Dattatraya Tatya Kamble vs Waman Narayan Bhave

S.H. Kapadia, J.—All the above Writ Petitions are being disposed of by a common Judgment because the said Writ Petitions are against identical orders passed by the Executing Court viz., the Joint Civil Judge (S. D.), Thane in Special Darkhast Applications filed by the Decree holder in whose favour Special Civil Suit No. 96 of 1979 came to be decided on 30th June, 1987. The said Suit was filed u/s 6 of the Specific Relief Act, 1963.

Briefly the facts giving rise to these Writ Petitions are as follows :

(a) On 19th March, 1976 the Decree holder (who is a builder) purchased a plot in Court auction sale. The Petitioners herein are the purchasers of the flats who have entered into the Agreements with the Builder.

(b) On 16th September, 1976, the Builder took possession of the said plot.

(c) On 16th November, 1976, the Builder obtained sanction from the Municipality on the building plan which he had of the building.

(d) During the period December, 1976 the proposed flats were sold to various prospective buyers by the said builder.

(e) On 1st June, 1979 despite repeated promises given by the Builder and since the possession of the flats were not given to the Occupants it is alleged by the Builder that they forcibly took possession of the flats. In this connection, it may be mentioned that initially the builder had agreed to give possession on 30th November, 1977; that the Society of the Purchasers came to be registered on 19th January 1978; that in November, 1978 the Builder demanded certain extra amount from the purchasers, that he agreed to give possession by March, 1979. However, he could not give possession and the work remained incomplete as alleged by the Petitioners. Similarly, the Builder promised to give possession on 25th April, 1979 but it was not given; that on 29th April, 1979 once again on the promised date the possession was not given. On the contrary, on 29th April, 1979 the Builder demanded Rs. 58,000 from the total number of prospective buyers of the flats. There are approximately 38 members. On 11th May, 1979, ultimately about 34 out of 38 purchasers of the flats gave Final Notice through their Advocates to the builder calling upon him to handover possession of the flats which were replied to by the Builder vide letter, dated 21 st May, 1979. In the above circumstances, on 1st June, 1979 the said 34 purchasers forcibly occupied the flats in question as alleged by the Builder. Complaints were also made to the Police.

(f) On 9th July, 1979, 18 Suits u/s 6 of the Specific Relief Act came to be filed, in the Court of Joint Civil Judge (S. D.), Thane.

(g) On 3rd January, 1981, the Society of prospective buyers completed the work which was incomplete in respect of the said building. The said Society in fact obtained electricity and water connections.

(h) On 3rd January, 1991, the Society filed a Title Suit being Regular Civil Suit No. 9 of 1981 in the Court of Joint Civil Judge, (S.D.), Thane inter alia (or a declaration that the Society had become owners in respect of the property. The said Society also filed one more suit in the same Court on 1st January, 1981 being Regular Civil Suit No. 4 of 1981 for recovery of Rs. 1,99,000 (approximately) for doing the work which was required to be done by the Developer.

(i) On 30th June, 1987 the suits in the present proceedings filed by the Builder u/s 6 of the said Act were decreed in favour of the Builder. According to the Judgment in the suits u/s 6 of the Special Relief Act, the Court below came to the conclusion, in respect of each of the respective flats, that the Builder was dispossessed without his consent and without following due process of law and within six months prior to the date of the institution of the suit by the Developer. In the 18 suits separate decrees were accordingly passed and each of the occupants were directed to deliver possession of the respective suit flat/block to the Builder.

(j) On 31st July, 1989 against the said Decrees passed by the Court below on 30th June, 1987, the occupants filed 18 Writ Petitions in this Court being Writ Petition No. 3785 of 1987 upto Writ Petition No. 3802 of 1987. By the Judgment and Order dated 31st July, 1989 all the above 18 Writ Petitions came to be disposed of. While passing the Judgment, this Court took into account the fact that the Petitioners herein had in fact made an Application for interim relief in Regular Civil Suit No. 9 of 1981 restraining the Respondent/Builder from taking possession in execution of the Decree passed in suits filed u/s 6 of the Specific Relief Act. It was also made clear that the Trial Judge hearing the Title Suit No. 9 of 1981 shall not consider himself to be bound by the fact that this Court had restrained the Builder from taking possession in execution of the Decree u/s 6 of the Specific Relief Act. Accordingly, this Court directed that the above suits filed by the Society on Title and for recovery of the moneys should be heard and decided. Accordingly, the Order came to be passed permitting the Petitioners to withdraw the abovementioned Writ Petition Nos. 3785 of 1987 upto 3802 of 1987.

(k) On 31st August, 1989 the above Title Suit filed by the Society came to be decreed in favour of the Petitioners herein by Judgment passed by the Joint Civil Judge (S. D.), Thane. The Trial Court came to the conclusion that the builder had not kept his promise of handing over possession to the occupants; that he had asked for higher amounts from time to time under various heads; that the said demands were unauthorised and that ultimately in the above circumstances, the Petitioners herein took possession of the respective blocks. The trial Court observed that each of the occupants with their families were in physical possession of the building and the adjoining area. The trial Court also found that the Society had carried out the incomplete work which was required to be done by the Builder. At this stage, it may also be mentioned that the Builder contended before the trial Court in the Title Suit that the Plaintiff Society was not in possession of the land and that the flats was not occupied by the members of the Plaintiff Society. The trial Court found that the Defendant/Builder had admitted in evidence that there were no dues remaining payable from the Society or from individual purchasers of the flats and taking into account the fact that the purchasers had occupied the possession of their respective blocks there was no bar for filing the above Title Suit under the provisions of the Maharashtra Ownership Flats Act, 1963 read with provisions of Transfer of Property Act; that trial Court rejected the contention of the Builder that the possession of the purchasers of individual flats was not legal and that they had taken forcible possession from the Builder of their respective flats. The trial Court in the Title Suit also found that in a Declaratory Suit there was no bar imposed on the trial Court to decide the question about the legality of the possession of individual purchaser notwithstanding the fact that 18 suits came to be Decreed in favour of the Builder in the Suits u/s 6 of the Specific Relief Act. The trial Court also found, what Section 6 of the Specific Relief Act contemplated in summary trial. In the above circumstances, the trial Court came to the conclusion that since the Builder had agreed to handover individual blocks to the purchasers by specified date mentioned in the Agreements between the parties and since it was also admitted by the Builder that on the dates mentioned in the Agreements between the parties he was not able to handover possession of the blocks to the purchasers and since he has failed to do so, the possession of the occupants cannot be deemed to be unauthorised/ unlawful. The trial Court found that in view of Section 11 of the Maharashtra Ownership Flats Act, 1963, which require the Promoter to convey right, title and interest in the property and execute the document to complete his title and to convey the same to the organisation of persons with whom he had entered into an Agreement and since Section 11 of the said Act, 1963 was binding on the Builder and which required him to execute all the relevant documents in accordance with the Agreement executed u/s 4 of the said Act, the Court directed after moulding the relief that the Builder in the present case shall execute the Conveyance as required u/s 11 of the said Act, 1963. In view of the above facts, the trial Court came to the conclusion that since the entire amount of consideration has been paid by the Society as well as by the .individual purchasers to the Builder and since the purchasers occupied their flats as stated hereinabove it was clear that the entire title and the full ownership in respect of the property passed on to the Society and only execution of the Conveyance remained to be done. Accordingly, the Court declared that the ''Society had become the owners of the suit building bearing Tika No. 5, situated at C.T.S. No. 67 (part) and 68 (part) at Kharkar Ali, Thane, alongwith the structure standing thereon. Accordingly, the suit was decreed. At this stage it may be mentioned that the Builder has filed an Appeal against the Judgment and Order, dated 31st August, 1989 passed in the Title Suit. The said Appeal by pending before the Lower Appellate Court. In the above circumstances, the observations made by me hereinabove are only in justification of the Order in the present Writ Petition and they are not meant to be final and binding observations for the Lower Appellate Court before whom the Appeal filed by the Builder is pending.

(l) To complete the chronology of events, it may be mentioned that in view of the Decree passed in favour of the Builder on 30th June, 1987 in the said 18 Suits u/s 6 of the Specific Relief Act the above Darkhast proceedings came to be filed by the Builder seeking possession pursuant to the Judgment of the Civil Court in the above Suits.

(m) By the impugned Orders passed by the Executing Court all dated 28th June, 1990 in the various Special Darkhast Applications filed by the Builder (which are the subject-matter of each of the above 18 Writ Petitions), the present Writ Petitions are filed seeking to challenge 18 Orders in the said Darkhast Applications. For the sake of convenience the facts mentioned hereinabove are reproduced from the 1st Writ Petition No. 2273 of 1990. The impugned Orders in the said 18 Darkhast Applications are identical and which is not in dispute. By the impugned Order the Executing Court came to the conclusion that in view of the above facts, it is clear that there were two convicting decrees. One Decree was in favour of the Builder and the other in favour of the occupants in the Title Suits. The Executing Court came to the conclusion that the Decree holder/ builder was right in raising the contention that the Title Suit was only Declaratory in nature. There was no Decree for possession in favour of the Petitioners herein/occupants and there was no prohibitory order passed in the Title Suit against the Decree holder restraining the Decree holder from taking possession. The Executing Court therefore came to the conclusion that the Builder was entitled to take possession of the Suit property. The Executing Court also found that in the Title Suit the Society has not claimed any relief by way of injunction against the Decree holder/Builder restraining him from taking possession. At this stage it may be mentioned that Application for interim relief was made by the Petitioners herein in the Title Suit. However-since the Petitions were pending in this Court, there was no question of the Trial Court granting interim relief to the Society in the Title Suit. The Executing Court found that had the Title Suit contained the prayer for injunction the situation would have been otherwise. Since such a prayer was not there, there was no impediment as to why the Decree in Suit u/s 6 of the Specific Relief Act cannot be executed. Accordingly, the objections raised by the Petitioners herein as Judgment Debtors were overruled and the Executing Court directed Possession Warrant to be issued.

(m) Being aggrieved by the 18 Orders of the Executing Court in the above Darkhast Applications, the present Writ Petitions have been filed by each of the Occupants.

Mr. Manudhane, learned Counsel appearing on behalf of the Petitioners in the above Writ Petitions submitted that the Decree passed in Suits filed by the Builder u/s 6 of the Specific Relief Act stood extinguished or superseded in view of the subsequent Decree in the Title Suit No. 9 of 1981. Mr. Manudhane further submitted that the said Decree in Section 6 Suit became incapable of execution, in view of the subsequent Decree in the Title Suit. Mr. Manudhane submitted that in view of the Section 11 of the Maharashtra Ownership Flats Act, 1963 (hereinafter referred to as "the said Act, 1963") the Decree in the Title Suit has been correctly passed. He submitted that Section 11 require the Builder to convey the right, title and interest in favour of the Society in respect of the land and building particularly where Agreement between the Promoter and the prospective Purchasers of the flat is found to be validly executed u/s 4 of the said Act, 1963. Mr. Manudhane submitted that in the present case, the Civil Court was empowered to mould the relief in the above mentioned Title Suit filed by the Society particularly in the light of Section 11 of the said Maharashtra, Ownership Flats Act, 1963. Mr. Manudhane relied upon the large number of Judgments in support of his contentions. He further submitted that In the present case the Decree also became inexecutable particularly in view of the fact that the Society in whose favour Decree was passed in the Title Suit was not made a party in the Darkhast proceedings adopted by the Builder. He therefore, submitted that the execution proceedings were also bad and liable to be dismissed as the Society was not joined.

Mrs. Gokhale, the learned Advocate appearing for the Builder submitted that in the present case the Court below erred in granting a Decree for specific performance in the Title Suit filed by the Society. She submitted that an Appeal has been filed by the Builder against the Decree in the Title Suit. She further submitted that there was no prayer for injunction in the Title Suit filed by the Society and in the circumstances the Decree passed in favour of the Builder in the 18 Suits u/s 6 of the Specific Relief Act became executable. She further submitted that in the absence of the prayer for injunction there was no impediment by which the Decree in favour of the Builder could not have been executed. She further submitted that u/s 34 of the Specific Relief Act, 1963 in the absence of any pleading to the effect that the Society was ready and willing to comply with all the terms and conditions of the Agreement the Decree passed in the Title Suit in favour of the Society requiring the Builder to execute the Conveyance was not maintainable and it was bad in law. She further submitted that in any event the Appeal was filed by the Builder in which the said Decree had been stayed. She further submitted that in the above circumstances the Builder should be permitted to execute the Decree obtained by him in Section 6 Suits filed by the Builder against prospective buyers of the flats. Mrs. Gokhale also relied upon various authorities which I will discuss at the appropriate time.

In the present case, I find considerable merits in the contentions of Mr. Manudhane, learned Advocate appearing on behalf of the Petitioners in the above 18 Writ Petitions. Mr. Manudhane is right in submitting that the Decree in favour of the Builder in suits u/s 6 of the Specific Relief Act, 1963 became incapable of execution in view of the subsequent Decree in the Title Suits filed in favour of Society. In this connection it may be mentioned that as indicated hereinabove the Title Suits proceed on two basis. Firstly, that there was a valid Agreement between the parties viz., the Builder and the respective purchasers of the blocks; that the said Agreements were valid u/s 4 of the Maharashtra Ownership Flats Act, 1963; that under the said Agreements with the Builder possession was to be given to the Occupants by the Builder by specified dates which was not done; that on the contrary unlawful demands were made by the Builder from the occupants; that the possession was therefore taken by the occupants pursuant to the said Agreements and in the circumstances the Decree as sought by the Society came to be passed by the Trial Court. The matter is subjudice in the sense that Appeal is pending before the Lower Appellate Court I am conscious of the fact that the above observations are not to conclude the said Appeal filed by the Builder. Nonetheless the said observations are being made in the present peculiar circumstances of the case particularly because the Builder seeks to enforce the Decree against the Occupants of the flats which Decree he obtained by filing Suits u/s 6 of the Specific Relief Act. The question, therefore, which is also required to be examined as contended by the learned Counsel for the Petitioner is whether the earlier Decree became inexecutable. The answer is in affirmative, for the reason that the proceedings in the Title Suits stand on a larger footing as compared to proceedings u/s 6 of the Specific Relief Act. The Civil Court in the Title Suits is not precluded from coming to the conclusion that the possession of the occupants was pursuant to the Agreements between the Builder and the flat purchasers. The Civil Court is not precluded from coming to the conclusion that the Agreement was in accordance with the Section 4 of the Maharashtra Ownership Flats Act, 1963 and if that be the case then the Civil Court is not precluded from moulding the appropriate relief and directing the Builder/Officer of the Court to execute the Conveyance in favour of the Society in the said Title Suit. In this connection it may also be mentioned that as a general rule no plaintiff is entitled to a relief for which there is no pleading in the Plaint but when on the pleading and the issues and the evidence adduced the relief is required to be given then the general rule referred to above will not apply because it is the duty of the Court to grant the relief as the circumstances of the case may warrant. See Karam Dass and Others Vs. Som Parkash, . Mrs. Gokhale has stated hereinabove vehemently contended that in the present case, the suit No. 9 of 1981 is not instituted under the Specific Relief Act. She further contended that in the above circumstances, therefore, the Court below erred in directing the Builder to execute the Conveyance and the Court below erred in invoking Section 34 of the Specific Relief Act, 1963. There is no merit in the said, contention. Reading the Judgment of the Civil Court In the Title Suit as a whole, it has been held that in view of the Agreement between the parties being valid and in accordance with Section 4 of the Maharashtra Ownership Flats Act and in view of the fact that the possession was taken under the Agreement the trial Court has held that the said Suit No. 9 of 1981 is for enforcement of Section 4 and Section 11 of the Maharashtra Ownership Flats Act, 1963 and accordingly directed the Conveyance to be executed. The Conveyance ordered to be executed by the Court was u/s 11 of the Ownership Flats Act and not u/s 34 of the Specific Relief Act (vide para 46). The trial Court has found that the Society was entitled to declaration that it was the owner and therefore it was the duty of the Builder to execute the Conveyance under the Ownership Flats Act Mr. Manudhane submitted that the above suit directed Execution of the Conveyance u/s 11 of the said Ownership Flats Act which incorporates provisions of Town Planning Act and Specific Relief Act. He accordingly relies upon the case of S.S. Rajabathar Vs. N.A. Sayeed, in which the Madras High Court in a very lucid Judgment after considering the Judgments of the various High Courts held that even where a suit for specific performance of a contract has been decreed by the Court, the Executing Court while executing the Decree has jurisdiction to grant relief of possession being incidental to the execution of the Decree for specific performance of a contract for sale. In the above Circumstances, in the present case, when the Court has come to the conclusion that the Agreement was in accordance with the provisions of Maharashtra Ownership Flats Act, 1963, and when the Court comes to the conclusion that Section 11 of the Maharashtra Ownership Flats Act, 1963, is applicable the Court has to direct the Builder to execute the Conveyance and in such an event the Executing Court has the power to mould the relief and grant all the incidental relief thereto. In the above circumstances, there is also merit in the contention of Mr. Manudhane, learned Counsel for the Petitioners that the earlier decree obtained by the Builder in Section 6 suits became incapable of execution in view of the later Decree in the Title Suits filed by the Society. Mr. Manudhane also placed reliance on the Judgment of the Supreme Court in the case of Haji Sk. Subhan Vs. Madhorao, . In that case the Respondent filed a Suit for possession of certain land and the Respondent based his claim on his proprietary right to recover possession and not on the loss of possession on account of the Appellant dispossession him. The said suit of the Respondent was decreed. The decree was upheld by the High Court. The High Court came to the conclusion that the Respondent was entitled to the property. Between the closing of the arguments in the Appeal before the High Court and the delivery of the Judgment sometime elapsed. During this time the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 came into force. This fact was not brought to the notice of the High Court. The Respondent/Decree holder thereafter filed Execution Application for recovery of possession. However, the Judgment debtor objected to the delivery of the possession in favour of the decree holder on the ground that the Decree holder had no right to dispossess the Judgment Debtor in view of the intervening Act of 1950. Under the above circumstances matter carne to the Apex Court. The Supreme Court in the said case of Haji Sk. Subhan (supra) has held that any right which accrued to the Decree holder in the suit for possession stood extinguished by reason of statutory consequences following the vesting of the proprietary rights in the State. One such right of the Decree holder was the right to obtain possession. Such a Decree for possession was the result of the recognition of the proprietor''s right of possession as proprietor since the proprietary rights vested in the said Decree became inexecutable. Placing reliance on the ratio of the Judgment of the Supreme Court in the case of Haji Sk. Subhan (Supra), Mr. Manudhane contended that in the present case the Decree in favour of the Builder u/s 6 of the Specific Relief Act became inexecutable in view of the later Decree in the Title Suit which has not only declared that the Society was the owner of the property but it has also declared that the possession taken by individual flat purchasers was in accordance with the Agreement with the Builder and in accordance with the provisions of the Maharashtra Ownership Flats Act, 1963. Mr. Manudhane also relied upon the Judgment of the Supreme Court in the case of Sri Vidya Sagar Vs. Smt. Sudesh Kumari and Others, . This was the case arising u/s 47 of the Code of Civil Procedure. In that case the short question which arose for consideration, was whether the Decree for pre-emption obtained prior to coming into force the U. P. Zamindari Abolition and Land Reforms Act, 1950 survives for execution after enforcement of the Act. The answer was in the affirmative. The Supreme Court held that the Decree for recovery of possession was incapable of execution after the Act of 1950 came into force. The Supreme Court in the said case relied upon the Judgment of the Supreme Court in the case of Rana Sheo Ambar Singh v. Allahabad Bank Limited AIR 1961 SC 1730. In that case the Appellant executed a simple mortgage of his proprietary interest in the estate. While execution proceedings were pending U. P. Zamindari Abolition Act, 1950 came into force. As a result of the said Act, the Zamindari rights of the Judgment debtor were abolished. In the above circumstances, the Supreme Court came to the conclusion that the Decree obtained for possession stood inexecutable in view of the subsequent enactment of the Zamindari Abolition Act, 1950. In the above circumstances, I find merit in the contentions advanced on behalf of the Petitioners.

However, Mrs. Gokhale has placed reliance on various Judgments of the High Court in support of her contentions that in a Title Suit the Court below erred in giving the Decree for specific performance. She submitted that the Decree passed in favour of the Society was bad-in-law. She further submitted that the Decree in favour of the Builder in suits u/s 6 of the Specific Relief Act permitted the Builder to take possession. She relied upon the Judgment of this Court in the case of Atmaram Panduji Tidke Vs. Prabhawatibai Dattatraya Pakode and Others, . This Judgment only lays down the true scope of the Section 6 of the Specific Relief Act. It does not deal with the situation which arises in the present case as to whether the Decree passed in such a suit became inexecutable in view of the Decree passed in favour of the Society in the Title Suit. The Judgment of this Court in the case of Atmaram Panduji Tidke (supra) only lays down that in proceeding u/s 6 of the Specific Relief Act only question for determination is whether the Plaintiff was in possession within six months prior to the date of the suit and whether he has been dispossessed within that period. It is further laid down that the Suit u/s 6 of the Specific Relief Act is of a summary nature as no question of title is involved and no Appeal lies from that decision. It also laid down that the decision of the Civil Court u/s 6 of the Specific Relief Act cannot decide the question of status person dispossessing or the title of the Plaintiff is not involved. These are well-settled principles of law. There is no dispute about the scope of Section 6 of the Specific Relief Act. On the other hand, it supports contention of Mr. Manudhane to the effect that the title suit in the present case declares the Society to be the owner of the property. It declares that the Society was entitled to Conveyance in its favour by virtue of Section 11 of the Maharashtra Ownership Flats Act, 1963 and the possession which the flat owners obtained was in pursuance of the Agreements u/s 4 of the said Maharashtra Ownership Flats Act, 1963. In the circumstances, as long as the Decree in Title Suit filed by the Society holds the field, the Decree passed in the 18 suits in favour of the Builder u/s 6 of the Specific Relief Act are inexecutable. It is made clear that it is for the Lower Appellate Court to go into the merits of the validity of the said Decree. The above observations are only made in justification of my reasoning to the effect that the earlier Decree obtained by the Builder was inexecutable as long as the later Decree in the Title Suit operates and in the circumstances the Darkhast Applications at this stage was not maintainable. One more fact may also be mentioned that the Society was not in fact made a party in the Darkhast proceedings instituted by the Decree holder/Builder. This is one more reason for coming to the conclusion that the impugned Order passed by the Executing Court was not binding on the Society in whose favour a Declaration has been made by the Court below in the Title Suit. Mrs. Gokhale also relied upon the Judgment in the case of Lakhmi Chand Vs. Sarla Devi, , wherein it as been held that the tenant obtaining Decree for possession of the premises against the landlord in proceeding u/s 6 of the Specific Relief Act cannot be restrained by the landlord from executing the Decree for possession or the ground that the landlord had subsequently instituted a Suit for perpetual injunction against the tenant/decree holder. In the present case such a situation does not arise. In the present case, the suit was filed by the Society which was Title Suit in which, as of today, a Decree is passed in favour of the Society based on the provisions of Sections 4 and 11 of the Maharashtra Ownership Flats Act. In the above circumstances, the ratio of the Judgment of the Punjab and Haryana High Court in the case of Lakhmi Chand (supra) also will not apply. Similarly, the ratio of the Judgment of this Court in the case of Pandhari Shamrao Kolhe v. Meerabai wd/o Laxman Kolhe and Ors. 1980 Mh. L, J. 39 will also not apply to the facts of the present case. In that case it has been held by this Court that the Civil Court is precluded from considering the title of the Defendant in a Suit u/s 6 of the Specific Relief Act. and that the claim of title by the defendant would be outside the pale of controversy. The relative titles of the parties are kept intact and they are not affected by the decision of the Court in the suit u/s 6 of the Specific Relief Act. There is no dispute about the scope of Section 6 of the Specific Relief Act. In the above circumstances the Judgment of this Court in the case of Pandhari S. Kolhe (supra) will also have no application to the facts of the present case.

For the foregoing reasons, I find considerable merits in the contentions of the Petitioners. As long as the Decree in the Title Suits filed by the Society stands the Decrees passed in favour of the Builder pursuant to the 18 suits filed u/s 6 of the Specific Relief Act were inexecutable. The Executing Court has not appreciated the position in law. The Executing Court erred in passing the impugned Order dated 20th June, 1990 in the above mentioned Special Darkhast Applications filed by the Builder pursuant to the Decrees obtained by him in the 18 Special Civil Suits filed against the Occupants.

Accordingly, Rule is made absolute in terms of prayer (a). However, in the facts and circumstances of the case, the parties will bear their own costs of this Writ Petition.