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*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 310/2012 and CM Appl. No. 12620/2012
Decided on 12th February, 2013
AJAY MANGLA ..... Appellant
Through :Mr. Rajiv Aneja, Adv.
versus
SURINDER KUMAR & ORS. ..... Respondents
Through : Mr. Shrey Ashat, Adv. SI Madan Mohan, P.S.
Sarup
Nagar
AND
+ RFA 351/2012 and CM Appl. No. 14190/2012
SURINDER KUMAR ..... Appellant
Through : Mr. Shrey Ashat, Adv.
versus
USHA MALHOTRA & ORS ..... Respondents
Through : Mr. R.K. Jain, Adv.
SI Madan Mohan, P.S.
Swaroop Nagar
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J.(ORAL)
1. Both the above appeals arise from the impugned order dated 3rd May, 2012 passed by the Additional District Judge, Delhi, thus, are being disposed of together.
RFA 310/2012 Page 1 of 9
2. By the impugned order, plaint has been rejected. It has been held that suit has become infructuous on account of subsequent events. Hence, plaint is rejected.
3. Factual matrix is that Shri Surinder Kumar filed a suit for specific performance and permanent injunction against Smt. Usha Malhotra, Shri Naresh Kumar and Station House Officer, Police Station Sarup Nagar, Delhi. Shri Surinder Kumar alleged in the plaint that Smt. Usha Malhotra was recorded owner and in possession of the land admeasuring one bigha falling in Khasra No. 7/22, situated in the area of Village Libaspur, Delhi (for short hereinafter referred to as "suit land"). She entered into an Agreement to Sell on 20th November, 2006 with him and one Shri Tulsi Dass against valuable sale consideration of `3 lacs. In part performance, possession of the suit land was handed over to him. Smt. Usha Malhotra also executed a General Power of Attorney, Will, Affidavit, Receipt etc. in their favour on 20th November, 2006 itself. General Power of Attorney was duly registered with Sub Registrar, Delhi. Subsequently, he purchased share of Shri Tulsi Dass as well and became absolute owner of the entire land. Later RFA 310/2012 Page 2 of 9 on, intention of Smt. Usha Malhotra became malafide and she colluded with Shri Naresh Kumar in order to dispossess him. Shri Naresh Kumar started claiming himself to be owner of suit land on the basis of Agreement to Sell, Power of Attorney, Will, Receipt etc. allegedly executed by Smt. Usha Malhotra. On this premise, suit for specific performance and permanent injunction was filed. It was prayed that Smt. Usha Malhotra be directed to execute Sale Deed and get the same registered with Sub Registrar. It was further prayed that Smt. Usha Malhotra and Shri Naresh Kumar be restrained from encroaching upon/trespassing on the suit land. It was further prayed that Station House Officer, Police Station Sarup Nagar be directed to provide necessary police protection.
4. During pendency of the suit, on an application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 ("CPC", for short) Shri Surinder Kumar was permitted to amend the plaint wherein he alleged that the Station House Officer had filed a false status report dated 23rd August, 2008 stating therein that Shri Naresh Kumar was in possession of the suit land and since there was dispute about the ownership of the property, a report under Section 145 of RFA 310/2012 Page 3 of 9 Cr.P.C. had been sent to Special Executive Magistrate, which was sub-judice. It was alleged that Shri Naresh Kumar had illegally taken over possession of suit land in 2nd week of August, 2008 and the report filed by Station House Officer was false and fabricated. In the amended plaint, relief of possession was also added besides seeking specific performance of the agreement to sell dated 20 th November, 2006.
5. During the trial, Shri Ajay Mangla son of Shri Surinder Kumar filed an application under Order 22 Rule 10 CPC seeking his impleadment in place of his father Shri Surinder Kumar on the pretext that interest in the suit land had devolved on him since Smt. Usha Malhotra had sold the suit land to him, vide a registered Sale Deed dated 5th January, 2012 for a total sale consideration of `11,05,000/- (Rupees Eleven Lacs Five Thousand Only) executed through her attorneys, namely, Shri Surinder Kumar and Shri Tulsi Dass. Trial court has dismissed this application vide the impugned order and has rejected the plaint. Trial court has held that on transfer of the suit land in favour of Shri Ajay Mangla through a Sale Deed executed by Smt. Usha Malhotra through her attorneys RFA 310/2012 Page 4 of 9 suit for specific performance had been rendered infructuous.
6. I have heard learned counsel for the parties and considered the material on record. From the facts narrated above I am of the view that the order passed by the trial court does not suffer from any illegality and requires no interference. Shri Surinder Kumar had filed a suit for specific performance against Smt. Usha Malhotra and Shri Naresh Kumar. He had placed reliance on the Agreement to Sell dated 20th November, 2006 executed by Smt. Usha Malhotra in favour of him and Shri Tulsi Dass and he sought specific performance thereof. He had prayed for execution of a Sale Deed by Smt. Usha Malhotra through the mandate of court. Relief of possession was consequential to the relief of specific performance. Shri Surinder Kumar could have obtained the relief of possession only upon execution of the Sale Deed in his favour by Smt. Usha Malhotra and not otherwise. During pendency of the suit, suit land has been admittedly sold by Smt. Usha Malhotra to Shri Ajay Mangla, for `11,05,000/- (Rupees Eleven Lacs Five Thousand Only) vide a registered Sale Deed, thus, relief of specific performance in favour of Shri Surinder Kumar had become RFA 310/2012 Page 5 of 9 infructuous since said sale was duly accepted by Shri Surinder Kumar as he had confirmed the same for the reasons that he had executed the Sale Deed along with Shri Tulsi Dass in the capacity of attorney of Ms. Usha Malhotra. It is deemed that he had given up the claim of specific performance. By executing the Sale Deed as attorney of Ms. Usha Malhotra he gave up his rights, if any, in the suit land. If that is so, upon execution of Sale Deed by Smt. Usha Malhotra in favour of Shri Ajay Mangla through Shri Surinder Kumar and Shri Tulsi Dass the suit for specific performance was rendered infructuous as on the date of execution of Sale Deed, inasmuch as Shri Surinder Kumar lost his right to seek relief of specific performance as also the possession on the basis of alleged agreement dated 20th November, 2006. Thus, Shri Ajay Mangla, being purchaser of the suit land could not have stepped into the shoes of Shri Surinder Kumar and proceeded with the suit against Shri Naresh Kumar.
7. That apart, Shri Ajay Mangla has acquired rights in the suit land by virtue of Sale Deed from Ms. Usha Malhotra. Ownership rights in the suit land devolved upon him from Ms. Usha Malhotra RFA 310/2012 Page 6 of 9 and at best under Order 22 Rule 10 CPC he could have sought his substitution in place of Ms. Usha Malhotra and not against Shri Surender Kumar,
8. Shri Ajay Mangla claims ownership right on the suit land pursuant to the Sale Deed executed by Ms. Usha Malhotra through Surinder Kumar and Shri Tulsi Dass, thus, an independent cause of action has accrued in his favour to seek possession being owner of the suit land. As regards suit filed by Shri Surinder Kumar is concerned, same was rendered infructuous upon sale of the suit land by Smt. Usha Malhotra to Shri Ajay Mangla.
9. Learned counsel for the appellant has placed reliance on judgments titled Babu Lal vs. M/s. Hazari Lal Kishori Lal and Others, AIR 1982 Supreme Court 818, Hemchand vs. Karilal, AIR 1987 Rajasthan 117, Dhurandhar Prasad Singh vs. Jai Prakash University and Others, AIR 2001 Supreme Court 2552. I have perused the same and find the same to be in the context of different facts. In Dhurandhar Prasad Singh (supra) Supreme Court has held that if there has been devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or RFA 310/2012 Page 7 of 9 against persons upon whom such interest has devolved under order 22 Order 22 Rule 10 of the Code. In Hemchand (supra) Rajasthan High Court has held that ordinarily the relief for specific performance of a contract implies the relief for possession of the immoveable property also and in such a case the plaintiff need not even ask for the decree for possession, in case no third party has intervened. In Babu Lal (supra) Supreme Court has held that in a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale without specifically providing for delivery of possession, may give complete relief to the decree-holder. In order to satisfy the decree against him completely he is bound not only to execute the sale deed but also to put the property in possession of the decree holder. It was also held that where after the contract between the plaintiff and defendant the property passed in possession of a third person, a mere relief for specific performance of the contract of sale may not entitle the plaintiff to obtain possession as against the party in actual possession of the property. As against him, a decree for possession must be specifically claimed for such a person is not RFA 310/2012 Page 8 of 9 bound by the contract sought to be enforced. In a case where exclusive possession is with the contracting party, a decree for specific performance of the contract of sale, without specifically providing for delivery of possession, may give complete relief to the decree holder. In order to satisfy the decree against him completely, he is bound not only to execute the Sale Deed but also to put the property in possession of the decree holder. However, facts of this case are totally different. In this case Shri Ajay Mangla had derived title pursuant to the Sale Deed from Ms.Usha Malhotra, thus he could not have sought substitution in place of Shri Surinder Kumar(plaintiff) .The suit filed by Shri Surinder Kumar for specific performance and possession became infructuous immediately on sale of the suit land by Ms. Usha Malhotra which sale was duly acknowledged by Mr. Surinder Kumar.
13. For the foregoing reasons, both the appeals are dismissed. Miscellaneous applications are disposed of as infructuous.
A.K. PATHAK, J.
FEBRUARY 12, 2013/rb RFA 310/2012 Page 9 of 9