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Civil Procedure Code (V of 1908), O. II, r. 2

‑ Suit for specific performance of agreement to sell ‑ Subsequent suit, on basis of same agreement, for possession‑Second suit whether and when barred under O. II, r. 2.

Where a person sues another for specific performance of an agreement to sell and subsequently on the basis of the same agreement sues for possession, the second suit would be barred by Order II, rule 2, C. P. C. But if the subsequent suit is based on cause of action flowing from the conveyance obtained in pursuance of the decree in the first suit it will not be barred by Order II, rule 2, C. P. C. as the cause of action for this second suit would be quite distinct.

Where, therefore, in the sale‑deed there was absence of express agreement to transfer possession independently of the registered conveyance and the purchaser had no right to the possession of the property until the conveyance was completed by the payment of the balance of purchase price and registration of the conveyance deed, it was held that the second suit for possession brought by the purchaser after he had obtained a decree for specific performance of agreement to sell in a previously instituted suit, was not barred under Order II, rule 2, C. P. C.

I L R 38 Mad. 698 ; Arjun Singh v. Sahu Maharaj Narain A I R 1950 All. 415 ; Krishanaji Babaji Haval v. Rangappa Murigappa Wanji B L R (27) Bom. 42 and Nathu Valad Pandu v. Budhu Valad Bhika I L R 18 Bom. 537 ref.

A. H. Pirzada for Appellants.

Percy Ramchandnani for Respondent No. 1.

A. H. Memon for Respondent No. 2.

Fateh M. Sandeela for Respondent No. 3.

Date of hearing : 20th May 1963.

JUDGMENT

This is a defendants appeal in a suit for declaration, posses sion and mesne profits. The facts giving rise to the appeal are these.

Haji Muhammad Usman defendant‑respondent entered into an agreement with the plaintiffs‑respondents to sell the entire survey No. 655/19‑18 in Deh Babarloi, Taluka Khairpur for Rs. 3,000. Out of this amount Haji Muhammad Osman received Rs. 100 as earnest money, and the balance was to be paid at the time of the registration. The sale‑deed was executed on the 23rd of December 1952. On the same day, however, the defen dants‑appellants persuaded Haji Muhammad Osman to sell the land in question to them for Rs. 4,000. Haji Muhammad Usman agreed to sell in favour of the defendants Hussain Bux and Ghulam Abbas 0‑8‑0 annas share for Rs. 2,000 and the rest of the Rs. 0‑8‑0 annas share in favour of Hussain Bux and Haji for Rs. 2,000. The two sale‑deeds in favour of the appellants were executed and registered on the 23rd of December 1952.

2. On the 24th December 1952, the plaintiffs made an application to the Sub‑Registrar, Khairpur for registration of the sale‑deed executed by Haji Osman. The Sub‑Registrar issued notice to Haji Muhammad Osman to appear before him on the 18th of January 1953. In the meantime, that is, on the 24th of December 1952, the respondents filed a suit, No. 102 of 1952, before the Sub‑Judge Khairpur for registration of the sale‑deed executed by Haji Muhammad Osman. The plaintiffs‑respondents also prayed for the issue of an injunction against the appellants to restrain them from interfering with their possession. The Court issued an ad interim injunction as prayed for against the appellants and the defendant‑respondent Haji Muhammad Osman. It would appear from the record of this case that notice of the injunction application was served on Hussain only. The suit, however, was compromised between the plaintiffs‑respondents and Haji Muhammad Osman. The compromise was to the effect that Haji Muhammad Osman would have the sale‑deed registered in favour of the plaintiffs‑respondents The compromise was entered into on the 18th of January 1953, and on the same day the Sub‑Registrar registered the sale‑deed in favour of the plaintiffs‑respondents. The plaintiffs‑respondents dropped the other defendants in Suit No. 102 of 1952.

3. It is stated in para. 10 of the plaint of the suit giving rise to the appeal that on the 24th May 1953, defendants Hussain and Ghulam Abbas and Haji in collusion with Haji Muhammad Osman dispossessed the plaintiffs from the property purchased by them from Haji Muhammad Osman. The cause of action, as given in para. 12 of the plaint, is the dispossession of the plaintiffs‑respondents on the 23rd May 1953.

4. On the facts stated above, the respondents prayed that the two sale‑deeds executed by Haji Muhammad Osman in favour of the appellants be declared to be void and ineffective as against the plaintiffs‑respondents. They also prayed for possession and mesne profits.

5. The defendant Haji Muhammad Osman stated in his written statement that he had agreed to sell the land to the plaintiffs for Rs. 3,000 and had taken Rs. 100 as earnest money, but as the plaintiffs‑respondents did not want to pay the balance of the money immediately, he, being in need of money, executed the impugned sale‑deed in favour of the present defendants appellants.

6. The other defendants stated in their written statement that they were bona fide purchasers without any notice of the transaction between the plaintiffs and Haji Muhammad Osman. They denied that the plaintiffs were ever in possession of the land in suit. They claimed to be in possession and enjoyment of the land in dispute.

7. The contesting defendants being no party to the com promise between the plaintiffs‑respondents and Haji Muhammad Osman, the same was not binding upon them.

8. The pleadings between the parties gave rise to the following issues :‑

(1) Is the sale of the suit land in favour of plaintiff by defendant No. 1 cancelled

(2) Are the contents of para. 7 of the written statement of defendant No. 1 correct

(3) Are the contents of para. 9 of the plaint correct If so, what is the effect

(4) Was plaintiff dispossessed from the suit land by defendants 2 to 4

(5) Is the sale‑deed executed by defendant No. 1 in favour of defendants 2 to 4 in respect of suit land invalid and unenforceable If so, what is the effect

(6) Is the suit not properly instituted

The learned First Class Sub‑Judge on Issue No. 1 came to the conclusion that the plaintiffs were willing to pay the balance of the sale consideration and therefore the sale‑deed cannot .be said to have been cancelled on the ground that the plaintiffs were not willing to pay the balance of the sale consideration. On issue No. 2 the yearned Sub‑Judge came to the conclusion that the defendant Muhammad Usman had not signed the compromise application in Suit No. 102 of 1952 under misrepresentation of facts. On Issue No. 3 the finding was that the contents of para. 9 were not by the defendants. The learned Sub‑Judge on Issue No. 4 came to the conclusion that the plaintiffs were never put in possession of the land in question and therefore the question of their dispossession did not arise. The learned Judge held on Issue No. 5 that the sale‑deed in favour of defendants 2 to 4 was invalid. The Issues 6 and 7 were not pressed before the learned Sub‑Judge and therefore they should be deemed to have been decided against the defendants. On additional Issue No. 1 the learned Sub‑Judge held that the court‑fee paid was sufficient. On Issue No. 2 the learned Judge held that in view of the finding that the sale‑deeds in favour of defendants 2 to 4 were invalid no further question arose. On Issue No. 3 the decision was that the giving up of defendants 2 to 4 in Suit No. 102 of 1952 had no effect upon the present suit. The learned Judge decreed the suit for possession and held that the sale‑deeds in favour of defendants 2 to 4 were null and void. He also decreed the mesne profits as against defendants 2 to 4 from 24th December 1952, till the date of delivery of possession.

9. On appeal before the learned District Judge it would appear from the following order that only two points were urged before him. The relevant portion of the judgment runs as under :‑

"By consent the following points for determination were drawn

(1) Is the sale of suit land in favour of the respondents Nos. 1 and 2 cancelled

(2) Is the sale‑deed executed by respondent No. 1 in favour of appellants in respect of suit land invalid and unenforce able

The learned Judge on point No. 1 held that the sale deed in favour of the respondents 1 and 2 was not cancelled and on point No. 2 he came to the conclusion that the sale in favour of appellants was not valid.

In the result the learned District Judge dismissed the appeal.

10. In second appeal the only point urged by Mr. Abdul Hafeez Pirzada before me is that the suit for possession by the plaintiffs was barred by provision of Order II, rule 2, C. P. C. In order to appreciate the contention of the learned Advocate for the appellant it would be useful to reproduce sub‑rules 1 and 2 of Order 11 of the Civil Procedure Code. They run as under‑

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action ; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Where a plaintiff omits to sue in respect of, er inten tionally relinquishes, any portion of his claim, the shall not afterwards sue in respect of the portion so omitted or relin quished.

The contention of Mr. Pirzada was that on the finding of the Courts below the plaintiffs were not in possession of the property in dispute and therefore they should have prayed for possession in the earlier Suit No. 102 of 1952.

11. There is not much force in the contention of the learned Advocate for the appellants. In order to deal with the contention of the learned Advocate it would be necessary to state briefly the reliefs asked for in Suit No. 102 of 1952 and also to state the finding of the Courts below in respect of the possession of the plaintiffs of the disputed property. The plaintiffs claimed in Suit No. 102 of 1952 for the following reliefs

(1) For ordering the defendant No. 1 (vendor) to get the sale‑deed registered in favour of the plaintiffs.

(2) For perpetual injunction against the defendant restraining him from interfering in the possession of the disputed land.

12. The Courts below came to the conclusion that the plaintiffs were never put in possession of the property in question. This finding has not been challenged before me.

13. The finding of the Courts below is very clear and which has not been challenged that the plaintiffs were never put in possession of the property in question by the vendor. The question is, whether the plaintiffs were bound to ask for the relief of possession when they filed the suit for the registration of the sale‑deed executed by the vendor. I am of the view that the plaintiffs were not bound to ask for possession in Suit No. 102 of 1952. That suit was essentially for registration of the sale deed executed by the vendor in favour of the plaintiffs. In this connection what is important to decide is whether the plaintiffs had any vested right to the possession of the property. Mr. Pirzada contended that the mere execution of the sale‑deed by the vendor in favour of the plaintiffs was sufficient to give them right to claim possession. On the other hand, it has been contended by Mr. Percy Dingomal that the mere execution of the sale‑deed by the vendor without its registration, the value of the property being over Rs. 100.00, will not give any right to the vendees to possession of the property. In this connection reference may be made to a Division Bench ruling by Mr. Justice Sankaran Nair and Mr. Justice Tyabji I L R 38 Mad. 698. In that case the plaintiff had obtained in a previous suit a decree against the defendant for specific performance of an agreement to sell certain immovable property to the plaintiff and had got a sale‑deed executed in his favour in execution of the decree. The plaintiff instituted the suit giving rise to the appeal before their Lordships for recovery of possession of the lands conveyed through the sale‑deed. In that case it was contended that the suit was barred by Order II, rule 2, of the Civil Procedure Code as the plaintiff should have prayed for possession in the suit for specific performance of the agreement. It was held in that case that the plaintiff at the time when he brought the suit for specific performance had no right to possession of lands ;ought to be conveyed through the agreement. In this connection it would be useful to reproduce a passage from the judgment of Tyabji, J. It runs as under

"It seems to me that the effect of section 55 (1) (f ) of the Transfer of Property Act, when read with section 54 of the same Act, and with the Registration Act is that in the absence of any express agreement to transfer possession independently of the the registered conveyance, the purchaser has no right to the possession of the property until the conveyance is completed."

In this connection Mr. Pirzada contended, relying upon what is reproduced above, that there was an express agreement to transfer possession independently of the registered conveyance. He relied on the following sentence in the sale‑deed :‑

"I have delivered possession to the vendees."

This sentence has to be read in the context in which it occurs. It would be useful to reproduce the whole of the paragraph in which it occurs. It runs as under :‑

"I the above executant have sold out the entire above mentioned survey number admeasuring 9‑18 acres including all rights and interests, sources of water supply, drains streamlets, trees etc. for Rs. 3,000.00, (in words rupees three thousand only) to Dur Muhammad Khan son of Muhammad Ashraf Khan Jatoi As. 0‑12‑0 and to Habibullah son of Shehan Khan Jatoi resident of own village Taluka Khairpur, As. 0‑4‑0. 1 have delivered possession to the vendees."

It would appear that the delivery of possession was to follow the payment of Rs. 3,000.00. It was not contemplated that the vendor would deliver the possession without the receipt of the money. Moreover, it would appear from the finding of the Courts below that the plaintiffs were never put in possession of the disputed land. The question, therefore, will be whether the plaintiffs were entitled to get the possession without registration of the sale‑deed. I respectfully agree with the observation of the learned Judges in the case of Krishnammal and another v. M. Soundararaja Aiyar that the plaintiffs without the registration of the sale‑deed had no right to the possession of the property.

14. It would appear that the question for possession to the plaintiffs would only arise on the registration of the sale‑deed. In this view of the matter Order II, rule 2 would have no appli cation. In this connection reference may be made to the case of Arjun Singh v. Sahu Maharaj Narain (A I R 1950 All. 415). It was held in that case that where a person sues another for specific performance of an agreement to sell, and subsequently on the basis of the same agreement, sues for possession, the second suit would be barred by Order It, rule 2, but if the subsequent suit is based on the cause of action flowing from the conveyance obtained in pursuance of the decree in the first suit, it will not be barred by O. II, rule 2, as the cause of action for the second suit would be quite distinct.

15. While considering the question whether Order II, rule 2 had any application in the circumstances of the present case it would be helpful to consider the case of Kirshanaji Baboil Hava1 v. Sangappa Murigappa Wangi (B L R 27 Bom. 42). In that case the plaintiff, who had a prior agreement for sale in his favour, sued his vendor as well as the subsequent purchaser for specific perfor mance of his agreement, for damages for breach of contract, and for possession of the property. The Court held that since the subsequent purchaser took notice of the prior agreement for sale, he was bound to execute conveyance in plaintiff's favour on receipt of his consideration money. The question of possession was not gone into. The plaintiff obtained after the decree, possession of a portion of the property. The remain ing portion being in possession of the subsequent purchaser, the plaintiff filed a second suit to recover possession. The sub sequent purchaser resisted the suit on the ground that it was barred by res judicata. It was held in that case that the bar of res judicata did not apply for though a claim for possession might be made, it was not obligatory upon the plaintiff to make a claim for possession in a suit for specific performance.

16. The facts in the case of Nathu valad Pandu v. Budhu valad Bhika (I L R 18 Bom. 537) are somewhat similar to the facts of the present case. In that case the plaintiff claimed specific perfor mance of a contract of sale and sued the defendant to compel him to execute a deed of sale, alleging that he had paid the purchase money to the defendant and had obtained possession, but was subsequently dispossessed. The plaintiff had claimed the value of standing crop or damages for the same. The Court found that the plaintiff had paid the purchase money, but bad not got possession and ordered the defendant to execute a deed of sale. On failure of the defendant to do so, the Court executed a deed of sale in plaintiff's favour. The plaintiff there after brought the suit giving rise to the appeal before their Lordships to recover possession on the strength of the deed of sale. The defendant pleaded that the suit was barred by the principle of res judicata. It was held in that case that the suit was not barred by the principle of res judicata because the alleged cause of action was not the breach of the contract but a new and distinct one arising from the deed of sale which the defendants had contracted to pass.

17. For the reasons given above, I have come to the con clusion that the principles of Order II, rule 2 do not apply to the circumstances of the present case as the plaintiff had a distinct cause of action on the registration of the sale‑deed.

18. There is only one point though not urged but it requires consideration, namely, whether the plaintiffs are entitled to mesne profits. The admitted position appears to be that the plaintiffs have paid only Rs. 100 out of Rs. 3,000 towards the sale consideration of the land in dispute. They are no doubt willing to pay the balance of the sale consideration, but they have not deposited the same in Court. While on the one band, the defendants who are in possession of the disputed property have been enjoying the usufruct of the property, the plaintiffs have also been enjoying the benefit or the interest of Rs. 2,900, the balance of the sale consideration. In these circumstances the question is whether it would be equitable to grant mesne profits to the plaintiffs. I would hold that the plaintiffs would be entitled to the mesne profits only from the date that they deposit the balance of the sale consideration, namely Rs. 2,t 00 in Court. The learned Sub‑Judge, after the amount is deposited, to hold an enquiry and pay the same to the defendant or defendants who are entitled to receive the same. I would like to make it clear that this modification in the decree of the Courts below will not have the effect of staying the execution of the decree in respect of the recovery of possession by the plaintiffs. With this modification in respect of the mesne profits the appeal is dismissed, but in the circumstances of the case, I would make no order as to costs of the appeal.

K. B. A.

Appeal dismissed

Decree modified.

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