The nature of a suit for specific performance and the inclusion of a prayer for possession does not change the character of the suit.

Krishnan, J.

1. This Civil Revision Petition arises from a suit brought by plaintiff to enforce specific performance of a contract to sell a shop by directing the defendant to deliver a proper sale-deed to him on his paying the price into Court and for recovery of possession of the property. The question that arises for decision is what is the proper value of this suit for purposes of jurisdiction. Section 8 of the Suits Valuation Act makes the value for Court fees and for jurisdiction the same in such suits. We have therefore to see under what provision or provisions of the Court Fees Act the suit has to be valued. The District Munsif held that it was one for recovery of possession and should be valued under Section 7, Clause V(e) of the Act and as that value was over Rs. 3,000, the pecuniary limit of his jurisdiction, he returned the plaint to be presented to the proper Court. On appeal the Subordinate Judge upheld that view and hence the revision to us by the plaintiff.

2. Plaintiff contends that the suit falls under Clause X(a) of Section 7 and not under Clause V at all. The defendant on the other hand argues that the suit falls under Clause V(e) and its value is either the aggregate of the values computed under Clauses V(e) and X(a) or at any rate is the value under Clause V(e). Clause X(a) provides that in a suit for specific performance of a contract of sale the Court-fee payable is "according to the amount of the consideration." Now the consideration stated in the document is "the sum total of the principal, interest, costs incurred and other miscellaneous expenses connected therewith." We called for a finding to ascertain how much these items totaled up to in cash and the finding is that it works out to Ks. 2,265. We accept that finding as one of fact : and it follows that if the suit is valued under Clause X(a) alone it is within the Munsifs jurisdiction.

3. It seems to me that the suit clearly falls within the description of a suit for specific performance under Clause X(a) and the addition of the prayer for possession makes no difference. The relief by way of giving possession arises from the relief granting the execution and delivery of the sale-deed, as without a registered sale-deed, title cannot be transferred under the Transfer of Property Act where the value is over Rs. 100; without the latter relief being granted, the former cannot: see Muhi-ud-din Ahmad Khan v. Majlis Rai (1818) 36 M.L.J. 89. Nevertheless both the rights, viz., the right to the sale-deed and the right to possession spring out of the same contract though one necessarily precedes the other. The delivery of possession is a part of the specific performance of a contract of sale unless the terms thereof show that the vendor was not under an obligation to deliver possession. The claim for delivery of possession is as much a part of specific performance as the claim for the payment of the price is, when the seller brings the suit for specific performance. In fact this Court has held in Bhashya Karlu v. Andalammal (1918) M.W.N. 896 that a suit for the purchase price by itself is a suit for specific performance. It is clear from Form 47, 1st Schedule, Appendix A of the Civil Procedure Code, that a prayer for possession is a proper prayer in a suit for specific performance without altering the character of the suit. It seems to me that this suit cannot be properly described as a suit for possession of property and brought under Clause V of the Court Fees Act simply because a prayer for possession is added, any more than, for example, a suit for redemption of a usufructuary mortgage, wherein also there will be a prayer for possession, can be so described and brought under that clause.

4. Now, as regards the authorities cited before us, the case in Nihal Singh v. Sewa Ram (1916) I.L.R. 38 All. 292, is a direct ruling on die point and is in favour of the view I am taking. On the other hand a ruling of the Calcutta Court in Madan Mohan Singh v. Gaja