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TMI Blog1992 (12) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be rejected outright by revocation of leave and whether the suit should be held to be a suit for land situate wholly outside the local limits of the Ordinary Original Civil Jurisdiction of this Court, which are the submission of the Defendants, the plaint has to be accepted as it stands. The Defendants have submitted that even on the basis, accepting the plaint as it is, the same would appear clearly to be a suit for land, and since the land is at Lake Road outside the local limits, the suit must forthwith fail and the leave already granted must be revoked. 3. The Plaintiff, on the other hand, has submitted that the suit is not a suit for land and is in reality a suit in personam, for such personal reliefs as grant of a decree of speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it for land or not would depend upon the terms of the agreement itself and several other factors. 7. It is settled law that a decree for specific performance of an agreement for sale of land simpliciter is not a suit for land although the same would ultimately cause a transfer of title of the land. The case of Debendra v. Southern Bank Ltd A.I.R. I960 Cal. 626 is an authority for this proposition. 8. There is, however, now a binding decision of the Supreme Court to this effect that the Plaintiff might elect to treat his prayer for specific performance as containing a prayer for possession of the land in respect of which specific performance is sought. That case is Baboo Lall v. Hazari Lall A.I.R. 1982 S.C. 818. 9. In case the agreement f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment given in Brijmohon Lall Rathi's case (4). 12. In the instant case before us there is no clause in the agreement which calls for delivery of possession subsequent to the agreement and possession, if any, that was to be had on the agreement was to be had at the time of execution of the presents. Execution of the agreement is admitted. 13. The Plaintiff, accordingly, has a choice in this case either to treat the claim for decree for specific performance of its agreement dated December 20, 1985, as containing a prayer for possession, inbuilt within it, or to treat it as a claim simpliciter for specific performance of the agreement. On the basis that the Plaintiff is in possession of the property (which has been submitted to be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly made only in aid of a final relief for a specific performance of an agreement for sale simpliciter. 15. The third ground on which the suit was sought to be made out as a suit for land was that a declaration in respect of the subsequent agreement of August 20, 1989, has been sought for; in that it is claimed to be void and it is claimed that the same should be delivered up and cancelled. It was submitted that as recorded in the said subsequent agreement an earnest money of Rs. 5,000 had been paid and under Section 55 (6)(b) of the Transfer of property Act the said earnest money from charge upon the land. It was argued that in case the claim for declaration of voidness and delivery up and cancellation was granted it would have the effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but in relation to an instrument brought about between persons who are Defendants in the suit in question. The perishing of any money change as a consequence thereof would be purely ancillary, and by no means the main object or primary purpose of the suit or the decree thereon. 18. It has also been argued on behalf of the Defendants that the subsequent agreement is a collusive and fraudulent agreement and that the earnest amount of Rs. 5,000 is mere pittance in relation to the total consideration amount of Rs. 16 lakh. On the other hand it has been argued on the part of the Defendants that the Plaintiff, though it had paid Rs. 50,000 as earnest money for its agreement, has taken back the money when it was tendered by account payee cheque a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he point is being decided by me rather than leaving the parties free for a second round of full arguments at a later stage. 21. The conclusion, accordingly, is that the suit is not a suit for land. Even if a portion only of the claims is a claim not for land, the suit would even then have survived for that portion in case the Plaintiff elected to leave the other portion out of the purview of the suit. The question, however, does not arise as the entirety of the suit is maintainable in this Court. 22. Under these circumstances, there will be no order on this application. Costs of this application are assessed at 500 Gm. but shall abide by the result of the suit. 23. All parties to act on a signed copy of this dictated order on the usual u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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