Delhi High Court
Ajay Mangla vs Surinder Kumar & Ors. on 12 February, 2013
Author: A. K. Pathak
$~7/9
*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.
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
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
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
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
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
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
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
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
