Possession is inherent in suits for specific performance; a separate prayer for possession is not necessary under the Specific Relief Act.

ORDER :

S.Srimathy, J.

The present revision petition is filed by the defendant in the suit to set aside the order dated 15.04.2024 passed in E.P.No.2 of 2017 in O.S.No.45 of 1980 on the file of the District Munsif cum Judicial Court, Rameshwaram.

2. The suit was filed for specific performance. The plaintiff, the proposed purchaser and the defendant, owner of the property had entered into a sale agreement dated 14.08.1977. Since the defendant had not come forward to execute the sale deed, the plaintiff has issued suit notice, dated 24.07.1978. In spite of receipt of the notice, the defendant did not reply. After the said sale agreement, the 1st defendant had sold to the 2nd defendant. Hence, the 2nd defendant is arrayed as one of the parties and the said sale deed will not bind the plaintiff. Further, the 1st defendant at the time of enquiry, informed that the 2nd defendant had sold another portion to the 3rd defendant on 17.11.1981, hence, the 3rd defendant is also arrayed as one of the parties and the said sale will not bind the plaintiff. The defendant had filed a written statement denying the alleged sale contracts, dated 18.04.1971, 25.02.1973, 25.02.1973, 23.05.1977, 28.07.1977, 14.08.1977 and 17.10.1977 and stated that the defendant never entered into any sale agreement with the plaintiff. The plaintiff and his father had taken the property for lease and they had never paid the lease amount. Further, there was increase in the value of the property and also there was increase in the value of value agricultural produce like cereals etc. the plaintiff admitted that they could not pay the lease amount properly. The defendant's family had put up a thatched shed in the suit property and was in possession of the same. Without reading the contents in the paper, the defendant had affixed the signature then and there. Therefore, the contents are entirely denied and the defendant prayed to dismiss the suit.

3. After framing issues based on the pleadings and documents and after hearing the rival submissions, the Trial Court had dismissed the suit. Aggrieved over the same, the plaintiff preferred an appeal in A.S.No.118 of 1985. The Appellate Court has held that Ex.A1 and Ex.A8 had been proved by the PW1. If Ex.A1 and Ex.A2 are read with Ex.A3 and Ex.A4, an agreement with all characteristics to sell immovable property can be found and the rate was already agreed between the parties at Rs.250/- per cent and the subsequent increase in the rate is not a matter to be considered when the parties have agreed and fixed the rate for a specific extent. Therefore, the Appellate Court has held that the sale agreement is an enforceable and the plaintiff did not give up his rights by way of taking the sale deed under Ex.A6 and allowed the appeal. Aggrieved over the same, the defendant in the suit had preferred a second appeal in S.A.No.1044 of 1986 and the same was dismissed. Thereafter the plaintiff had filed E.P.No.18 of 2010 to execute the decree passed in O.S.No.45 of 1980 and the same was allowed vide order dated 17.04.2010. Thereafter, the sale deed was executed by the defendant in favour of the plaintiff and the suit had attained finality. Inspite of execution of sale deed, the defendant restrained the plaintiff from taking possession of the property. Thereafter, the plaintiff has preferred an execution petition in E.P.No.2 of 2017 and the same was allowed on 15.04.2024 directing the defendant to hand over possession on 29.04.2024. Aggrieved over the same, the present civil revision petition is filed.

4. The primary contention of the revision petitioner is that the suit was filed for the relief of specific performance but recovery of possession and mandatory injunction was not prayed for, hence, the same is hit by the proviso of Section 34 of SPECIFIC RELIEF ACT , 1963. When the law is clear that it is not permissible to claim the recovery of possession, hence the second execution petition filed for recovery of possession ought to be dismisse