Punjab-Haryana High Court
Vijay Kumar Dhingra And Ors vs S.V Babbar And Ors on 23 September, 2024
Neutral Citation No:=2024:PHHC:125937
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ESA-221-2018 (O&M)
Reserved on: September 13, 2024
Date of Decision: September 23, 2024
Vijay Kumar Dhingra and others
... Appellants
Versus
Sh. S.V. Babber and others
...Respondents
CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA
Present:- Mr. Ashish Aggarwal, Sr. Advocate with
Ms. Aashna Aggarwal, Advocate for the appellants.
Respondent No.1 - Shri S.V. Babber in person.
Mr. Vaneet Soni, Advocate for respondent No.2.
DEEPAK GUPTA, J.
By way of this appeal, the appellants have given challenge to
the order dated 25.05.2018 passed by the Executing Court of learned Civil
Judge (Sr. Divn.), Faridabad, dismissing third party objections of the
appellants & others; and the order dated 27.06.2018 passed by learned
Addl. District Judge, Faridabad, upholding the said order dated 25.05.2018.
2. Fact of the case in brief may be noted as under:-
2.1 Shri S.V. Babber (respondent No.1 herein) purchased a plot
No. AM-37 (New N: C-3649 situated in Green Fields Colony, Faridabad
from a colonizer - Urban Improvement Company Pvt. Ltd. (respondent No.2
herein) on 25.02.1988 i.e. plot. Said allotment was cancelled illegally by
respondent No.2-Urban Improvement Company Pvt. Ltd., which further
allotted the plot in favour of Amitabh Sinha (respondent No.3 herein).
2.2 Respondent No.1-S.V. Babber filed civil suit for declaration,
injunction and specific performance on 13.09.2005 challenging the
cancellation of plot against respondent N: 2 before the Court of learned
1 of 14
Neutral Citation No:=2024:PHHC:125937
ESA-221-2018 2024:PHHC: 125937
Civil Judge (Sr. Divn.), Faridabad. As it was brought to the notice by
respondent No.2 that it had already allotted the plot in favour of
respondent No.3-Amitabh Sinha on 5.8.2004, so, said respondent No.3 was
impleaded as a party - defendant.
2.3 During pendency of the suit, an application was moved to
implead Rajeev Juneja & Puja Juneja as party to the suit, inasmuch as
Amitabh Sinha had further sold the disputed plot to them on 7.11.2005,
but that application was dismissed by the Court vide order 16.12.2013
(Annexure R1/1) by observing that the alleged sale deed in their favour
having been executed during pendency of the suit, was subject to the
principles of lis pendence and therefore, their impleadment was not
necessary.
2.4 The suit filed by respondent No.1 was initially dismissed by
the trial Court on 29.05.2014, but the appeal preferred by him was allowed
by the First Appellate Court of learned Addl. District Judge, Faridabad on
17.08.2016. The cancellation of allotment in favour of Sh.S.V. Babber-
respondent No.1 was held to be illegal and he was declared to be lawful
allottee/owner of the plot in question. Allotment in favour of respondent
No.3-Amitabh Sinha was held to be null, illegal and void having no effect
on the rights of respondent No.1.
2.5 The Regular Second Appeal No.4921 of 2016 preferred by the
colonizer-respondent No.2-Urban Improvement Company Pvt. Ltd. was
dismissed by this High Court on 06.02.2017. Even the Special Leave to
Appeal (C] N: 15114-15115/2017 preferred by the said colonizer was
dismissed by Hon'ble Supreme Court on 03.07.2017.
2.6 Thereafter, respondent No.1 (now decree-holder) filed
Execution Petition No.76 of 2017 [CNR N: HRFB02-000075-2017] against
the two judgment debtors (respondent N: 2 & 3 herein) in which one
Naman Gupta, the alleged General Power of Attorney Holder of Rajeev
Juneja & Puja Juneja by virtue of GPA dated 2.9.2015, filed an application
2 of 14
Neutral Citation No:=2024:PHHC:125937
ESA-221-2018 2024:PHHC: 125937
under Order 1 Rule 10 CPC seeking his impleadment. That application was
dismissed vide order dated 20.07.2017 (Annexure R-1/2). Said Naman
Gupta, GPA holder of Rajeev Juneja & Puja Juneja had further executed
Special Power of Attorney during 2016-17 qua 09 flats constructed on the
suit property in favour of 08 persons, who include the appellants,
alongwith the possession letters.
2.7 The appellants moved an application under Order 1 Rule 10
CPC on 20.07.2017 seeking their impleadment in the execution, but the
same was dismissed vide order dated 27.02.2018 (Annexure R-1/3). The
appellants then filed objections under Order 21 Rules 97, 98, 99, 100 and
101 CPC, alleging themselves to be bonafide purchasers for valuable
consideration. These objections were dismissed by the Executing Court by
way of impugned order dated 25.05.2018 (Ex.R-1/4) and the appeal
preferred against this order has been dismissed by way of the impugned
order dated 27.11.2018 (Annexure R-1/5) by learned Addl. District Judge,
Faridabad.
3. Assailing the impugned orders, contention raised by learned
counsel for the appellants before this Court is that the appellants are the
bona fide purchaser of the property in dispute, who were not party to the
lis either before the Civil Court or before the Executing Court and that they
have invested their hard earned money in purchasing the flats built on the
property in dispute. It is contended further that by way of decree, only the
allotment in favour of respondent No.1-S.V. Babber was upheld and that
no relief of delivery of possession was granted in his favour and therefore,
the objections have been wrongly dismissed.
4. On the other hand, the contention raised by respondent
No.1-Sh.S.V. Babber, who is contesting this appeal in person, is that the
relief of possession is inherent in a decree for specific performance and
therefore, the objections have been rightly dismissed.
3 of 14
Neutral Citation No:=2024:PHHC:125937
ESA-221-2018 2024:PHHC: 125937
5. This Court has considered submissions of both the sides and
has appraised the record carefully.
6.1 Ironically, both the contesting sides, in order to support their
respective stands, have relied upon Manickam @ Thandapani and
another Vs. Vasantha, 2022 LiveLaw (SC) 395.
6.2 In that case, a decree for specific performance, though initially
declined by the trial Court was ultimately decreed by the High Court vide
judgment dated 23.11.2001. The appellants were given time for depositing
the balance sale consideration. The said decree was upheld upto the
Supreme Court. After depositing the balance sale consideration, the sale
deed was got executed by Principal Sub Judge, Pondicherry.
6.3 Thereafter, Execution Petition was filed to direct the
respondent-judgment debtor to put the decree holders in possession of
the property conveyed. This application was resisted on the ground that
the petition had been filed under Order 21 Rule 35(3) of CPC, which deals
with the delivery of possession of any building but does not include the
vacant site and that application was required to be filed under Order 21
Rule 35(4) CPC. The plea was raised that as per decree, the property in
dispute was a vacant plot. Plea was raised that as per the decree holders,
the plot was not a vacant plot and had a pacca brick built double storey
house property.
6.4 The application of the decree holder for delivery of possession
was allowed by the Executing Court by observing that decree holders had
already obtained a decree for specific performance and that sale deed had
also been executed in their favour and as per the sale deed and the
decree, the decree holders are entitled for the relief of delivery of
possession and so, respondent was liable to hand over the possession of
the property to the petitioners/decree holders as per the decree. Appeal
against this order was dismissed. However, High Court allowed the petition
filed by respondent under Article 227 of the Constitution, which was
assailed before the Supreme Court.
4 of 14
Neutral Citation No:=2024:PHHC:125937
ESA-221-2018 2024:PHHC: 125937
6.5 Hon'ble Supreme Court held that the High Court had
completely misdirected itself in accepting the petition under Article 227 of
the Constitution of India and by directing the decree holders to file a suit
for possession by misreading the judgments referred to. Hon'ble Supreme
Court discussed the scope of Section 22 of the Special Relief Act, besides
Section 28 (3) & (4) and Section 55 (1) of the Transfer of Property Act, 1882
and held as under:-
12. There was no provision in the Specific Relief Act, 1877 corresponding
to Section 22 of the Act. Section 22 came to be part of the Act, in pursuance
of the recommendation of Law Commission in its 9th Report submitted on
19th July, 1958. The Law Commission was chaired by Mr. M.C.Setalvad and
had members including Mr. S.M.Sikri, Mr. G.S.Pathak and Mr. N.A.Palkhivala.
The Law Commission had recommended as under:-
"35. It will be useful, we think to introduce a rule which has been now
settled by judicial decisions, that in order to avoid multiplicity of
proceedings the plaintiff may claim a decree for possession in a suit
for specific performance even though, strictly speaking, the right to
possession accrues only when specific performance is decreed
(Krishnaji v. Sangappa, A.I.R. 1925 Bom. 181, Velayuda v.
Kumaraswami, 52 I.C. 700 (Mad.). No doubt, it has been laid down
that possession can be asked for in execution of a decree for specific
performance even though possession was not claimed in the plaint,
on the ground that the relief of possession is merely incidental to that
of execution of a deed of conveyance (Kartik v. Dibakar, A.I.R. 1952
Cal. 362; Arjun Sing v. Sahu, A.I.R. 1950 All. 415). At the same time it
has been held that the plaintiff decree-holder does not acquire title
or the right to recover possession unless a saledeed is executed in
execution of the decree for specific performance (Enayat Ullah v.
Khalil Ullah, A.I.R. 1938 All. 432.). We think it would be simpler to
make a statutory provision enabling the plaintiff to ask for possession
in the suit for specific performance and empowering the Court to
provide in the decree itself that upon payment by the plaintiff of the
consideration money within the given time, the defendant should
execute the deed and put the plaintiff in possession (Cf. Abdul v.
Abdul, 46 Mad. 148.)"
5 of 14
Neutral Citation No:=2024:PHHC:125937
ESA-221-2018 2024:PHHC: 125937
13. The Act was enacted thereafter with newly added Section 22 to avoid
multiplicity of proceedings. Section 22 reads thus:
"22. Power to grant relief for possession, partition, refund of
earnest money, etc.--(1) Notwithstanding anything to the contrary
contained in the Code of Civil Procedure, 1908 (5 of 1908), any person
suing for the specific performance of a 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.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall
be granted by the court unless it has been specifically claimed:
Provided that where the plaintiff has not claimed any such relief in
the plaint, the court shall, at any stage of the proceeding, allow him
to amend the plaint on such terms as may be just for including a claim
for such relief.
(3) The power of the court to grant relief under clause (b) of
subsection (1) shall be without prejudice to its powers to award
compensation under Section 21."
14. Section 28 (3) & (4) and Section 55(1)(f) of the Transfer of Property
Act, 1882 are also relevant here, which read thus:-
"28. Rescission in certain circumstances of contracts for the sale or
lease of immovable property, the specific performance of which has
been decreed.--
(1) xx xx xx
(2) xx xx xx
(3) If the purchaser or lessee pays the purchase money or other
sum which he is ordered to pay under the decree within the period
referred to in sub-section (1), the court may, on application made in
the same suit, award the purchaser or lessee such further relief as he
may be entitled to, including in appropriate cases all or any of the
following reliefs, namely--
6 of 14
Neutral Citation No:=2024:PHHC:125937
ESA-221-2018 2024:PHHC: 125937
(a) the execution of a proper conveyance or lease by the vendor
or lessor;
(b) the delivery of possession, or partition and separate
possession, of the property on the execution of such conveyance or
lease.
(4) No separate suit in respect of any relief which may be claimed
under this section shall lie at the instance of a vendor, purchaser,
lessor or lessee, as the case may be."
Section 55(1)(f) of the Transfer of Property Act, 1882
"55. Rights and liabilities of buyer and seller.--In the absence of a
contract to the contrary, the buyer and the seller of immovable
property respectively are subject to the liabilities, and have the rights,
mentioned in the rules next following, or such of them as are
applicable to the property sold:
(1) The seller is bound--
xx xx xx
(f) to give, on being so required, the buyer, or such person as he
directs, such possession of the property as its nature admits;"
6.6 Hon'ble Supreme Court then referred to various judgments
passed by the different High Courts taking divergent opinions and then
referred to the view taken by the Supreme Court in Babu Lal Vs. Hizari Lal
Kishori Lal and Co. (1982) 1 SCC 525 and held in para No.16 as under:-
"16. Such provision of the Act had come up for consideration before this
Court in Babu Lal v. Hazari Lal Kishori Lal & Ors, (1982) 1 SCC 525 at the
instance of a purchaser pendente lite. This Court has explained the
expression "in an appropriate case" appearing in sub-section (1) of Section
22 of the Act. The Court also examined the question as to whether the relief
for possession can be effectively granted to the decree-holders where the
property agreed to be conveyed is jointly held by the defendant with other
persons. In such cases, the plaintiff must claim partition of the property and
possession over the share of the defendant. Hence, relief for possession
must be specifically pleaded in these particular cases. This Court held that as
against the third person, a decree for possession must be specifically claimed
as such a person is not bound by the contract to be enforced. The argument
7 of 14
Neutral Citation No:=2024:PHHC:125937
ESA-221-2018 2024:PHHC: 125937
that the plaintiff must claim possession in a suit for specific performance of a
contract in all cases was also negated as Section 22 talks about the relief of
possession in appropriate case. This Court addressed the history of the
provision so enacted and held as under: -
"11. Section 22 enacts a rule of pleading. The legislature thought it
will be useful to introduce a rule that in order to avoid multiplicity of
proceedings, the plaintiff may claim a decree for possession in a suit
for specific performance, even though strictly speaking, the right to
possession accrues only when suit for specific performance is
decreed. The legislature has now made a statutory provision enabling
the plaintiff to ask for possession in the suit for specific performance
and empowering the court to provide in the decree itself that upon
payment by the plaintiff of the consideration money within the given
time, the defendant should execute the deed and put the plaintiff in
possession.
xx xx xx
13. The expression in sub-section (1) of Section 22 "in an appropriate
case" is very significant. The plaintiff may ask for the relief of
possession or partition or separate possession "in an appropriate
case". As pointed out earlier, in view of Order 2 Rule 2 of the Code of
Civil Procedure, some doubt was entertained whether the relief for
specific performance and partition and possession could be combined
in one suit; one view being that the cause of action for claiming relief
for partition and possession could accrue to the plaintiff only after he
acquired title to the property on the execution of a sale deed in his
favour and since the relief for specific performance of the contract for
sale was not based on the same cause of action as the relief for
partition and possession, the two reliefs could not be combined in
one suit.........In a case where exclusive possession is with the
contracting party, a decree for specific performance of the contract of
sale simpliciter, 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. This is in consonance with the provisions of
Section 55(1) of the Transfer of Property Act which provides that the
8 of 14
Neutral Citation No:=2024:PHHC:125937
ESA-221-2018 2024:PHHC: 125937
seller is bound to give, on being so required, the buyer or such person
as he directs, such possession of the property as its nature admits."
14. There may be circumstances in which a relief for possession cannot
be effectively granted to the decree-holder without specifically claiming
relief for possession viz. where the property agreed to be conveyed is jointly
held by the defendant with other persons. In such a case the plaintiff in
order to obtain complete and effective relief must claim partition of the
property and possession over the share of the defendant. It is in such cases
that a relief for possession must be specifically pleaded.
xxx xxx
16. ......It may not always be necessary for the plaintiff to specifically claim
possession over the property, the relief of possession being inherent in the
relief for specific performance of the contract of sale. Besides, the proviso to
sub-section (2) of Section 22 provides for amendment of the plaint on such
terms as may be just for including a claim for such relief "at any stage of the
proceeding."
6.7 Hon'ble Supreme Court noted further that even prior to the
taking of the aforesaid view by the Supreme Court in Babu Lal's case
(Supra), the similar view had already been taken by the different High
Courts to hold that the relief of possession is inherent in a decree for
possession while examining Section 22 of the Act. After referring to various
such judgments passed by the different High Courts, Hon'ble Supreme
Court then held as under:-
"25. A perusal of the aforesaid judgments would show that relief of
possession is ancillary to the decree for specific performance and need not
be specifically claimed. That was the position even under the Specific Relief
Act, 1877. Section 22 of the Act was introduced in pursuance of the
recommendation of the Law Commission to avoid multiplicity of proceedings
and to cut down the delay. Therefore, though the preponderance of judicial
opinions under the Specific Relief Act, 1877 was in favour of the fact that
relief of possession is ancillary to the decree for specific performance, it was
further clarified by introducing Section 22 of the Act."
9 of 14
Neutral Citation No:=2024:PHHC:125937
ESA-221-2018 2024:PHHC: 125937
6.8. Examining the matter from another angle, Hon'ble Supreme
Court further held as under:-
"26. The matter can be examined from another angle as well. Section 22(2)
of the Act, though is worded in negative language, "no relief under clause (a)
or clause (b) of sub-section (1) shall be granted by the court unless it has
been specifically claimed", but the proviso takes out the mandatory nature
from the substantive provision of sub-section (2) when the plaintiff is
allowed to amend the plaint on such terms as may be just for including the
plaint for such relief "at any stage of the proceeding". "At any stage of the
proceeding" would include the proceeding in suit or in appeal and also in
execution. The proviso to sub-section (2) of Section 22 of the Act
contemplates that the Court shall, at any stage of the proceedings, allow the
plaintiff to amend the plaint on such terms as may be just for including a
claim for such relief. The said proviso makes the provision directory as no
penal consequences follow under sub-section (2) of Section 22. Therefore,
sub-section (2) of Section 22 is a rule of prudence to ask for possession "in
an appropriate case". The appropriate case would not include a suit for
specific performance simpliciter but may include a suit for partition or a suit
when the decree is to be executed against a transferee. Subsection (2)
cannot be said to be a mandatory provision as the power to claim relief at
any stage of the proceeding makes sub-section (2) directory. Sub-section (2)
is a matter of procedure to avoid multiplicity of proceedings. The procedural
laws are handmaid of justice and cannot defeat the substantive rights.
............
30. The defendant in terms of the agreement is bound to handover
possession of the land agreed to be sold. The expression "at any stage of
proceeding" is wide enough to allow the plaintiffs to seek relief of possession
even at the appellate stage or in execution even if such prayer was required
to be claimed. This Court in Babu Lal has explained the circumstances where
relief of possession may be necessary such as in a suit for partition or in a
case of separate possession where the property conveyed is a joint property.
In the suit for specific performance, the possession is inherent in such suit,
therefore, we find that the decree-holders are in fact entitled to possession
in pursuance of the sale deed executed in their favor."
10 of 14
Neutral Citation No:=2024:PHHC:125937
ESA-221-2018 2024:PHHC: 125937
7. It is, thus, clear from the afore-said legal position as explained
by Hon'ble Supreme Court that defendant in terms of the agreement is
bound to hand over the possession of the land agreed to be sold and that
the expression "at any stage of the proceedings" appearing in Section 22 of
the Specific Relief Act is wide enough to allow the plaintiffs to seek relief of
possession even at the appellate stage or in the execution, even if such
prayer was required to be claimed. Hon'ble Supreme Court has further
explained by referring to Babu Lal's case (supra) about the circumstances,
where relief of possession may be necessary, such as in a suit for partition
or in a case of separate possession, where the property involved is a joint
property. In the suit for specific performance, the possession is inherent in
such a suit and therefore, the decree holders were held entitled to
possession in pursuance to the sale deed executed in their favour.
8. Thus, the legal position, which emerges is as under:
It is generally not necessary for the plaintiff to specifically claim
possession over the property, as the relief of possession is inherent
in the relief for specific performance of the contract of sale.
In a case where exclusive possession is with the contracting party, a
decree for specific performance of the contract of sale simpliciter,
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.
There may be circumstances, in which a relief for possession cannot
be effectively granted to the decree-holder without specifically
claiming relief for possession viz.
o where the property agreed to be conveyed is jointly held by
the defendant with other persons. In such a case, the plaintiff
in order to obtain complete and effective relief must claim
11 of 14
Neutral Citation No:=2024:PHHC:125937
ESA-221-2018 2024:PHHC: 125937
partition of the property and possession over the share of the
defendant. It is in such cases that a relief for possession must
be specifically pleaded.
o When it is a case of separate possession.
It is only in the abovesaid circumstances that the words "at any
stage of the proceeding" used in Section 22 of the Specific Relief Act,
are applicable and in view of proviso to sub-section (2) of Section 22
of the Act, the Court shall, at any stage of the proceedings, allow the
plaintiff to amend the plaint on such terms as may be just for
including a claim for such relief.
9. The facts of present case are quite similar to facts in
Manickam @ Thandapani and another Vs. Vasantha (supra). In this case
also, although the suit for declaration with consequential relief of
permanent injunction and also for decree of specific performance of the
agreement to sell was initially dismissed by the trial Court on 29.05.2014
but the appeal of respondent no.1 herein-Shri S.B. Babber, was allowed by
the First Appellate Court on 17.08.2016 by providing the following relief:-
"The suit of the appellant is decreed. The appellant is hereby declared as
owner/allottee of the plot of land bearing No.AM-37, New No. C-3649
area measuring 450.67 Sq. Yds., situated in Green Fields Colony,
Faridabad and cancellation of the said plot in his name and its resale in
favour of the respondent No.2 vide registered conveyance deed dated
5.8.2004 by the respondent No.1 is declared as illegal, wrongful, arbitrary
and against the principle of natural justice. Further, the respondents are
directed to restore the allotment of plot in dispute and to get the sale
deed executed and registered in favour of use appellant on annulment of
the lawful conditions/requirements, if any by the appellant. The
application under Order 39 Rules 1 and 2 read with Section 151 CPC filed
by the appellant is hereby disposed of in the light of the above mentioned
observation. Decree sheet be prepared accordingly. LCR alongwith copy
of this judgment be sent back."
12 of 14
Neutral Citation No:=2024:PHHC:125937
ESA-221-2018 2024:PHHC: 125937
10. As noticed earlier that afore-said judgment of First Appellate
Court has been upheld upto Hon'ble Supreme Court.
11. It is, thus, clear that respondent No.1-Shri S.V. Babber i.e.
decree holder was not only declared as an owner/allottee of the plot in
dispute and the cancellation of the plot is in his name and its resale in
favour of respondent No.2 was held to be null, illegal and void, the
respondents of the suit i.e. JDs were further directed to restore the
allotment of the plot in dispute and to get the sale deed executed and
registered in favour of respondent No.1 Shri S.V. Babber (decree holder)
on fulfilling the lawful conditions etc.
12. In the present case, the property in question, which had been
agreed to be sold in favour of the respondent N: 1 by the judgment debtor
No. 2 i.e. Urban Improvement Company Limited, was exclusively owned &
possessed by the said Company. It is not a case that it was a suit for
partition or a case of seeking separate partition in a joint property held by
the Urban Improvement Company Limited along with any other persons.
13. Subsequent transfers in favour of Rajeev Juneja & Puja Juneja
and then execution of GPA by them in favour of Naman Gupta and then
sale of flats constructed on the plot in dispute to appellants by said Naman
Gupta, are all during pendency of lis and clearly hit by principles of lis
pendens.
14. Even if the relief of possession was not specifically granted to
the decree holder, the said relief is clearly inherent in the suit for specific
performance, as granted in favour of the respondent No.1-Shri S.V.
Babber. The applicants cannot be allowed to claim to be bona fide
purchaser of the suit property or that they are residing in the nine flats,
which have been built on the property in dispute. They are bound by the
decree. The Executing Court was not at all bound to frame any issues nor
13 of 14
Neutral Citation No:=2024:PHHC:125937
ESA-221-2018 2024:PHHC: 125937
any such issues were required to be framed in the facts and circumstances
of the case.
15. As a result of entire discussion of the factual matrix of the
case and the legal position as above, this Court does not find any illegality
or perversity in the impugned orders as passed by the Executing Court,
which has been upheld by the learned Additional District Judge by way of
the impugned order.
16. As such, holding the present appeal to be devoid of any merit,
the same is hereby dismissed.
September 23, 2024 (DEEPAK GUPTA)
Vivek JUDGE
Whether reasoned/speaking: Yes
Whether reportable: Yes
14 of 14
