ORDER
1. The defendants are the Revision Petitioners and the Revision is against the order, by which, lower Court allowed the application for amendment of the plaint under [SECTION], [SECTION] of the [ACT].
2. The respondent herein as the plaintiff, has filed a suit for specific performance of agreement of sale dated 30-9-1988 against the defendants in respect of the property i.e., 34 guntas in Sy. No. 15/1 of Cholanayakana-halli Village, Kasaba Hobli, Bangalore North Taluka. In the plaint, the plaintiff has prayed for specific performance of the agreement of sale in question. In the plaint, it is alleged that there was an earlier agreement between the plaintiff and late [ENTITY], whose legal representatives are the defendants on 10-3-1982 and that the plaintiff was put in possession of the suit schedule property by her. That agreement could not be enforced as [ENTITY] died and after her death, the defendants entered into an agreement to sell the property to the plaintiff on 30-9-1988 by receiving further advance of Rs. 50,000/-. The possession of the Suit schedule property continued with the plaintiff which he obtained in pursuance to the agreement dated 10-3-1982 executed by [ENTITY].
3. The defendants filed a detailed Written statement. While they admitted the execution of the agreement in question, they disputed the correctness of the statement of the plaintiff with regard to delivery of possession of the property in question in his favour and the other allegations levelled against the petitioners were denied.
4. Thereafter, the plaintiff filed an application under [SECTION], [SECTION] of the [ACT] for amendment of the plaint seeking for alternate relief of giving benefits arising out of the acquisition of the property in question in the event the acquisition proceedings in respect of the suit schedule property is corppleted. In the application for amendment, it was sought to be brought out that the suit schedule property was proposed for acquisition and the final declaration was issued in the year 1989 for acquiring the land in favour of the Bangalore Development Authority. It is further alleged that the acquisition proceedings are not completed and the plaintiff continued to be in possession of the suit schedule property. It is alleged in the amendment application that a prayer has to be added to the effect that, in the event the land acquisition proceedings are completed by the Government, the plaintiff would be entitled for all the benefits arising out of the said acquisition. Accordingly, he prayed for amendment of the prayer by adding the prayer to the effect that in the event of the acquisition proceedings of the said property is completed and the scheme is implemented, the plaintiff is entitled for all the benefits arising out of the acquisition of the suit schedule property. This was sought to be added in the plaint as prayer (aa).
5. The defendants filed a detailed objections to the amendment application. But by an order dated 27-10-1995, the lower Court allowed the application for amendment. It is this order that is challenged in this Revision Petition.
6. It is contended by the learned Counsel for the petitioner that the preliminary notification is dated 2-6-1978 and that the declaration under [SECTION] of the [ACT] was published on 2-2-1989. It is submitted by the learned Counsel for the Revision Petitioner that the title to the suit schedule property vests in the defendants and that even assuming that there is an agreement of sale in favour of the plaintiff, he is not entitled to the benefits arising out of the land acquisition proceedings. In other words, it is contended that the plaintiff has no subsisting title to the property and that he is not entitled to the benefits arising out of the land acquisition proceedings and accordingly, the amendment should not have been allowed. In support of his contention, learned counsel for the revision Petitioner-defendants relied on a decision of the Supreme Court in [PRECEDENT]. In that case, a Notification under [SECTION] of the [ACT] was published on 17-11-1980, acquiring the lands in question and the Collector made an Award for a sum of Rs.38,500/-. The appellant putforth an agreement of sale dated 5-12-1991 contending that the respondents had received a consideration and kept the petitioner in possession of the land and that therefore, by operation of [SECTION] of the [ACT], the petitioner is entitled to the compensation. That contention was not accepted and the Supreme Court observed as follows (Para 2) :
"We are unable to agree with the learned counsel. In a reference, the dispute is to the title to receive the compensation. It is settled law that the agreement of sale does not confer title and, therefore, the agreement holder, even assuming that the agreement is valid, does not acquire any title to the property. It is seen that the agreement is subsequent to the notification under [SECTION]. The Government is to bound by such an agreement. The inter-se dispute is only with respect to the title as on the date of notification under [SECTION]. The respondent is the undoubted owner of the property as per [SECTION] notification and that, therefore, the compensation was directed to be paid to the respondent since he is one of the members. We cannot find any illegality in the order passed by the Courts. However, if the petitioner has got any claim under [SECTION] of the [ACT], it is open to him to take such action as open to him under law."
From the aforesaid decision of the Supreme Court, it is clear that holder of the agreement of sale does not obtain any title to the property and that he is not entitled to claim the compensation due under the [ACT] in respect of the land. It is no doubt true that the Supreme Court has left open the question the right of the petitioner therein for any claim under [SECTION] of the [ACT], but the former part of the Judgment is clear to the effect that the agreement holder is not entitled to claim any compensation in respect of the land, as admittedly, he was not the title holder of the date of [SECTION] Notification. In this case also, the agreement was subsequent to [SECTION] Notification which was admitted to be on 2-6-1978 and as such, the plaintiff may not be entitled to claim the compensation amount on the basis of the agreement of sale, if at all, in his favour.
7. The decision of the Supreme Court in [PRECEDENT], has no application to the facts of the case as the suit itself is originally for specific performance of the contract.
8. Learned Counsel for the respondent-plaintiff contended that, when the land is acquired during the pendency of the suit for specific performance of the contract and if the contract could not be enforced due to the acquisition of the land under the [ACT], he is still entitled to receive the compensation. It is his case that the agreement of sale became unenforceable not because of any fault on his part, but because of the intervention of the Land Acquisition proceedings and so he is entitled to the compensation amount in case he is entitled to specific performance of the contract. In support of this contention, he relied on a decision of the Supreme Court in [PRECEDENT], , but on a close reading of that decision, I am clearly of the opinion that the learned Counsel for the respondent-plaintiff is under misapprehension in regard to the scope and purport of the dictum laid down in that decision. In that case, a suit was filed for specific performance of an agreement of sale dated 3-7-1993 for reconveying the property for an amount of Rs. 15,000/- within two years. Based on that agreement, the suit for specific performance was filed. The Suit was dismissed by the trial Court and by the District Judge, but in the Second Appeal, the High Court reversed the finding of the two Courts below and allowed the Appeal and held that the respondent-plaintiff was ready and willing to perform the contract and that the respondent-plaintiff was entitled to a decree for specific performance.
9. During the pendency of the Second Appeal before the High Court, the State had initiated proceedings for compulsory acquisition of the suit properties. On this basis, it was contended before Their Lordships of the Supreme Court that the contract became incapable of specific performance in view of the fact that the subject matter of the suit itself ceased to be available. As the land was acquired during the pendency of the second Appeal before the High Court, it was contended that the plaintiff is not entitled to any relief. The High Court held that, by the acquisition of the land plaintiff's right do not get extinguished in totality and that appellate Court can suitably mould the relief which the circumstances of the case may require or permit. Consequently, the High Court gave a direction that, if the decree for specific performance of contract in question is found incapable of being executed due to acquisition of subject land, the decree shall stand suitably substituted by a decree for realisation of compensation payable in lieu thereof as may be or have been determined under the relevant Act. It was further provided that the plaintiff shall have a right to recover such compensation together with solatium and interest due thereon. It was further provided that, if the defendant had already realised the land acquisition amount, the plaintiff shall have a right to recover from the defendant.
10. Though the Supreme Court confirmed the finding of the Supreme Court that the plaintiff was entitled for specific performance, in regard to the decree passed in the case, the Supreme Court felt that the direction given by the High Court was not as such proper.
Their Lordships held that, if the subject matter of the suit for specific performance ceased to exist during the pendency of the suit, the contract became incapable of performance for no fault of the palintiff and the plaintiff is only entitled to compensation as provided for under [SECTION] of the [ACT]. Pointing out the difference between the English Law and the Indian Law, at page 1609, Their Lordships observed as follows :
"When the plaintiff by his option made specific peformance impossible, [SECTION] does not entitle him to seek damages. That position is common to both. [SECTION] of Lord [ACT] and [SECTION] of the [ACT]. But in Indian Law the contract, for no fault of the plaintiff, becomes impossible of performance. [SECTION] enables award of compensation in lieu and substitution of specific performance."
Thereafter, Their Lordships allowed the plaint to be amended and considered the question as to what is the quantum of compensation which the plaintiff is entitled. In that context. Their Lordships took into account the land acquisition compensation to be the measure of damages subject, of course, to the deduction therefrom of money value of the services, time and energy expended by the appellant in pursuing the claims of compensation and the expenditure incurred by him in the litigation culminating in the Award. The compensation due to the plaintiff was also fixed accordingly.
11. On the basis of the dictum in the aforesaid decision, learned Counsel for the Respondent persuaded me to take the view that the Supreme Court has taken the view that, when the subject matter of the suit for specific performance is acquired under the [ACT], during the pendency of the proceedings, the agreement holder is entitled to the compensation that is awarded under the [ACT]. I am afraid that, that is not the dictum laid down in the aforesaid decision. The Supreme Court proceeds on the basis that when the land is acquired during the pendency of the suit for specific performance, the agreement become incapable of performance. But Their Lord-ships have considered the position of law under the English Law and under the Indian Law as to what is the relief that can be granted to the plaintiff in such circumstances. Their Lordships held that, in spite of the land being acquired, the plaintiff is entitled to compensation as provided for under [SECTION] of the [ACT], for, the contract became unenforceable not due to any fault of the plaintiff. As stated earlier, Their Lordships further held that unlike the English law, under Indian Law, even in such circumstances, [SECTION] of the [ACT] enables awarding of compensation in lieu of and substitution of specific performance; the mere fact that Their Lordships took into account the compensation due under the land acquisition compensation as the measure of damages for fixing the compensation, does not mean that the plaintiff, in such a suit, is entitled to all the benefits which accrued under the land acquisition proceedings. The agreement holder cannot be substituted in the place of an owner. The agreement-holder, when his contract becomes unenforceable, is only entitled to compensation as provided for under [SECTION] of the [ACT] which the Court is entitled to determine taking into account the facts and circumstances of the case. No doubt, in considering the measure of damages, the compensation awarded under the [ACT] for the land may be a relevant factor. The aforesaid decision has not laid down the taw that the plaintiff in such a suit is to be substituted in the place of the land owner in regard to the compensation payable under the [ACT]. In that view of the matter, the aforesaid decision cannot help the respondent-plaintiff in contending that he is entitled to all the benefits arising under the Land Acquisition Proceedings.
12. In this case, the plaintiff sought for amendment of the plaint to add a prayer to the effect that he is entitled to all the benefits under the [ACT]. In the light of the decision of the Supreme Court, referred to earlier in [ENTITY]'s case, the plaintiff is not entitled to the benefits of the land acquisition proceedings. At best, he may be entitled to claim compensation under [SECTION] of the [ACT], in case, he is entitled to specific performance of the contract agreement and the Land Acquisition proceedings are completed and the agreement becomes incapable of performance thereby. But the application for amendment in this case is not for compensation under [SECTION] of the [ACT], but claiming the entire land acquisition compensation which he is not entitled to. Accordingly, the lower Court acted without jurisdiction in allowing the application for amendment filed by the plaintiff.
13. It is made clear that, if the plaintiff is entitled to specific performance of the contract and if the land is acquired during the pendency of the proceedings, he may be entitled to claim compensation under [SECTION] of the [ACT]. The [SECTION] provides that, where the plaintiff has not claimed any such compensation in the plaint, the Court shall, at any stage of the proceedings, allow him to amend the plaint on such terms as may be just to include such claim for compensation. The plaintiff may be entitled to get the plaint amended in accordance with [SECTION] of the [ACT], if he so choses to do, but, certainly a plaint cannot be amended by claiming the entire benefits arising out of the land acquisition proceedings. Accordingly, I make it clear that the decision in this Revision will not stand in the way of the respondent-plaintiff seeking appropriate amendment of the plaint in accordance with [SECTION] of the [ACT].
In the result, I allow this Civil Revision Petition, set aside the order of the lower Court dated 27-10-1995 and dismiss the application for amendment filed by the plaintiff, but the plaintiff will be free to file an appreciation for amendment seeking compensation in accordance with [SECTION] of the [ACT]. There will be no order as to costs.
14. Petition allowed.