Mohd. Hanif S/o. Shaikh Ahmed Since Deceased Though Legal Representatives v. Mariam Begum W/o Abdul Rashid & Others

M.S. DESHPANDE, J.

This is an appeal by the legal representatives of the third defendant Mohd. Hanif from the appellate decree by which in addition to the decree for specific performance of contract of sale as against the defendants Nos. 1 and 2, a decree for possession also came to be passed against all the defendants.

2. The respondent No. 1 Mariam Begum brought the suit for specific performance of contract of sale of a house to her for Rs. 6500/- on food of an agreement dated July 2, 1973. An amount of Rs. 500/- was paid at the time of the agreement and the balance Rs. 6000/- was to be paid within 5 months and thereupon the sale-deed was to be executed by the defendants Nos. 1 and 2 the respondents Nos. 2 and 3 herein. Despite the notice sent on April 22, 1975 the respondents Nos. 2 and 3 did not execute the sale deed and she, therefore, sought specific performance against them, and from original defendant No. 3 Mohd. Hanif she sought possession alleging that the respondents Nos. 2 and 3 had placed him in possession. Mohd. Hanif denied that he was placed in possession by the respondents Nos. 2 and 3 and contended that the suit house along with other property belonged to two bothers Mohd. Shakur and Mohd. Sajan. The respondents Nos. 2 and 3 are the sons of Mohd. Shakur, while he is grandson of Mohd. Sajan. According to him, in a family partition the suit house was put on the share of Mohd. Sajan and be ultimately became entitled to that house and his branch has been in possession of the house for more than 50 years. The plea of respondents Nos. 2 and 3 was Mohd. Hanif took possession of the house after the execution of the Issar-pawati without any right and that they were unable to place the plaintiff-respondent No. 1, in possession.

3. The trial Court held that the respondents Nos. 2 and 3 were not the exclusive owners of the house though they had contracted to sell it to the respondent No. 1. It found that Mohd. Hanif was the real owner of the property and, therefore, dismissed the claim. In appeal the learned District Judge held that the respondents No. 2 and 3 were the exclusive owners of the house. Relying on the evidence of Sk. Ameer who was examined by the plaintiffs, he held that Mohd. Hanif had taken possession of the house by breaking open the lock on the Issar-pawati and that the respondent No. 1 was entitled to specific performance of the agreement of sale as against the respondents No. 2 and 3 and also to a decree for possession as against the present applicants.

4. The only question which arises for consideration in this second appeal is whether it was permissible for the lower Appellate Court to pass a decree for possession against the appellants. It may be notice that the respondent No. 1s allegation was that the respondents Nos. 2 and 3 had place Mohd. Hanif in possession after the execution of the Issar-pawati and he was, therefore, joined as a defendant. The case pleaded was clearly that Mohd. Hanif had been inducted into the property by the respondents No. 2 and 3. The only witness who spoke regarding the nature of the possession of Mohd. Hanif on behalf of the plaintiff was Mohd. Abdul Rasheed who stated that Mohd. Hanif all of a sudden illegally and after breaking open the lock entered into the house and occupied it since the date of the execution of the agreement of sale. In his cross-examination he stated that he took possession illegally during the night after the agreement of sale was executed. It was thus obvious that there was no evidence to show that Mohd. Hanif took possession of the property at the instance of the respondents Nos. 2 and 3 or that the latter had inducted him into possession and that Mohd. Hanif was claiming under respondents Nos. 2 and 3. No evidence was adduced on behalf of the appellants at the trial and the leaned trail Judge went by the averments made in the written statement. The learned District Judge did not notice the departure from the plaint when the respondent No. 1 adduced the evidence and it is obvious the Mohd. Hanif was not shown to have obtained possession from respondents Nos. 2 and 3 or that he was claiming under them.

5. It is in this context that Shri Siddiqui the learned Counsel for the appellants contended that it was not permissible for the respondents Nos. 2 and 3 in a suit for specific performance of a contract, to ask the Court to investigate into the title of the respondents Nos. 2 and 3 and the appellants, and since the scope of a suit for specific performance was limited, such an investigation could not be entered upon and no decree against a stranger to the contract of sale could be passed. On the other had Shri Dinesh Wakil the learned Counsel for the respondent No. 1 contended that in view of the provisions of sections 15 and 22 of the Specific Relief Act, the learned District Judge was right in passing the decree for possession against the appellants. Section 15 of the Specific Relief Act, 1963 provides as to who may obtain specific performance and that except as otherwise provided by Chapter II, the specific performance of a contract may be obtain by-(a) any party thereto. The provision, however, would only unable any party to the contract to obtain specific performance and does not. Provide for the persons against whom specific performance may be obtained. Section 22(1) runs as follows :---

"Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of contract for the transfer of immovable property may, in an appropriate case ask for ---

(a) possession, or partition and separate possession of the property, in addition to such performance; or

(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused."

Shri Vakil stressed the provisions of Clause (a) and argued that it is open to the party suing for specific performance to ask for possession or partition or separate possession of the property. It must be noted that section 22 also do not prescribe as to against whom such a relief may be claimed and it is necessary to look beyond sections 15 and 22 for finding out whether relief of possession could be claimed against a stranger. Under section 22 it would be open to the party suing for specific performance to ask for possession as against a party to the contact or it may ask the party bound by the contract to the partition and put him in separate possession of the property to which he would be entitled under the contract.

6. Shri Vakil referred to page 256 of the law of specific Relief by A.N. Gaur, 5th Edition, which after a survey of a few English cases summarises the position thus :

"Again a stranger to the contract may be made a defended to an action for specific performance where he is in possession of the subject-matter of the contract, or where he claims to be interested in purchase money under an agreement antecedent to the contract or where he is in actual possession of the property and might be affected by part of the relief claimed."

This, however cannot be construed as indicating that an investigation as to the title of the vendor and the stranger to the contract could be entered upon in a suit for specific performance. In (Prem Sukh Gulgulia v. Habib Ullah)1, A.I.R. 1945 Cal. 355 it was observed :

"A person who claims adversely to the vendor is, however, not necessary party. Where the property stands in the name of the person other than the vendor and the suit for specific performance is brought by the purchaser, that person may be joined as a defendant as a proper party on an allegation that he is the benamidar of the vendor but if he appears and contends that he is not the benamidar of the vendor the proper procedure would be to discharge him from the suit, leaving it to the plaintiff in the suit for specific performance to institute a suit against him after he had got the conveyance in execution of the decree for specific performance against his vendor. This is on the principle that the scope a suit for specific performance of a contract for sale ought not to be enlarged and the suit turned also into a title suit between one or either of the parties to the contract and a stranger to the contract".

7. In (Mst. Nagi v. Damodhar Jagobaji Tidke)2, A.I.R. 1948 Nagpur 181 Hidayatullah, J., (as he then was) after discussing certain English cases and following Prem Sukh v. Habib Ullah, A.I.R. 1945 Cal. 355 held :

"Since defendants 3 and 4 (appellant here) have set up an independent title the proper course for the learned trial Judge was to order that they be discharged. The plaintiffs after perfecting their title by obtaining specific performance against the executants of the agreement would be in a position to bring a fresh suit against anybody who stood in the way of obtaining possession. At the present time it is not possible in this suit to investigate the title which defendants 3 and 4 are setting up. Such a cause of action cannot be joined in a suit for specific performance of contract."

This was followed in (Kshetra Mohan Nath Sarma v. Mohamad Sabir Bepari)3, A.I.R. 1964 Tripura 16.

8. In (Shivshankrappa Mahadevappa v. Shivappa Parappa)4, A.I.R. 1943 Bom. 27 [LQ/BomHC/1942/33] . The question before the Court was not in the form in which it had been raised there. The observations there came to be made in the peculiar circumstances of that case as the agreement recited that the vendor had agreed to transfer his interest and was in a position to convey the entire survey numbers to the plaintiff. There was a previous litigation between the vendor and certain strangers to the contract and in that litigation those strangers had been ordered to deliver possession of the property to the vendor who was the 1st defendant and his co-sharer the 2nd defendant. It was in these circumstances that reference came to be made to the provision of section 27, Clause (c) of the Specific Relief Act, 1877 which corresponds to section 19(c) of the Specific Relief Act, (Act No. 47 of 1963) which runs as follows :-

"19. Expect as otherwise provided by this Chapter, specific performance of a contract may be enforced against :---

(a) either party thereto;

(b) any other person claiming under him by a title arising subsequently to the contract expect a transferee for value who had paid his money in good faith and without notice of the original contract :

(c) any person claiming under a title which, though prior to the contract, and known to the plaintiff, might have been displaced by the defendant."

The other clauses are not material for the purpose of this appeal. The learned Counsel for the respondent No. 1 urged that in view of Clause (c) Mohd. Hanif could have been impleaded as party to the suit.

9. In (Bhagwan Bhau Indap v. Krishanji Ganoji Indap)5, 22 Bom.L.R. 997, the 2nd illustration to section 27(c) of the Specific Relief Act was construed as covering the case of one joint tenant agreeing to sell his undivided moiety, and then dying, for it states that his purchaser could bring a suit for specific performance against the survivor, and unless the co-parceners in a joint Hindu Family are placed in a different category to joint tenants, it will have to be held that the illustration was binding. Pollock and Mulla in their Specific Relief Act, 9th edition at page 866 observes as follows :

"Section 19 is a counterpart of section 15, enumerating classes of possible defendants to a specific performance suit who were not original parties to the contract, as that section enumerates classes of possible plaintiffs. The rules here given for convenience exhibit no common ground of principle and title, if any, of practice belonging to actions for specific performance more than to other forms of proceedings. Clause (c) is so worded as to be barely intelligible without the illustrations. The word "Defendant" at the end stands, in point of sense, for some such words as original contracting party from whom that title is derived. The rule is consequence of the equitable doctrine which regards a purchaser as acquiring, as soon as the contract is complete, the right of an owner against the vendor and all persons not being purchasers for value without notice of the contract, and not claiming under an independent title adverse to vendors. English cases are mostly of little use for illustration; the principle is assumed and the discussion turns on some complication introduced by special circumstances."

The phrase, therefore, "under a title which, might have been displaced by the defendant" would have to be understood as a title of the stranger defeasible at the instance of the vendor and would not encompass the class of cases where strangers set up a title adverse to the property independently and not under the vendor. The decision in Shivshankarappa v. Shivappa, A.I.R. 1943 Bom. 27, [LQ/BomHC/1942/33] illustrates this position and was nothing more than application of this principle.

10. The learned Counsel for the respondent No. 1 relied on the observations in (Bai Devkabai v. Shah Shamji Mulji)6, A.I.R. 1971 Guj. 256 [LQ/GujHC/1970/81] for the proposition that the general rule is that persons other than the parties to the contract, i.e. strangers, are not necessary parties and specific performance cannot be claimed against such persons, but the law recognizes exception to it where impleading of strangers will avoid multiplicity of proceedings and where interest of persons actually in possession of the property might be affected. The learned Judge purported to follow Shivshankarappa v. Shivappa, A.I.R. 1943 Bom. 27 [LQ/BomHC/1942/33] and to distinguish Mst. Nagi v. Damodhar, 1948 Nagpur 181 (supra). In the former, however, the question did not arise in the manner it arises here and that case is clearly distinguishable as indicated above. A Full Bench of the Madhya Pradesh High Court in (Panne Khushali v. Jeewanlal Mathoo Khatik)7, A.I.R 1976 M.P. 148 approved the proposition laid down in A.I.R. 1948 Nag. 181 (supra) and held that strangers to the contract making a claim adverse to the title of vendor-defendant contending that they are the co-owners of the contracted property are neither necessary nor proper party and, therefore, not entitled to be joined as parties to the suit. In Panne Khushali v. Jeewanlal Mathoo Khatik, A.I.R. 1976 M.P. 148 and (Raj K. Mehra v. M/s.Anjali Bhaduri)8, A.I.R. 1981 Delhi 237 the matter was being considered at the stage where the strangers applied to the joined as parties though they were not parties to the contract and claimed title adverse to the vendor, but the principle regarding the scope of sections 15 and 19 is clearly discernible.

11. The learned Counsel for the respondent No. 1 urged that a narrow view of section 19(c) of the Specific Relief Act, 1963 is likely to lead to multiplicity of suits. However, if there is a statutory restriction to the scope of the suit having regard to the provisions of sections 15 and 19 of the Specific Relief Act, 1963, considerations regarding the likelihood of multiplicity of proceedings cannot be brought in and would be extraneous to defining the scope of such a suit. In view of all these factors, I agree with respect with the view taken in Mst. Nagi Devi v. Damodhar, A.I.R. 1948 Nagpur 181 that the scope of a suit for specific performance of an agreement for sale of land coupled with a prayer for possession cannot be enlarged and the suit turned also into a title suit unless it comes under Clause (c) of section 19, Specific Relief Act, 1963, as illustrated in Bhagwan v. Krishnaji, 22 Bom.L.R. 997. The plaintiffs after perfecting their title by obtaining specific performance against the executants of the agreement would be in a position to bring a fresh suit against anybody who stood in the way of obtaining possession.

12. In this view of the matter, the appeal will have to be allowed. The decree passed by the lower Appellate Court is modified in as much as there will be no direction in terms of Clause (4) of the operative portion of the decree regarding the recovery of possession of the property from the appellants and the plaintiff-respondent No. 1 would be free to purse her remedy by way of a separate suit. In the circumstances of the case, however, there will be no order as to costs of this appeal.