Arijit Banerjee, J.@mdashThis is an appeal against the judgment and order dated 4th March, 2011 passed by the Hon''ble First Court whereby the Learned Judge was pleased to permanently stay the suit on the ground that the same is a suit for land and the land is situated outside the territorial jurisdiction of this Court.
2. The plaintiff filed the above suit praying for, inter alia, the following reliefs:-
(a) The purported agreement dated 12th January, 2009 between the defendant no. 1 and the defendant no. 2 with regards to North Mill a copy whereof is contained in Annexure ''C'' hereto is wrongful and illegal and the said purported agreement be adjudged null and void and directed to be delivered up and cancelled;
(b) Mandatory injunction directing the defendant nos. 1 and 2 to forthwith restore and reconnect supply of water from the Hooghly river to the plaintiff through the pipe line and the water pump laid on the jetty servicing the North Mill;
(c) Perpetual injunction restraining the defendants either by themselves or through their servants, agents assigns or howsoever otherwise from in any way interfering with the right of the plaintiff to obtain supply of water from Hooghly river through the pipe line and the water pump laid on the jetty servicing the North Mill;
(d) Decree for Rs. 83,44,993.66 against the defendant nos. 1 and 2 as pleaded in paragraph 18 hereinabove;
(e) Interim interest and interest on judgment at the rate of 15% per annum;
(f) An enquiry be made into loss and damage suffered by the plaintiff and a money decree be passed against the defendant no. 2 for such sum as may be found upon such enquiry;
3. The agreement dated 12th January, 2009 which has been assailed in prayer (a) of the plaint is an agreement for transfer of a particular mill described as North Mill by the defendant no. 1 to the defendant no. 2.
4. The defendant no. 2 made an application for rejection of the plaint and/or for taking the plaint off the file and/or for dismissal of the suit on the ground that the suit was a ''suit for land'' over which this Court had no territorial jurisdiction. In the said application it was stated, inter alia, as follows:-
5. "From a fair and meaningful reading of the plaint, it is evident that the plaintiff is seeking adjudication of right, title and interest in and/or possession of land situate at jute mill situate at Bowreah outside the jurisdiction of this Hon''ble Court.
6. In such circumstances, the instant suit is a suit for land and land which is situate outside the jurisdiction of this Hon''ble Court and as such, this Hon''ble Court does not have jurisdiction to entertain, try and determine the instant suit.
7. Further and/or in any event, the plaint relating to the instant suit does not disclose any cause of action. The scheme of Demerger as sanctioned by this Hon''ble Court and relied upon by the plaintiff in the plaint does not give any right to the plaintiff to lands in the possession of the defendant no. 2 and which form the subject matter of the agreement dated 24th March, 1988 forming Annexure "A" to the plaint as also the agreement dated 12th January, 2009 made by and between the defendant nos. 1 and 2."
8. The plaintiff contested the application by filing affidavit-in-opposition.
9. Before the Hon''ble First Court the plaintiff was willing to abandon reliefs (b) and (c) claimed in the plaint to save the suit from being a ''suit for land''. However, the plaintiff insisted on pursuing relief (a) which according to the plaintiff had nothing to do with any land. It was contended by the plaintiff that the relief as to the cancellation of the agreement of January 12, 2009 is founded on the plaintiff''s assertion that the document is an unstamped and unregistered writing.
10. The learned Judge in his judgment impugned herein held as follows:-
Whatever may be said in the plaint and whatever denial may appear as to the nature of the suit, the test is in assessing the primary object of the suit.
For the plaintiff to be entitled to even assail the agreement of January 12, 2009 between the first and second defendants relating to the North Mill, the plaintiff has to first demonstrate an interest in the subject-matter of that agreement. Since it is the undeniable position that the subject-matter of that agreement between the first and the second defendants is the right to North Mill, it is obvious that the plaintiff in assailing the agreement between the first and second defendants asserts some form of right or interest in North Mill. In so doing, the plaintiff has effectively made this a suit for land.
In addition, the plaintiff has claimed its entitlement to water from pipes running along the North Mill. The plaintiff has also claimed easement rights. On a meaningful reading of the plaint, it does not appear that the money claimed on account of alleged electricity dues is at the heart of the suit. The right that the plaintiff seeks to assert is in respect of North Mill.
Though the plaintiff could have abandoned the first three reliefs which make this a suit for land, the plaintiff has offered to abandon only the second and third reliefs. The first relief would, by itself, make this a suit for land since the plaintiff''s right to challenge the agreement between the first and second defendants stems from the plaintiff''s assertion of having a right in the North Mill...........Since it is evident that the purpose of the suit is to try and establish the plaintiff''s right or some form of interest in respect of the North Mill, which is admittedly situated outside the jurisdiction, and the plaintiff insists on continuing with the first relief, this is a suit for land which is incapable of being proceed with in this Court.
Accordingly, GA No. 2516 of 2010 is allowed and CS No. 41 of 2010 is arrested as far as this Court is concerned. It will be open to the plaintiff to pursue the same claim before any other appropriate forum. The second defendant will also be entitled to costs assessed at 300 GM.
11. Hence this appeal by the plaintiff.
12. The defendant no. 2 has filed a cross-objection feeling aggrieved that the learned Judge has not dealt with the said defendant''s contention that the plaint discloses no cause of action. However, the cross-objection has not been seriously pressed.
13. It appears that in an earlier interlocutory application filed by the plaintiff the Learned Single Judge came to a prima facie finding that the suit was a ''suit for land'' and accordingly the learned Judge declined to pass any order on that application. On an appeal, the Division Bench was also of the prima facie opinion that the suit was a ''suit for land''. However, the Division Bench left the point open to be considered on the final hearing of the interlocutory application in which the appeal arose. Such interlocutory application has been withdrawn by the plaintiff sometime in December, 2010.
14. It is trite law that a prima facie finding at an interlocutory stage on a particular point is not binding at the time of that particular point being decided finally. Accordingly, the prima facie finding in the earlier orders of this Court dated 15th March, 2010 and 9th April, 2010 would have no conclusive bearing on the present appeal.
15. Before we consider the submissions made before us by the parties, let us briefly discuss as to what the phrase ''suit for land'' really means. In the Case of
16. In the case of
17. In the celebrated case of
"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 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."
18. In the case of
"The foundation for this Court holding that a suit for specific performance, where the only relief claimed is a decree for execution of a document of transfer and nothing else is not a suit for land, is first the principle that it is a suit for enforcing a contract where the court is required to act only in personam; secondly, the cause of action for such specific performance is not the cause of action for the recovery of land as such or recovery of possession of land as such and the fact that such will or may be the consequence is immaterial for the purpose; the cause of action for specific performance of a contract and not the cause of action for a titular or possessory claim for land; and thirdly, the context of Clause 12 of the Letters Patent in providing three basic tests for suits (i) for land, (ii) cause of action and (iii) place of residence or business of the defendant,--clearly indicates that where Courts are intended to act in equitable jurisdiction in personam it is the second or third test which has to be applied. The fact that a decree for specific performance will result in ultimate possession being given or obtained, does not convert it into a suit for land, for in that case the suit for land would not have been grouped as a class by itself apart from the class governed by the test of the cause of action or the test of the place of residence or place of business of the defendant in Clause 12 of the Letters Patent. Historically, as Fry points out in his celebrated work on Specific Performance, 6th Edition, page 7, the Old Common Law before equity in such cases commanded the Sheriff to deliver the land. Precisely because of that reason equity intervened to act in personam, so that now a decree for specific performance orders the defendant, or failing him this Court in his place, to execute a document of transfer. In modern jurisprudence and practice, this is now well settled. In Volume X, page 397 of Atkin''s Encyclopedia of Forms, the only prayer shown in the pleading is for specific performance and not for possession. Indeed, in the forms of the Civil Procedure Code, both the Forms are used, one for specific performance simpliciter and the other for joint claim for specific performance and possession.
We, therefore, hold that a suit where the plaintiff claims a decree for specific performance only, directing the defendant to execute and register a lease with alternative claim for damages is not a suit for land within the meaning of Clause 12 of the Letters Patent."
19. In the case of
20. Appearing before us in support of the appeal, Mr. Kapoor strenuously contended that prayer (a) of the plaint is one for cancellation of an agreement which does not include any prayer for possession. Hence prayer (a) cannot make the suit a ''suit for land''. Since prayers (b) and (c) have been given up by the plaintiff, the learned Judge erred in arresting the suit. Mr. Kapoor relied on the case of Debendra Nath Chowdhury (supra). He also relied on the decision of the Apex Court in the case of
"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 is necessary to refer to Section 22 of the Specific Relief Act, 1963 which runs:
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, 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.
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 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 clauses (a) and (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed. Thus it follows that no court can grant the relief of possession of land 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.
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 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.
21. Mr. Kapoor has also relied on the two Apex Court decisions reported in
22. Mr. Tilak Bose, learned Senior Counsel appearing on behalf of the respondents has taken us extensively through the plaint and has submitted that the primary object of the suit as reflected from the plaint has to be seen to determine as to whether or not the suit is a ''suit for land''. He submitted that on a meaningful reading of the plaint it will appear that the suit involves adjudication of title in respect of land situated beyond the territorial jurisdiction of this Court. The suit is not based on a mere cancellation of an agreement nor for a money decree. Mr. Bose has relied on the decision of the Apex Court in the case of
23. Mr. Bose also referred to the order dated 15th March, 2010 passed by the Learned Single Judge of this Court on an interlocutory application made by the plaintiff and to the order dated 19th April, 2010 passed by the Division Bench of this Court in an appeal arising from the order of the learned Single Judge. We have already adverted to the said orders in our judgment hereinabove.
24. We have considered the rival contentions of the parties. A ''suit for land'' is essentially a suit which involves direct adjudication of title and/or possession in respect of land or other immovable property. If a decree or order passed in a suit indirectly and/or consequentially affects title to and or possession in respect of land, the suit cannot be said to be a ''suit for land''. A suit for specific performance of a contract for sale of immovable property without any prayer for possession has been held to be not a ''suit for land'' by our Apex Court in Adcon Electronics Pvt. Ltd. (supra), although the decree in the suit may indirectly affect title to the concerned immovable property. By reverse analogy a suit for delivery up and cancellation of an agreement relating to immovable property without any prayer for possession should also not be a ''suit for land'' even though the decree in the suit may indirectly or consequentially affect title or possession to land. The Division Bench decision of this Court in the case of Debendra Nath Chowdhury (supra) also lends support to this view.
25. In view of the aforesaid, with the deepest regard we have for the learned Judge, we are unable to agree with His Lordship that in spite of plaintiff/appellant having given up prayers (b) and (c) of the plaint, prayer (a) of the plaint would still make the suit a ''suit for land''. The appeal succeeds. The judgment and order impugned is set aside. The plaintiff will be at liberty to proceed with its suit shorn of prayers (b) and (c) of the plaint. The cross-objection filed by the defendant no. 2 has not been seriously pressed. In any event, we do not find any merit in the grounds enumerated in the cross-objection. The cross-objection fails and is dismissed. In the facts and circumstances of the case there will be no order as to costs.
26. I agree.
