963’). He would submit that in the plaint, plaintiff has only sought relief of declaration that defendants is bound to execute the sale deed of the land bearing Kh. No.477/6, 0.070 Hectare 18 dismil) and further relief that if the sale deed is not executed by defendants then sale deed be executed through Court. No other relief has been claimed. Referring