# Jafar Mian v. Smt. Qaisar Jahan Begum and others

- **Citation:** (2007) 1 ILRA 137
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-08-28
- **Case number:** Civil Misc. Writ Petition No.48237 of 2005
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jafar-mian-v-smt-qaisar-jahan-begum-and-others-40799
- **Pages:** 6

## Headnote

Specific Relief Act, 1963-Section-22Power
of
Execution
Court-Suit
for
enforcement of Regd. Agreement to sale
decreed-sale deed-executed by courtapplication for delivery of possessionobjected
by
subsequent
purchaser
whether the possession can be delivered
by the execution court even without
such direction in Decree or the Decree
holder
to
file
separate
suit
for
possession-held-relief
for
possessionbeing incidental could be granted by the
execution Court itself.

Held: Para 7

In view of the aforesaid, in a suit for
specific performance of the contract for
sale,
even
though
no
relief
for
possession is claimed and subsequently,
a decree is passed, the Court executing
the decree is, nonetheless, competent to
deliver possession where it is found that
the contesting party was in exclusive
possession of the property. Further, the
order directing the delivery of the
possession is incidental to the execution
of the sale-deed in view of section 55 of
138 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the Transfer of Property Act, which
entitles
a
transferee
to
get
the
possession in pursuance of the saledeed.
Case law discussed:
2005 (8) SCC-486
AIR 1982 SCC-818

(Delivered Hon'ble Tarun Agarawala, J.)

## Text

1 All] Jafar Mian V. Smt. Qaisar Jahan Begum and others
137
''simple interest' has been made only in a
case where ''market value is not truly set
forth'
whereas
''interest'
accrues
or
payable in a case where market value is
truly set forth. A conjoint reading of
aforesaid provisions clearly indicates that
Section 47-A has differently treated a case
where market value has been truly set
forth and, on the other hand, a case where
market value is not truly set forth.

55. In this view of the matter, it is
abundantly clear that imposition of
''penalty' by the Assistant Commissioner
(Stamps) is wholly uncalled for and
without jurisdiction. Accordingly it is
held that the order imposing penalty is
arbitrary, without jurisdiction and no
penalty can be imposed in the facts of the
present case.

ANSWER

56. In view of the above discussion
we answer the second question by holding
that the relevant date for determining the
market value of the property for being
subject matter of the sale deed is the third
i.e. January 3, 1985 when the Court
executed the sale deed in question on
behalf of the vendors.

57. The Registrar General is directed
to send a copy of this judgment to the
Chief Controlling Revenue Authority in
accordance with Section 59 of the Stamp
Act.

The reference is decided accordingly.
No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.48237 of 2005

Jafar Mian

...Petitioner
Versus
Smt. Qaisar Jahan Begum and others

 ...Respondent

Counsel for the Petitioner:
Sri M.A. Siddiqui
Sri Mohd. Shoeb Khan

Counsel for the Respondents:
Sri M. Islam
Sri Ahmad Saeed
Sri Shahroze Khan

Specific Relief Act, 1963-Section-22Power
of
Execution
Court-Suit
for
enforcement of Regd. Agreement to sale
decreed-sale deed-executed by courtapplication for delivery of possessionobjected
by
subsequent
purchaser
whether the possession can be delivered
by the execution court even without
such direction in Decree or the Decree
holder
to
file
separate
suit
for
possession-held-relief
for
possessionbeing incidental could be granted by the
execution Court itself.

Held: Para 7

In view of the aforesaid, in a suit for
specific performance of the contract for
sale,
even
though
no
relief
for
possession is claimed and subsequently,
a decree is passed, the Court executing
the decree is, nonetheless, competent to
deliver possession where it is found that
the contesting party was in exclusive
possession of the property. Further, the
order directing the delivery of the
possession is incidental to the execution
of the sale-deed in view of section 55 of
138 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the Transfer of Property Act, which
entitles
a
transferee
to
get
the
possession in pursuance of the saledeed.
Case law discussed:
2005 (8) SCC-486
AIR 1982 SCC-818

(Delivered Hon'ble Tarun Agarawala, J.)

1. Smt. Farooq Zamani Begum, the
owner of the property in dispute entered
into an agreement of sale with Smt.
Qaisar
Jahan
Begum,
the
plaintiff
respondent no.1 for Rs.1,42,000/-. Part
payment was made and the sale deed was
required to be executed within one month
of the conclusion of the pending litigation
in respect of the property in dispute.
Instead of executing a sale deed in favour
of the plaintiff, Smt. Farooq Zamani
Begum executed a sale deed in favour of
the petitioner Jafar Mian selling 1/4th
share
of
the
house
in
question.
Consequently, a suit No.159 of 1988 was
filed for the specific performance of the
agreement. The said suit was decreed by a
judgment dated 14.7.1992. An execution
Case No.9 of 1992 was filed and) in this
execution proceeding, a sale-deed was
executed by the Court on 4.1.1994, which
was ultimately registered on 13.5.1997.

2. The decree holder, respondent
no.1 filed a second execution application
praying for the possession of the property
in question. The petitioner, who is
subsequent purchaser, filed an objection
under section 47 of the Code of Civil
Procedure, which was rejected by an
order dated 18.1.2005 by the executing
court. The petitioner preferred a revision
which was also dismissed by a judgment
dated 31.5.2002. Consequently, the writ
petition.

3. Heard Sri M.A. Siddiqui, the
learned counsel for the petitioner and Sri
M.lslam, the learned counsel appearing
for respondent no.1.

4. 'The sole point urged before this
Court is, that the relief claimed by the
decree holder was outside the framework
of the relief claimed by the plaintiff and
therefore, the prayer for the possession of
the property could not be granted in view
of Section 22 of the Specific Relief Act,
and that a separate suit for possession was
required to be filed by the decree holder.
It was urged that the executing Court
acted
in
flagrant
violation
of
the
provisions of section 22 of the Specific
relief Act in granting the relief for
possession.

For facility, the provision of Section
22 of the Specific Relief Act, 1963 is
quoted hereunder:

"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:
1 All] Jafar Mian V. Smt. Qaisar Jahan Begum and others
139
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.
\
5. From a perusal of the aforesaid
provision, it is clear that Section 22 of the
Specific Relief Act, 1963, enacts a rule of
pleading. This section was introduced to
avoid multiplicity of proceedings and
therefore, the plaintiff could also claim a
decree for possession in a suit for specific
performance, even though, the right to
possession accrued only after the suit for
specific performance was decreed.

6. The Supreme Court in Babu Lal
Vs. Hazari Lal Kishori Lal and others,
AIR 1982 see 818 has explained the
provisions of section 22 of the Specific
Relief Act, and in particular the words "in
an appropriate case" the Supreme Court
held-

"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 Civil Procedure code
some d9ubt 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 relief's could not be
combined in one suit. Similarly, a case
may be visualised where after the contract
between the plaintiff and the 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 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 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
140 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
over the share of the defendant. It is in
such cases -that a relief for possession
must be specifically pleaded."

The Supreme Court further held "that
the expression only indicates that it is not
always incumbent on the plaintiff to claim
possession
or
partition
or
separate
possession
in
a
suit
for
specific
performance of a contract for the transfer
of the immovable property. That has to be
done where the circumstances demanding
the relief for specific performance of the
contract of sale embraced within its ambit
not only in the execution of the sale deed
but also possession over the property
conveyed under the sale deed. 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 proceedings."

7. In view of the aforesaid, in a suit
for specific performance of the contract
for sale, even though no relief for
possession is claimed and subsequently, a
decree is passed, the Court executing the
decree is, nonetheless, competent to
deliver possession where it is found that
the contesting party was in exclusive
possession of the property. Further, the
order directing the delivery of the
possession is incidental to the execution
of the sale-deed in view of section 55 of
the Transfer of Property Act, which
entitles a transferee to get the possession
in pursuance of the sale-deed.

8. Apart from the aforesaid, Section
28 of the Specific Relief Act provides a
complete answer which reads as under:

"28.
Rescission
in
certain
circumstances of contracts for the sale
or lease of immovable property, the
specific performance of which has been
decreed ..... [1] Where in any suit a
decree for specific performance of a
contract for the sale or lease of
immovable property has been made and
purchaser or-lessee does not, within the
period allowed by the decree or such
further period as the court may allow, pay
the purchase money or other sum which
the court has ordered him to pay, the
vendor or lessor may apply in the same
suit in which the decree is made, to have
the contract rescinded and on such
application the court may, by order,
rescind the contract either so far as
regards the party in default or altogether,
as the justice of the ease -may require.

(2) Where a contract is rescinded
under sub-section (l), the Court -

[a] shall direct the purchaser or lessee, if
he has obtained possession of the
property under the contract, to
restore such possession to the vendor
or lessor, and

[b] may direct payment to the vendor or
lessor of all the rents and profits
which have accrued in respect of the
property from the date on which
possession was so obtained by the
purchaser or lessee until restoration
of possession to the vendor or lessor,
and, if the justice of the case so
requires, the refund of any sum paid
by the vendee or lessee as earnest
1 All] Jafar Mian V. Smt. Qaisar Jahan Begum and others
141
money or deposit in connection with
the contract.

3] If the purchaser of 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 case all or any
of the following relief, namely-

a]
the execution of a proper conveyance
or lessee 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.

5]
The costs of any proceedings under
this section shall be in the discretion of
the court."

9. Section 28[3] of this Act
contemplates that if the purchaser and
lessee pays the money or other sum which
is ordered to be paid under the decree, the
Court may on the application made in the
same suit award the purchaser, the
delivery of possession. Sub clause [4] of
section 28 of the Act, clearly indicates
that a relief of possession cannot be
claimed by a separate suit.

10. The judgment of the Supreme
Court was again reiterated in another
decision of the Supreme Court in P.C.
Varghese
Vs.
Devalki
Amma
Balambika Devi and others, [2005] 8
see 486 wherein the Supreme Court held-

"The said decree for partition,
therefore, has attained finality. No decree
for specific performance of contract,
however, has been passed as against
respondents 4 and 5. They are, however,
otherwise bOtll1d by the decree passed by
the learned trial Judge. Therefore, they are
also proper parties, though not necessary
parties.

Before
parting
with
this
case,
however, we may observe that the manner
in which the decree has been passed by
the learned trial court is open to question
inasmuch as a relief in terms of Section
22 of the Specific Relief Act being
incidental or ancillary to the main relief of
specific performance of contract and,
furthermore, being in addition thereto,
ordinarily, a proceeding for grant of a
final decree for partition should be
initiated after the sale deed in terms of the
decree
for
specific
performance
of
contract is executed and registered and
not vice versa."

11. In the present case, the
petitioner, who is a subsequent purchaser
was also made a defendant in the suit and
the decree was also passed against him. In
the written statement filed by the
petitioner it was categorically stated that
he was in the possession of the property in
question. Consequently, once the Court
executed a sale deed in favour of the
decree holder, the relief of possession,
being incidental, could always be granted
by the executing Court.

12. In view of the aforesaid, I do not
find any error in the impugned order
142 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
passed by the executing Court. The writ
petition fails and is dismissed.

Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.08.2006

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No.25401 of 2002

Zamir Ahmad and others
...Petitioner
Versus
Additional District Judge, Court No.5,
Bulandshahr and others ...Respondents

Counsel for the Petitioners:
Sri R.B. Singhal

Counsel for the Respondents:
Sri Y.S. Bohra

U.P.
Urban
Building
(Regulation
of
Letting Rent and Eviction) Act, 1972Section 21 (1) (a)-Release applicationbonafide
need-during
pendency
of
proceeding-tenant acquired alternative
accommodation-consideration
of
bonafide need and comparative hardship
not required.

Held: Para 3

The appellate Court failed to take into
consideration the fact that the tenant
has his own shop which is hardly 100
metres away from the shop, in dispute
where he has established his son in
business.
The
application
of
the
petitioner was moved under Section 21
(1)(a)
of
the
U.P.
Urban
Building
(Regulation
of
Letting,
Rent
and
Eviction) Act, 1972 (hereinafter referred
to as 'the Act). Once the tenant acquired
an alternative accommodation in vacant
possession and established his son in
business, question of bona fide need and
comparative hardship would not relevant
on the analogy of Explanation (1) to
Section 21(1)(a) of the Act. It was not
open for the appellate Authority in the
circumstances to take into consideration
the question of comparative hardship
due to facum of possession of one shop
by the landlords in vacant position
during pendency of suit proceedings.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard counsel for the parties.

2. Landlords had filed an application
for release of the shop in dispute. Both the
Courts below have recorded a finding of
fact that the need of the landlords is
genuine and bona fide. Though the
Prescribed Authority has also gone into
the question of comparative hardship, its
finding on this issue, has been reversed by
the Appellate Court on the ground that
during the pendency of the appeal, one
shop of the landlords became vacant, as
such,
need
of
the
landlord
stood
extinguished.

3. The appellate Court failed to take
into consideration the fact that the tenant
has his own shop which is hardly 100
metres away from the shop, in dispute
where he has established his son in
business. The application of the petitioner
was moved under Section 21 (1)(a) of the
U.P. Urban Building (Regulation of
Letting, Rent and Eviction) Act, 1972
(hereinafter referred to as 'the Act). Once
the
tenant
acquired
an
alternative
accommodation in vacant possession and
established his son in business, question
of bona fide need and comparative
hardship would not relevant on the
analogy of Explanation (1) to Section
21(1)(a) of the Act. It was not open for
the
appellate
Authority
in
the
circumstances to take into consideration