Holding

A suit for specific performance simpliciter, without a specific prayer for possession, does not constitute a "suit for land" within clause 12 of the Letters Patent.

Summary

The appellant, a seller of a land‑and‑building, executed an agreement and memorandum to sell the property to the respondents. The respondents filed a suit under clause 12 of the Letters Patent of the Bombay High Court seeking a declaration of the agreement’s validity and specific performance of the sale, without expressly praying for possession of the land. The question before the Supreme Court was whether such a suit for specific performance, in the absence of a specific claim for possession, constitutes a "suit for land" within the meaning of clause 12, thereby affecting the High Court’s jurisdiction. The Court held that a suit is a "suit for land" only when the relief claimed relates to adjudication of title or delivery of possession, and that under Section 22(2) of the Specific Relief Act, relief of possession can be granted only if it is specifically pleaded. Since the plaint sought only specific performance and did not claim possession, the suit was not a "suit for land". Consequently, the Division Bench’s order revoking the leave was upheld and the appeal dismissed.

Issues considered

Whether a suit for specific performance of a contract for sale of immovable property, without an explicit prayer for possession, is a "suit for land" under clause 12 of the Letters Patent of the Bombay High Court.
Whether Section 22(2) of the Specific Relief Act, 1963, requires a specific claim for possession before such relief can be granted, thereby influencing the classification of the suit.

Legislation cited

Code of Civil Procedure, 1908
Specific Relief Act, 1963s. 22(1), s. 22(2)

Subjects

suit for landspecific performanceSpecific Relief ActjurisdictionLetters Patentimmovable propertypossessionamendment of plaint

Judgment

ADCON ELECTRONICS PVT. LTD. A
v.
DAULAT AND ANR.

SEPTEMBER 12, 2001

[SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.] B

Letters Patent of High Court of Bombay-Clause {2-Agreemem to
sell-Suit simpliciter for specific pe1fo11nance-No other relief including
possession claimed-Nature of suit-Whether it amounts to suit for land-
Held, suit.for land is one in which relief claimed relates to adjudication of title C
or delivery of possession of land or immovable property-Under the facts,
held, it is not suit for land-Specific Relief Act, 1963-Section 22.

Words. and Phrases- 'Suit for land-Meaning of
Appellant executed an agreement and memorandum to sell the suit
D
property to respondents. Dispute arose between the parties regarding
performance of the said agreement and respondents filed a suit in the High
Court for declaration that the said agreement and memorandum were
subsisting and binding and all'o for a decree for its specific performance.
The suit was filed with the leave of the court under clause 12 of the Letters
Patent of the High,Court of Judicature of Presidency of Bombay. Single E
Judge granted leave. Appellant-defendant took out chamber summons for
revocation of leave granted to respondent-plaintiffs which was dismissed
by the Single Judge on the ground that suits for specific performance, even
though they may relate to land, were not suits for lands. On appeal Division
Bench upheld the order of the Single Judge holding that suit for specific F
performance of an agreement for sale was not a "suit for land". Aggrieved
by the judgment of Division Bench, defendant has filed the present appeal .

. Appellant contended that suit for specific performance of agreement
is a "suit for land" in view of specific stipulation in the agreement that
defendant would hand over possession of the suit property on the execution G
of the sale deed; and that suit is for acquisition of title to land and is a "suit
for land".

Respondent contended that suit for specific performance simpliciter
in the absence of an explicit prayer for delivery of possession of suit
property cannot be treated as a "suit for land" in view of sub-section (2) of H
29
30 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A Section 22 of the Specific Relief Act, 1963.

Dismissing the appeal, the Court

HELD : l. A "suit for land" is a suit in which the relief claime<i
relates to title to or delivery of possession of land or immovable property.
B Whether a suit is a "suit for land" or not has to be determined on the
averments in the plaint with reference to the reliefs claimed therein; where
the relief relates to adjudication of title to land or immovable property or
delivery of possession of the land or immovable property, it will be a "suit
for land". [35-G-H]
c Mis. Moo(ii Jaitha and Co. v. The Khandesh Spinning and Weaving Mills
Co. Ltd., AIR (37) (1950) Federal Court 83; His Highness Shrimant Maharaj
Yashvantrav Holkar of Indore v. Dadabhai Cursetji Ashbumer, (1890) 14
I.L.R. Bombay 353; Debendra Nath Chowdhary v. Southern Bank Ltd., AIR
(1960) Calcutta 626 referred to.
D
2.1. In a suit for specific performance of contract for sale of immovable
property containing stipulation that on execution of the sale deed the
possession of the·immovable property will be handed over to the purchaser,
it is implied that delivery of possession of the immovable property is part
of the decree of specific performance of contract. But in this connection it
E is necessary to refer to Section 22 of the Specific Relief Act, 1963. Sub-
a
section (1) of Section 22 is an enabling provision. A plaintiff in suit for
specific performance may ask for further reliefs mentioned in clauses (a)
and (b) thereof. Clause (a) contains reliefs of possession and partition and
separate possession of the property, in addition to specific performance.
F The mandate of sub-section (2) of Section 22 is that no relief under clauses
(a) and (b) of sub-section (1) shall be granted by the court unless it has
been specifically claimed. In its true sense a suit simpliciter for specific
performance of contract for sale of land is a suit for enforcement of terms
of contract. The title to the land as such is not the subject-matter of the
suit. Thus it follows that no court can grant the relief of possession of land
G or other immovable property, subject matter of the agreement for sale in ''
regard to which specific performance is claimed, unless the possession of
the immovable property is specifically prayed for. (36-B; G-H]

2.2. The instant case is a suit for specific performance of agreement
H for sale of suit property wherein relief of delivery of the suit property has
ADCON ELECTRONICS PVT. LTD. v. DAULAT [QUADRI, 1.J 31
not been specifically claimed as such and so it cannot be treated as a "suit A
for land". (37-A]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1566of1991.
)
From the Judgment and Order dated 30.7.90 of the Bombay High Court
in A. No. 697 of 1990. B

A.K. Chitale, M. Mannan and Krishnand Pandeya for the Appellant.

M. Karanjawala, A.S. Bhasme (A.C.) and Manoj K. Mishra for the
Respondents.
c
The Judgment of the Court was delivered by

SYED SHAH MOHAMMED QUADRI, J. This appeal, by special
leave, raises an interesting question : whether a suit simpliciter for specific
performance of contract for sale of immovable property is a "suit for land"
within clause 12 of Letters Patent of the High Court of Judicature at Bombay? D

The appellant is the defendant and the respondents are the plaintiffs in
the suit out of which this appeal arises. In this judgment the parties will be
referred to as they are arrayed in the trial court.

The facts lie in a narrow campus and are not in dispute. By an agreement
E
of July 12, 1986 land together building known as "Vithal Bhavan'', bearing
No.615 (Block No.24), South Tukoganj, Indore, M.P., (for short, 'the suit
property') was agreed to be sold by the defendant to the plaintiffs for a
consideration of Rs.53,75,000/-. Subsequently the parties executed a
memorandum also in regard to the suit property on August 1, 1987. Disputes F
arose between the parties with regard to the performance of the said agreement.
The plaintiffs filed Suit No.1088 of 1989 in the High Court of judicature at
Bombay (for short, 'the High Court') against the defendant praying, inter alia,
for a declaration that agreement dated July 12, 1986 and memorandum dated
August 1, 1987 are subsisting and binding on the defendant and for a decree G
of specific performance of the said agreement and memorandum. The suit was
filed with the leave of the court under clause 12 of the Letters Patent of the
High Court of Judicature of Presidency of Bombay (referred to in this judgment
as 'the Letters Patent'). A learned single Judge of the High Court granted leave
on April 4, 1989. The defendant took out chamber summons No.862 of 1989
in the suit for revocation of the leave granted to the plaintiffs. The learned H
32 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A single Judge dismissed the chamber summons on January 22, 1990. That order
was assailed by the defendant in LP.A. No.697 of 1990. A Division Bench of
the High Court dismissed the LP.A. on July 30, 1990. It is that order of the
Division Bench which is under challenge in this appeal. ( ~

Mr.A.K.Chitale, the learned senior counsel appearing for the defendant
B (appellant), has argued that in the agreement there is specific stipulation that
the defendant will hand over possession of the suit property on the execution
of the sale deed, therefore, the suit for specific performance of the agreement
would be a "suit for land" within the meaning of clause 12 of the Letters Patent.
In any event, submitted the learned counsel, acquisition of title to any immovable
c property would also fall within the meaning of "suit for land" and, therefore,
the High Court erred in not revoking the leave.

Ms.Manik Karanjawala, the learned counsel who was appearing for the
plaintiffs (respondents), sought permission to withdraw from the case for the
reason that her clients asked her not to appear in the appeal. We permitted her
D to withdraw from the case.

Inasmuch as the plaintiffs remained unrepresented we requested
Mr.A.S.Bhasme, Advocate, to assist the court as amicus cw:iae. The learned
counsel readily accepted the responsibility an<;! very ably argued the appeal for
the plaintiffs. His contention is that as sub-section (2) of Section 22 of the
E Specific Relief Act, 1963 directs that relief of possession in addition to specific
performance of the agreement should not be granted by court unless it has been
specifically claimed therefore a suit for specific performance simpliciter in the
absence of a explicit prayer for delivery of possession of the suit property, can
not be treated as a "suit for land".
F
It will be appropriate to refer to clause 12 of Letters Patent which reads
thus :

"12. Original Jurisdiction as to suits.

And We do further ordain that the said High Court of Judicature
G at Bombay, in the exercise of its ordinary original civil jurisdiction,
shall be empowered to receive, try, and determine suits of every
description, if, in the case of suits for land or other immovable property
such land or property shall be situated, or in all other cases if the cause
of action shall have arisen, either wholly, or in case the leave of the
H Court shall have been first obtained, in part, within the local limits of
ADCON ELECTRONICS PVT. LTD. v. DAULAT [QUADRI, J.] 33
the ordinary original jurisdiction of the said High Court, or if the A
defendant at the time of the commencement of the suit shall dwell or
carry on business, or personally work for gain, within such limits;
except that the said High Court shall not have such original jurisdiction
in cases falling within the jurisdiction of the Small Cause Court at
Bombay, in which the debt or damage, or value of property sued for
B
does not exceed one hundred rupees."

Leaving the words which are not relevant for our purpose the said clause
will read as follows : "And We further ordain that the said High Court of
Judicature at Bombay, in the exercise of its ordinary original civil jurisdiction,
shall be empowered to receive, try, and determine suits of every description, c
if, in the case of suits for land or other immovable property such land or
property shall be situated, or in all other cases if the cause of action shall have
arisen, either wholly, or in case the leave of the Court shall have been first
obtained, in part, within the local limits of the ordinary original jurisdiction of
the said High Court, or if the defendant at the time of the commencement of
the suit shall dwell or carry on business, or personally work for gain within D
such limits ......... "

Thus, it is clear that under clause 12 of the Letters Patent, the High Court
in exercise of its ordinary original jurisdiction will have power to receive, try
and determine: (1) suits for land or other immovable property if such property E
is situated within the local limits of original jurisdiction of the High Court; or
(2) all other cases (a) if the cause of action has arisen wholly within the local
1imits of the ordinary original jurisdiction of the High Court; (b) if prior leave
of the Court has been obtained and the cause of action has arisen in part within
the local limits of the ordinary original jurisdiction of the High Court; or (c)
if the defendant dwells or carries on business or personally works for gain · F
within such limits.

The learned single Judge while dismissing the chamber summons took
the view that so far as the High Court of Bombay was concerned the law was
well settled that suits for specific performance, even though they might relate

' to the land, were not suits for land. On appeal the order of the learned single
Judge was confirmed by the Division Bench opining that the suit for specific
G

performance of an agreement for sale was not a "suit for land".

The question then arises as to what is meant by "suit for land". This
expression has been interpreted by different High Courts as well as the Federal H
34 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.

A Court.

In His Highness Shrimant Maharaj Yashvantrav Holkar of Indore v.
Dada Bhai Cursetji Ashburner, (1890) 14 I.LR. Bombay 353 a Division Bench
of the Bombay High Court held that a suit for specific performance would not
fall within the meaning of that expression. There the suit was filed for specific
B performance of an agreement to mortgage certain immovable property. The
agreement was made in Bombay between the parties on January 8, 1883. The
Divisional Court held, "it had jurisdiction" and granted decree. On appeal a
Division Bench referred to an earlier judgment of that court in Yenkoba Balset
Kasar v. Rambhaji (9 Bombay H.C.Rep.13) which laid down that suit for land
c was a suit which asked for delivery of land to the plaintiff. The High Court also
referred to the view of the Calcutta High Court in The Delhi and London Bank
v. Wordie [I.LR., 1 Calcutta 249 at p.263] construing that expression to mean,
"substantially for land" - that is for the purpose of acquiring title to, or control
over, land." It also noticed the view of a learned single Judge of the Calcutta
High Court in Sreenath Roy v. Cally Doss Ghose [I.LR. (5) Calcutta 82]
D holding that the court had no jurisdiction to make a decree in a suit for specific
performance. The Division Bench of the Bombay High Court held that the suit
was within the jurisdiction whether regarded as a suit for specific performance
or to enforce equitable mortgage by deposit of title deeds as a court of equity
in England could entertain it.
E
In Mis. Moolji Jaitha and Co. v. The Khandesh Spinning and Weaving
Mills Co. ltd., A.LR. 37 (1950) Federal Court 83, there is divergence of
opinion among the learned Judges of five-Judge Bench of the Federal Court
in regard to the import of the expression "suit for land". Chief Justice Kania
p opined, "Taking the suit as a whole, one has to consider whether it is for the
purpose of obtaining a direction for possession or a decision on title to land,
or the object of the suit is something different but involves the consideration
of the question of title to land indirectly." Justice Fazl Ali observed, "If I had
really felt that I was called upon to decide it, I would have agreed with the line
of cases in which it has been held that, broadly speaking, the expression "suit
G for land" covers the following three classes of suits : (I) suits for the determination
of title to land; (2) suits for possession of land; and (3) other suits in which the
reliefs claimed, if granted, would directly affect title to or possession of land."
Justice Patanjali Sastri took the view, "The words in question, besides obviously
covering claims for recovery of possession or control of land, are apt to connote
H also suit which primarily and substantially seek an adjudication upon title to
ADCON ELECTRONICS PVT. LTD. v. DAULAT [QUADRI, J.] 35
immovable property or a determination of any right or interest therein." Justice A
Mahajan observed, "If an attempt is made to find a comprehensive definition
of the phrase, it will eventually be discovered that it has created further
complications. I therefore content myself by saying that where the nature of
the suit is such that in substance it involves a controversy about land or
immovable property and the Court is called upon to decide conflicting claims
to such property and a decree or order is prayed for which will bring about a
B
change in the title to it, that suit can be said to be in respect of land or
immovable property; but where incidentally in a suit, the main purpose of
which or the primary object of which is quite different, some relief has to be
given about land, the title to it not being in dispute in the real sense of the term,
then such a suit cannot fall within the four corners of this expression." He c
added, "/11 my opinion, if the suit is for specific petformance and a decree for
possession of the land sold is c:laimed, such a suit would certainly be a "suit
for land"; but if the suit is simpliciter for spec(fic performance, i.e., for the
e1~forcement of the contract of sale and.for execution ~fa conveyance, in that
event there can be no good ground for holding that such a suit is a suit for
determination ~{title to land or that the decree in it would operate on the land." D
In that view he expressed his agreement with the decision of the Full Bench
of the Madras High Court in Velliappa Chettiar v. Govinda Doss, AIR (16)
(1929) Madras 721 F.B .. Justice Mukherjea perceived, "It seems to me fairly
clear that the expression 'suit for land' occurring in clause 12, Letters Patent,
means a suit which is instituted with the object of establishing claims regarding E
title to the property or possession of it. Whether or not possession is claimed,
if title to any immovable property is to be directly affected by the result of the
decision, the suit would be a suit for land." .

In Debendra Nath Chowdhury v. Sou them Bank Ltd., AIR ( 1960) Calcutta
626 a Division Bench of the Calcutta High Court took the view that the suit F
for specific performance of the contract to execute and register a lease with
alternative claims for damages is not a 'suit for land' within the meaning of
clause 12 of the Letters Patent.

From the above discussion it follows that a "suit for land" is a suit in

' which the relief claimed relates to title to or delivery of possession of land or
immovable property. Whether a suit is a "suit for land" or not has to be
determined on the averments in the plaint with reference to the reliefs Claimed
G

therein; where the relief relates to adjudication of title to land or immovable
property or delivery of possession of the land or immovable property, it will
be a "suit for land". We are in respectful agreement with the view expressed H

•
36 SUPREME COURT REPORTS [2001) SUPP. 3 S.C.R.
A by Mahajan.I. in Mis. MooOi Jaitha's case (supra).

In a suit for specific performance of contract for sale of immovable
property containing stipulation that on execution of the sale deed the possession
of the immovable property will be handed over to the purchaser, it is implied
that delivery of possession of the immovable property is part of the decree of
B specific performance of contract. But in this connection it is necessary to refer
to Section 22 of the Spe,cific Relief Act, 1963 which runs :

22. Power to grant relieffor possession, partition, refund of earnest
money, etc. -
c (1) Notwithstanding anything to the contrary contained in the Code
of Civil Procedure, 1908, any person suing for the specific
performance of a contract for the transfer of immovable property
may, in an appropriate case, ask for -

D (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 die
refund of any earnest money or deposit paid or made by
him in case his claim for specific performance is refused.
E
(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
F to amend the plaint on such terms as may be just for including a claim
for such relief.

It may be seen that sub-section (1) is an enabling provision. A plaintiff
in a suit of specific performance may ask for further reliefs mentioned in
clauses (a) and (b) thereof. Clause (a) contains reliefs of possession and partition
G and separate possession of the property, in addition to specific performance.
The mandate of sub-section (2) of Section 22 is that no relief under clause~ (a)
and (b) of sub-section (l) shall be granted by the Court unless it has been
specifically claimed. Thus it follows that no court can grant the relief of
'
possession ofland or other immovable property, subject-matterofthe agreement
H for sale in regard to which specific performance is claimed, unless the possession

.
ADCON ELECTRONICS PVT. LTD. v. DAULAT [QUADRI, J.] 37
of the immovable property is specifically prayed for. A
In the instant case the suit is for specific performance of agreement for
sale of the suit property wherein relief of delivery of the suit property has not
been specifically claimed as such it cannot be treated as a "suit for land".

We cannot also accept the contention of Mr.Chitale that the suit is for B
acquisition of title to the land and is a "suit for land". In its true sense a suit
._ simpliciter for specific performance of contract for sale of land is a suit for
enforcement of terms of contract. The title to the land as such is not the subject-
matter of the suit.

In this view of the matter, we do not find any illegality in the order of c
the Division Bench of the Bombay High Court under challenge. The appeal is
dismissed but in the circumstances of the case without costs.

Before parting with the case we rec?rd our appreciation for the assistance
rendered by Mr.A.S.Bhasme, the learned amicus curiae.
D
A.K.T. Appeal dismissed.