ROHIT KOCHHAR versus VIPUL INFRASTRUCTURE DEVELOPERS LTD. & ORS.
[2024] 11 S.C.R. 1289, Supreme Court of India, 2024
Outcome: Dismissed (Dismissed)
Segment: Issues
[2024] 11 S.C.R. 1289 : 2024 INSC 920
Rohit Kochhar 
v. 
Vipul Infrastructure Developers Ltd. & Ors.
(Special Leave Petition(Civil) No(s). 10169-10171 of 2008)
26 November 2024
[J.B. Pardiwala and R. Mahadevan, JJ.]
Issue for Consideration
Whether the relief sought by the plaintiff in respect to the suit 
property can be entirely obtained through the personal obedience of 
the defendants warranting the application of the proviso to Section 
16 of the Code of Civil Procedure, 1908.
Headnotes†
Code of Civil Procedure, 1908 – Proviso to s.16 – When not 
applicable – Suit for specific performance of the contract in 
respect of the suit property situated in Gurugram, filed in 
the Delhi High Court – Single Judge held that the suit was 
maintainable in view of proviso to s.16 – Appeals filed by 
the defendants were allowed by Division Bench, plaint was 
directed to be returned to the plaintiff to present it before the 
appropriate court having territorial jurisdiction to try the suit 
for specific performance – Correctness:
Held: No error committed by High Court in passing the impugned 
orders – s.16 deals with territorial jurisdiction of the courts and 
inter alia provides that suits for recovery, partition, foreclosure, for 
determination of any other right or interest in immovable property are 
to be instituted in the court within whose jurisdiction the property is 
situate – The proviso to s.16 however, provides that a suit to obtain 
relief respecting, or compensation for
wrong to, immovable property 
held by or on behalf of the defendant, may where the relief sought 
can be entirely obtained through his personal obedience be instituted 
either in the Court within whose jurisdiction the property is situate, 
or in the Court within whose jurisdiction the defendant resides, or 
carries on business, or personally works for gain – A suit for specific 
performance and delivery of possession is covered under clause 
(d) to s.16 and thus the parties, even by agreement, cannot confer 
territorial jurisdiction on a court within whose territory the subject
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matter is not situated – Proviso to s.16 would be applicable to a 
case where the relief sought by the plaintiff can be obtained through 
the personal obedience of the defendant, that is, the defendant has 
not to go out of the jurisdiction of the court at all for the purpose of 
the grant of relief – However, since the present case would require 
the defendants to go to Gurugram for the purpose of execution of 
the sale deed, hence the proviso to s.16 will not be applicable – 
Further, it is clear from the terms of the alleged contract between 
the parties that the transfer of possession of the suit property is 
implicit in the said contract and absence of a specific prayer seeking 
transfer of possession would not have any bearing on the character 
of the suit, which is one covered by s.16(d) – Transfer of Property 
Act, 1882 – s.55. [Paras 13, 18, 21, 33]
Specific Relief Act, 1963 – s.22 – Import of – Discussed. 
[Paras 22-30]
Case Law Cited
Adcon Electronics Pvt. Ltd. v. Daulat and Another [2001] Supp. 3 
SCR 29 : (2001) 7 SCC 698; Babu Lal v. Hazari Lal Kishori Lal 
and Others [1982] 3 SCR 94 : (1982) 3 SCR 94; Harshad Chiman 
Lal Modi v. DLF Universal Ltd. [2005] Supp. 3 SCR 495 : (2005) 7 
SCC 791; Babasaheb Dhondiba Kute v. Radhu Vithoba Barde, 2024 
INSC 122; Excel Dealcomm (P) Ltd. v. Asset Reconstruction Co. 
(India) Ltd. [2015] 4 SCR 948 : (2015) 8 SCC 219 – referred to.
P.M.A. Velliappa Chettiar v. Saha
Govinda Doss AIR 1929 Mad 
721 – referred to.
Messrs. Moolji Jaitha and Co. v. Khandesh Spinning and Weaving 
Mills Co. Ltd. AIR 1950 FC 83 – referred to.
List of Acts
Code of Civil Procedure, 1980; Specific Relief Act, 1963
List of Keywords
Suit for specific performance; Suit property situated in Gurgaon/
Gurugram, Suit filed in Delhi High Court; Territorial jurisdiction; 
To try the suit; Local limits; Court within whose jurisdiction the 
property is situate, Court within whose jurisdiction the defendant 
actually and voluntarily resides, carries on business, or personally
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works for gain; Personal obedience of the defendants; Delivery of 
possession; Court within whose territory the subject matter is not 
situated; Transfer of possession of the suit property; Absence of 
specific prayer seeking transfer of possession; Character of the 
suit; Plaint returned to be presented before the court of competent 
jurisdiction; willingness and readiness; Flat Buyers Agreement; 
Immovable property; in rem; in personam; Maxim “equity acts in 
personam.”
Case Arising From
EXTRAORDINARY APPELLATE JURISDICTION: Special Leave 
Petition (Civil) No(s). 10169-10171 of 2008
From the Judgment and Order dated 11.03.2008 of the High Court 
of Delhi at New Delhi in FAO Nos. 196, 197 and 205 of 2005
Appearances for Parties
Kunal Verma, Somiron Borkataky, Ms. Yugandhara Pawar 
Jha, Ishvaaku Marwah, Saurav Kumar, Ms. Lavanya Dhawan,  
Ms. Yasha Goyal, Advs. for the Petitioner.
Ankit Virmani, Ajit Pudussery, Krishen Tewary, Ms. Ruchika 
Agarwala, Ashutosh Bamezai, Ms. Mayuri Raghuvanshi, Manish 
Sharma, Vyom Raghuvanshi, Ninad Dogra, Adya Rao, Advs. for 
the Respondents.
Judgment / Order of the Supreme Court
Order
1.	
These petitions arise from a common order passed by a Division 
Bench of the High Court of Delhi dated 11.03.2008 in FAO(OS) 
Nos.196-197/2005 and FAO(OS) No.205/2005 respectively, by which 
the appeals filed by the respondents herein came to be allowed and 
the plaint was
ordered to be returned to the petitioner herein for 
presenting it before the appropriate court having territorial jurisdiction 
to try the suit for specific performance.
2.	
The petitioner herein, who is the original plaintiff, instituted Civil 
Suit No.1138/2004 in the Delhi High Court on its original side for 
permanent injunction and specific performance of the contract dated
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16/20.01.2004 entered into with the respondents herein, the original 
defendants, in connection with a commercial property admeasuring 
10,747 sq. ft. situated on the second floor of the Fortune Global Hotel 
& Commercial Complex in Gurgaon (“suit property”). 
3.	
It is the case of the plaintiff that sometime in September 2003, the 
original defendant no. 2 offered to sell to it commercial space of 
approximately 10,000 sq. ft. on the second floor of the commercial 
complex of the Fortune Hotel and Commercial Complex project 
which was being developed by the defendants. After discussions and 
negotiations regarding the same, a written communication was received 
by the plaintiff on 16.01.2004 containing the aforesaid offer in relation 
to the suit property and the terms and conditions for the transaction. 
4.	
The offer was accepted by the plaintiff vide letter dated 20.01.2004 
and a cheque dated 20.01.2004 for Rs 20,000,00/- was issued by 
the plaintiff in favour of original defendant no. 3 in furtherance of the 
said acceptance. Further payment of Rs 20,000,00/- was made by 
the plaintiff on 06.02.2004. 
5.	
Thereafter, disputes cropped up between the parties regarding certain 
terms contained in the “Flat Buyers Agreement”. It is the case of 
the plaintiff that despite several attempts on its part to negotiate 
the terms of the said agreement so as to arrive at a settlement, the 
defendants insisted upon unreasonable,
arbitrary and unconscionable 
terms with a view to wriggle out of their liability arising out of the 
binding contract dated 16/20.01.2004. 
6.	
Aggrieved by the defendant’s alleged refusal to honour the binding 
contract despite the expression of willingness and readiness by the 
plaintiff on multiple occasions, the plaintiff instituted the aforesaid 
suit for specific performance and permanent injunction. 
7.	
The defendants in their written statements, inter alia, raised a 
preliminary objection as regards the territorial jurisdiction of the 
Delhi High Court to entertain the suit instituted by the plaintiff. The 
defendants submitted that there was no concluded and binding 
contract between the parties and the letters dated 16.01.2004 and 
20.01.2004 respectively were only a part of the ongoing discussion 
and negotiations between the parties in relation to the suit property. 
The letter dated 16.01.2004 was only a letter of intent and was to be 
followed by a property buyer agreement to be signed by the plaintiff
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which would contain detailed terms and conditions regarding the 
sale of the suit property. Further, in the alternative, the defendants 
submitted that the plaintiff failed to show his readiness and willingness 
to pay the balance amount at any point in time and thus cannot seek 
specific performance of the contract. 
8.	
The learned Single Judge vide its order dated 25.04.2005 overruled 
the objection raised by the defendants as regards the territorial 
jurisdiction and took the view that it had the jurisdiction to entertain 
the suit. The Court took the view that as the plaintiff was seeking 
the relief of specific performance simpliciter and had not prayed 
for a decree to put him in possession of the suit property, such a 
relief could be granted and enforced by the personal obedience of 
the vendor and thus the Court in whose territorial jurisdiction the 
vendor resides or carries on business or works for gain would have 
the jurisdiction to entertain the suit. 
9.	
Placing reliance on the decision of this Court in Adcon Electronics 
Pvt. Ltd. v. Daulat and Another reported in (2001) 7 SCC 698, the 
Single Judge drew a distinction between a suit relating to specific 
performance of a contract for sale of immovable property simpliciter 
and a suit where additional claim for delivery is prayed for, and 
observed that a suit of the former category, that is, one for the 
enforcement of
contract of sale and for execution of a conveyance, 
cannot be said to be a suit for determination of title to land or that the 
decree in it would operate on the land. The Court further observed 
that Section 22 of the Specific Relief Act has been specifically held 
to be an enabling provision by the decision in Adcon Electronics 
(supra) and thus the observations made by this Court in Babu Lal 
v. Hazari Lal Kishori Lal and Others reported in (1982) 3 SCR 94 
would not be applicable to the facts of the present case as the issue 
has been directly answered by the decision in Adcon Electronics 
(supra). The relevant observations made by the Single Judge are 
extracted hereinbelow: 
“28. I need not, therefore, deal with the various decisions 
of this Court and other High Courts relied upon by Counsel 
for the defendants for the reason that the decision of the 
Supreme Court in Adcon Electronic’s case (supra) holds the 
field. The said decision has taken into account Section 22
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of the Specific Relief Act. Decision categorically holds that 
a suit seeking specific performance of an agreement to sell 
simplicitor even if it relates to immovable property is not 
a suit in which the relief claimed relates to title or to land. 
The suit is for enforcement of terms of contract. Decision 
categorically holds that it is at the option of the plaintiff to 
seek delivery of possession. Decision categorically holds 
that unless possession of immovable property is specifically 
prayed for, suit could be instituted within the local limits of 
the Court having jurisdiction where the defendant resides, 
carries on business or personally works for gain.
29.Section 55 of the Transfer of Property Act is also an 
enabling provision and need not be enforced by the buyer.
30. In respect of the submission made by Counsel for the 
defendants Pertaining to the provisions of Order 2 Rule 2 
of the Code of Civil Procedure, the point that the rule is 
directed to secure the exhaustion of the reliefs in respect 
of a cause of action and not to the inclusion in one and 
the same action, different causes of action, even though 
they arise from the same transaction (see decision of Privy 
Counsel reported as 26 IC 228, Payana v. Panna Lal) has 
been lost sight of by Counsel.
31. Order 2 Rule 2 is aimed against multiplicity of the suits 
in respect of same cause of action. Complete identity of 
cause of action and various
reliefs flowing therefrom has 
not to be confused with various causes of action which 
may accrue under same transaction.
32. A vendee may be happy to gain title to immovable 
property at the pains of the vendor having lost title and 
since possession was pursuant to title, being labelled as 
an unauthorised occupant if after execution of sale deed 
and possession being required to the delivered refuses to 
do so. In such eventuality, the vendor would be liable to 
pay damages/mesne profits for unauthorised occupation. 
This would be an entirely separate cause of action post-
execution of the sale deed.
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33. I accordingly decide the objection raised by the 
defendants against them. It is held that this Court has 
jurisdiction to entertain the suit.”
10.	 The defendants, being aggrieved by the order passed by the learned 
Single Judge, preferred three appeals before a Division Bench of 
the High Court under Section 10 of the Delhi High Court Act, 1966. 
11.	 The Division Bench of the High Court allowed the appeals and 
ordered the plaint to be returned to the plaintiff in accordance with 
law so as to be presented before the court of competent jurisdiction.
12.	 The Division Bench of the High Court in its impugned order took 
into consideration the provisions of Section 16 of the Code of Civil 
Procedure, 1908 as also Section 55 of the Transfer of Property Act, 
1882 and recorded the following findings:-
“18. In the present case, it is an admitted position that 
the appellant had entered into the aforesaid alleged 
contract at its Corporate office at Delhi. It is the specific 
stand of the appellant that they were initially residents 
of Delhi and that they had moved to Gurgaon and their 
corporate office is now also located at Gurgaon. It is the 
contention of the counsel appearing for the respondents 
that the proviso to Section 16 of Code of Civil Procedure 
is applicable which is sought to be invoked, for, the 
relief which is sought for could be entirely enforced 
through the personal
obedience of the defendants in 
Delhi. There is however not only a prayer in the plaint 
for declaration of the right and title, but also to transfer 
the right, title and interest in the suit premises situate 
at Gurgaon. As, in our opinion, the suit can be decreed 
in favour of the plaintiff only when the Court can get 
the sale deed executed and registered in favour of the 
plaintiff which would confer the title of the suit premises 
on the plaintiff, and the execution and the registration of 
the sale document would have to take place at Gurgaon 
and, for this the Court will also have to pass a decree 
directing the defendant to get the sale deed executed 
and registered at Gurgaon, implication of the same will 
be that a direction will have to be given to the defendant
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that he shall have to move out of Delhi and go to Gurgaon 
and get the same registered. No sale deed is sought to 
be registered at Delhi and, therefore, in our considered 
opinion such a relief cannot be entirely obtained through 
the personal obedience of the defendant, who in this case 
has to go to the jurisdiction of another court to get the 
decree executed and the sale deed registered.
19. Accordingly, we are of the considered opinion that the 
submissions of the learned counsel for the respondent 
and the findings recorded by the learned Single Judge 
that the present case is covered by the proviso of Section 
16 of the Code of Civil Procedure are misplaced. In the 
facts and circumstances of the case as delineated, the 
relief in the present suit cannot be entirely obtained 
through the personal obedience of the defendants. The 
proviso to Section 16 of the Code of Civil Procedure 
would be applicable to a case where the relief sought 
for by the plaintiff was entirely obtainable through the 
personal obedience of the defendant, i.e., the defendant 
has not at all to go out of the jurisdiction of the Court for 
the aforesaid purpose. The present case is not a case of 
the aforesaid nature. In the present case for execution of 
the sale deed the defendants will have to go out of the 
jurisdiction of this Court and get the same executed and 
registered in Gurgaon.
20. In the present case also it is an admitted
position that 
possession of the said property was with the seller and, 
therefore, in terms of the provisions of Section 55(1) of the 
Transfer of Property Act, 1882, the relief of possession is 
inherent in the relief of specific performance of the contract. 
In our considered opinion the ratio of the decision of the 
Supreme Court in Babu Lal(supra) and the principles laid 
down in the case of Harshad Chiman Lal Modi (supra) are 
applicable to the facts of the present case. In Harshad 
Chiman Lal Modi (supra) it was found that in addition to 
passing decree, the court was also required to deliver 
possession of the property. It was held that such a relief 
can be granted only by sending the concerned person
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responsible for delivery of possession to Gurgaon and 
the court at Delhi does not have the jurisdiction to get the 
aforesaid decree enforced for the property situate outside 
territorial jurisdiction of Delhi High Court. The Court while 
referring to the provisions of Section 16 of the CPC held 
that the location of institution of a suit would be guided 
by the location of the property in respect of which and 
for determination of any right or interest whereof the suit 
is instituted. The proviso to Section 16 CPC is also not 
applicable to the case, as the relief sought for cannot be 
entirely granted or obtained through the personal obedience 
of the respondent.
21. The decision of the Supreme Court in the case of 
Adcon Electronics Pvt. Ltd. v. Daulat and Another (2001) 
7 SCC 698, relied upon by the respondents, would also 
not be applicable to the facts of the present case. The said 
decision was rendered in the context of the expression 
“suit for land”. The Supreme Court in the said decision 
held that suit for specific performance of an agreement 
for sale of the suit property, without a claim for delivery of 
possession, cannot be treated as a “suit for land” and is, 
therefore, triable under clause 12 if the other conditions 
thereunder are fulfilled. The facts of the said case are, 
therefore, distinguishable and are not applicable to the 
case in hand. The said decision was
rendered due to 
specific provision therein and it is also apparent from the 
fact that the case of Babu Lal(supra) was not even referred 
to in that case.
22. Another decision of the Supreme Court which needs 
reference at this stage is the case of Begum Sabiha Sultan 
v. Nawab Mohd. Mansur Ali Khan and others (2007) 4 
SCC 343. In para 12 of the said judgment it was held 
by the Supreme Court that reading the plaint as a whole 
in this case, there cannot be much doubt that the suit is 
essentially in relation to the relief of partition and declaration 
in respect of the properties situate in Village Pataudi, 
Gurgaon, outside the jurisdiction of court at Delhi. In that 
view of the matter it was also held that the Delhi Court 
will have no jurisdiction to try and decide the aforesaid
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suit. It was also held in the said decision by following the 
decision of Harshad Chiman Lal Modi (supra) that the relief 
of partition, accounting and declaration of invalidity of the 
sale executed in respect of immovable propertied situated 
situate in village Pataudi, Gurgaon could not entirely be 
obtained by personal obedience to the decree by the 
defendants in the suit. It was further held that applying 
the test laid down therein, it is clear that the present suit 
could not be brought within the purview of the Section 16 
of the Code or entertained relying on Section 20 of the 
Code on the basis that three out of the five defendants 
are residing within the jurisdiction of the court at Delhi.
23. In view of the above facts and circumstances, we are 
of the considered opinion that the Delhi court would not 
have the territorial jurisdiction to  entertain and decide the 
aforesaid suits. Consequently, we hold that the decision 
rendered by the learned Single judge cannot be upheld. 
The same is accordingly set aside and quashed.
24. The appeals are allowed accordingly, the plaint be 
returned to the plaintiff in accordance with law.”
13.	 Having heard the learned counsel appearing for the parties and 
having gone through the materials on record, we are of the view 
that no error not to speak of any error of law could be said to have 
been committed by the High Court in passing the impugned orders.
14.	 Section 16
of the CPC deals with territorial jurisdiction of the courts 
and provides that suits for recovery or partition of immovable property 
or for foreclosure, sale or redemption in the case of a mortgage of 
or charge upon immovable property or for determination of any other 
right to or interest in immovable property, or for compensation for 
wrong to immovable property, or for recovery of movable property 
actually under distraint or attachment, shall be instituted in the court 
within the local limits of whose jurisdiction the property is situate. 
Further, the proviso provides that a suit to obtain relief respecting, 
or compensation for wrong to, immovable property held by or on 
behalf of the defendant, may where the relief sought can be entirely 
obtained through his personal obedience be instituted either in the 
Court within the local limits of whose jurisdiction the property is 
situate, or in the Court within the local limits of whose jurisdiction the
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defendant actually and voluntarily resides, or carries on business, 
or personally works for gain.
15.	 Thus, the pivotal question before us is whether the relief being sought 
by the plaintiff in respect to the suit property can be entirely obtained 
through the personal obedience of the defendants. If yes, then the 
facts of the present case would warrant the application of the proviso 
to Section 16 of the CPC and the High Court on its original side 
would be competent to entertain the suit instituted by the plaintiff. 
16.	 This Court in Harshad Chiman Lal Modi v. DLF Universal Ltd. 
reported in (2005) 7 SCC 791 observed that Section 16 of the CPC 
recognises a well-established principle that actions against res or 
property should be brought in the forum where such res is situate. 
A court within whose territorial jurisdiction the property is not situate 
has no power to deal with and decide the rights or interests in such 
property. In other words, this Court held that a court has no jurisdiction 
over a dispute in which it cannot give an effective judgment. 
17.	 On the proviso to Section 16, the Court observed that the proviso, 
no doubt, states that though the court cannot, in case of immovable 
property situate beyond jurisdiction, grant a relief in rem still it can 
entertain a suit where relief sought can be obtained through the 
personal obedience of the defendant. The proviso
is based on a well-
known maxim “equity acts in personam”, recognised by the Chancery 
Courts in England. The Equity Courts had jurisdiction to entertain 
certain suits relating to immovable properties situated abroad through 
personal obedience of the defendant. The Court observed that the 
principle on which the maxim was based was that the courts could 
grant relief in suits relating to immovable property situated abroad 
by enforcing their judgments by process in personam i.e., by arrest 
of the defendant or by attachment of his property. 
18.	 The Court held that a suit for specific performance and delivery of 
possession was covered under clause (d) to Section 16 of the CPC 
and thus the parties, even by agreement, cannot confer territorial 
jurisdiction on a court within whose territory the subject matter is 
not situated.  
19.	 Recently, this Court in Babasaheb Dhondiba Kute v. Radhu Vithoba 
Barde reported in 2024 INSC 122 held that the conveyance by way 
of sale would take place only at the time of registration of a sale
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deed in accordance with Section 17 of the Registration Act, 1908. 
Till the time of such registration, no conveyance could be said to 
have taken place.
20.	 Thus, even if the suit for specific performance is decreed without a 
specific decree for transfer of the possession of the suit property, 
the same can be enforced only when the trial court directs the 
defendants to convey the suit property to the plaintiff by getting a 
sale deed registered with respect to the suit property, as it is only 
after registration that the transfer of title would take place from the 
defendants to the plaintiff. The registration of the sale deed in the 
present case would have to take place at Gurugram as the suit 
property is situated there. The sale deed is not sought to be registered 
at Delhi and the implication of the grant of specific relief would be 
that the trial court will have to direct the defendants to move out of 
Delhi and go to Gurugram to get the sale deed registered. As rightly 
held by the Division Bench of the High Court, such a relief cannot 
be obtained entirely by the personal obedience of the defendants 
as the defendants will have to go to the jurisdiction of another court 
to get the decree executed. 
21.	 We agree with the view expressed by the High Court in the impugned 
order that the proviso to Section 16 would be applicable to a case 
where the relief sought by plaintiff can be obtained through the
personal obedience of the defendant, that is, the defendant has not 
to go out of the jurisdiction of the court at all for the purpose of the 
grant of relief. However, since the present case would require the 
defendants to go to Gurugram for the purpose of execution of the 
sale deed, hence the proviso to Section 16 of the CPC will not be 
applicable. 
22.	 It is also necessary to understand the true import of Section 22 of 
the Specific Relief Act for a better appreciation of the issue before 
us. The said provision provides that any person suing for specific 
performance of a contract for transfer of immovable property may, in 
an appropriate case, sue for possession, or partition and separate 
possession of the property, in addition to such performance. It is 
further provided in sub-section (2) of the said provision that no relief 
under the said provision 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
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of the proceeding, allow him to amend the plaint on such terms as 
may be just for including a claim for such relief. 
23.	 This Court in Babu Lal (supra), upon a combined reading of Sections 
22 and 28(3) of the Specific Relief Act respectively and Section 55 
of the Transfer of Property Act, observed that the it was only “in an 
appropriate case” that the plaintiff was required to separately seek 
the relief of possession, partition, or separate possession, as the 
case may be, along with the relief of specific performance. The Court 
observed that in other cases, say for example a case where the 
exclusive possession of the suit property 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. This, the Court observed, was 
the mandate flowing from Section 55 of the Transfer of Property 
Act. The relevant observations made by the Court are extracted 
hereinbelow: 
“11. Section 22 enacts a rule of pleading. The legislature 
thought it will be useful to introduce a rule that in order to 
avoid multiplicity of proceedings the plaintiff may claim a 
decree for possession in a suit for specific performance, 
even though strictly speaking, the right to possession 
accrues only when suit for specific performance is decreed. 
The legislature has
now made a statutory provision 
enabling the plaintiff to ask for possession in the suit for 
specific performance and empowering the court to provide 
in the decree itself that upon payment by the plaintiff of the 
consideration money within the given time, the defendant 
should execute the deed and put the plaintiff in possession.
12. The section enacts that a person in a suit for specific 
performance of a contract for the transfer of immovable 
property, may ask for appropriate reliefs, namely, he 
may ask for possession, or for partition or for separate 
possession including the relief for specific performance. 
These reliefs he can claim, notwithstanding anything 
contained in the Code of Civil Procedure, 1908, to 
the contrary. Sub-section (2) of this section, however, 
specifically provides that these reliefs cannot be granted 
by the court, unless they have been expressly claimed
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by the plaintiff in the suit. Sub-section (2) of the section 
recognised in clear terms the well-established rule of 
procedure that the court should not entertain a claim of 
the plaintiff unless it has been specifically pleaded by the 
plaintiff and proved by him to be legally entitled to. The 
proviso to this sub-section (2), however, says that where 
the plaintiff has not specifically claimed these reliefs in his 
plaint, in the initial stages of the suit, the court shall permit 
the plaintiff at any stage of the proceedings, to include one 
or more of the reliefs, mentioned above by means of an 
amendment of the plaint on such terms as it may deem 
proper. The only purpose of this newly enacted provision 
is to avoid multiplicity of suits and that the plaintiff may get 
appropriate relief without being hampered by procedural 
complications.
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 the Code of Civil Procedure, 
some doubt 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 reliefs 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 or 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
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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 over 
the share of the defendant. It is in such cases that a relief 
for possession must be specifically pleaded.
xxx xxx xxx 
26. Sub-section (3) of Section 28 clearly contemplates that 
if the purchaser or lessee pays the purchase money or 
other sum which he is ordered to pay under the decree, 
the court may on application made in the same suit, award 
the purchaser or lessee such further relief as he may be 
entitled to. Clause (b) of sub-section (3) of
Section 28 
contemplates the delivery of possession or partition and 
separate possession of the property on the execution of 
such conveyance or lease. Sub-section (4) of Section 28 
bars the filing of a separate suit for any relief which may 
be claimed under this section.”
(Emphasis supplied)
24.	 Section 22 of the Specific Relief Act was considered by this Court in 
Adcon Electronics (supra). The Court was called upon to interpret 
the expression “suit for land” appearing in Clause 12 of the Letters 
Patent to the High Court of Judicature at Bombay, and whether a 
suit for specific performance simpliciter where no prayer seeking
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possession was made could be said to be a “suit for land” within the 
meaning of the said clause. The Court referred to the decision of a 
five-Judge Bench of the Federal Court in Messrs. Moolji Jaitha and 
Co. v. Khandesh Spinning and Weaving Mills Co. Ltd. reported 
in AIR 1950 FC 83 and observed that there was a difference of 
opinion as to the import of the expression “suit for land”. Inter alia, 
the Court expressed its agreement with the following observations 
made by Justice Mahajan in the said decision: 
“…In my opinion, if the suit is for specific performance and 
a decree for possession of the land sold is claimed, such 
a suit would certainly be a suit for land; but if the suit is 
simpliciter for specific performance, i.e., for the enforcement 
of the contract of sale and for execution of a conveyance, 
in that event there can be no good ground for holding that 
such a suit is a suit for determination of title to land or that 
the decree in it would operate on the land. …”
25.	 The Court further expressed agreement with a Full Bench decision 
of the Madras High Court in P.M.A. Velliappa Chettiar v. Saha 
Govinda Doss reported in AIR 1929 Mad 721 and observed thus: 
“[...] [I]t seems to me fairly clear that the expression ‘suit 
for land’ occurring in clause 12 Letters Patent, means 
a suit which is instituted with the object of establishing 
claims regarding title to the property or possession of 
it. Whether
or not possession is claimed, if title to any 
immovable property is to be directly affected by the result 
of the decision, the suit would be a suit for land.”
26.	 Concluding on the basis of the aforesaid, the Court held the following 
as regards the meaning of the expression “suit for land”: 
“15. From the above discussion it follows that a “suit for 
land” is a suit in which the relief claimed relates to title to 
or delivery of possession of land or immovable property. 
Whether a suit is a “suit for land” or not has to be determined 
on the averments in the plaint with reference to the reliefs 
claimed therein; where the relief relates to adjudication of 
title to land or immovable property or delivery of possession 
of the land or immovable property, it will be a “suit for land”. 
We are in respectful agreement with the view expressed 
by Mahajan, J. in Moolji Jaitha case.”
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27.	 Further, on the aspect of Section 22 of the Specific Relief Act, the 
Court took the view that although the said provision is enabling 
in nature yet as per the mandate of sub-section (2), the relief of 
possession of immovable property which is the subject matter of the 
agreement for sale cannot be granted by the court unless the relief 
for possession is specifically prayed for. The relevant observations 
are extracted hereinbelow: 
“17. 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.
18. In the instant case the suit is for specific performance 
of the 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”.
19. 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.”
28.	 What appears from a close reading of the decision in Adcon 
Electronics (supra) is that the decision of this Court in Babu Lal 
(supra) was not considered and reliance was placed on the decision 
of the Federal Court in Moolji Jaitha (supra) which was rendered 
in the context of the old Specific Relief Act. The Federal Court had 
no occasion to consider the amended regime brought into being by 
virtue of the Specific Relief Act enacted in 1963. The decision in
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Babu Lal (supra) took note of the divergent views occupying the 
field prior to the enactment of the Specific Relief Act in 1963. The 
relevant paragraphs from Babu Lal (supra) wherein the conflict in 
position of law was noted are extracted hereinbelow: 
“6. It would be appropriate to refer to the state of law as it 
existed prior to the amendment of the Specific Relief Act 
in 1963. One view was that the decree-holder does not 
acquire title or right to recover possession unless a sale 
deed is executed, in execution of the decree for specific 
performance. In Hakim Enayat Ullah v. Khalil Ullah Khan 
[AIR 1938 All 432 : ILR 1938 All 677 : 1938 All LJ 569 : 
176 IC 436] a Division Bench of the Allahabad High Court 
dealing with the question observed:
“A decree for specific performance only declares the 
right of the decree-holder to have a transfer executed 
in his favour of the property covered by the decree. 
The decree by itself does not transfer title. That this 
is so is apparent from the fact that in order to get 
title to the property the decree-holder has to proceed 
in execution in accordance with the provisions of 
Order 21 of the Code. So long as the sale deed is 
not executed in favour of the decree-holder, either 
by the defendant in the suit or by the court, the title 
to the property remains vested in the defendant and 
till the execution of the sale deed the decree-holder 
has no right to the possession of
the property. It is 
only the execution of the sale deed that transfers 
title to the property.”
7. In Kartik Chandra Pal v. Dibakar Bhattacharjee [AIR 
1952 Cal 362 : ILR (1950) 1 Cal 350] a Division Bench 
of the Calcutta High Court, however, after reviewing a 
number of reported cases viz. Ranjit Singh v. Kalidasi 
Debi [ILR (1910) 37 Cal 57 : 14 Cal WN 527 : 5 IC 205], 
Madanmohan Singh v. Gaja Prasad Singh [(1911) 14 
CLJ 159 : 11 IC 228], Deonandan Prasad v. Janki Singh 
[(1920) 5 Pat LJ 314 : 1 Pat LT 325 : 56 IC 322] and Atal 
Behary Acharya v. Barada Prasad Banerji [AIR 1931 Pat 
179 : 12 Pat LT 636 : 131 IC 529], observed:
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“...It is incontestable that in a suit for specific 
performance of contract for the sale of land it is open 
to the plaintiff to join in the same suit two prayers, one 
for the execution of the deed of transfer and another 
for recovery of possession of the land in question....
* * *
We ought to remember in this connection that 
no special form of decree in a suit for specific 
performance is supplied by the Civil Procedure 
Code. Chapter II, Specific Relief Act, deals with the 
various circumstances under which a contract may be 
enforced specifically and where it cannot be allowed. 
When a contract is to be specifically enforced, it 
means simply this that when the parties do not agree 
to perform the contract mutually the intervention of 
the Court is required and the Court will do all such 
things as the parties would have been bound to do 
had this been done without the intervention of the 
Court. A sale of a property after payment of the 
consideration and upon due execution of the deed 
of sale presupposes and requires the vendor to put 
the purchaser in possession of the property. It cannot 
be suggested that when a party comes to Court for 
the specific performance of a contract he is to be 
satisfied with simply the execution of the document 
on payment of the consideration money. The Court 
when allowing the prayer for specific performance 
vests the executing court with all the
powers which 
are required to give full effect to the decree for specific 
performance. By the decree for specific performance, 
the Court sets out what it finds to be the real contract 
between the parties and declares that such a contract 
exists and it is for the executing court to do the rest.
It may be noticed further that a decree in a suit for 
specific performance has been considered to be 
somewhat in the nature of preliminary decree which 
cannot set out in the fullest detail all the different steps 
which are required to be taken to implement the main 
portion of the order directing specific performance of
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the contract. The executing court is in such a case 
vested with authority to issue necessary directions.”
8. In Balmukand v. Veer Chand [AIR 1954 All 643 : 1954 
All LJ 255 : 1954 All WR (HC) 424] the decree for specific 
performance of a contract of sale was silent as to the relief 
of delivery of possession even though such relief was 
claimed in the suit. It was held by the Allahabad High Court 
that the executing court was still competent to deliver the 
possession. It was further held that it was not necessary 
in a suit for specific performance either to separately claim 
possession nor was it necessary for the court to pass a 
decree for possession. A decree for specific performance 
of a contract includes everything incidental to be done by 
one party or another to complete the sale transaction, the 
rights and obligations of the parties in such a matter being 
governed by Section 55 of the Transfer of Property Act. 
In Janardan Kishore v. Girdhari Lal [AIR 1957 Pat 701 : 
1957 BLJR 368] the Patna High Court took the view that 
the relief of possession is inherent in a relief for specific 
performance of contract for lease, and the court executing 
a decree for specific performance of such a contract can 
grant possession of the property to the decree-holder 
even though the decree did not provide for delivery of 
possession. In Subodh Kumar Banerjee v. Hiramoni Dasi 
[AIR 1955 Cal 267] the Calcutta High Court
took a similar 
view that the right to recover possession springs out of 
the contract which was being specifically enforced and 
not as a result of the execution and completion of the 
conveyance, and as such the judgment-debtor was bound 
to deliver possession to the decree-holder.
9. In Mohammed Ali Abdul Chanimomin v. Bisahemi 
Kom Abdulla Saheb Momin [AIR 1973 Mys 131 : (1973) 
1 Mys LJ 130] the Mysore High Court observed that the 
liability to deliver possession for specific performance was 
necessarily implied in a decree for specific performance 
directing the defendant to execute a sale deed on the 
principle of clause (f) of sub-section (1) of Section 55 of 
the Transfer of Property Act, according to which the liability 
to deliver possession arises immediately upon execution
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of a sale deed unless by agreement the date for delivery 
of possession is postponed.
10. In this state of the law the legislature intervened and 
on the basis of the report of the Law Commission enacted 
Section 22 in 1963 as it stands.”
(Emphasis supplied)
29.	 Thus, while the decision in Adcon Electronics (supra) proceeds on 
the understanding that a suit for specific performance of an agreement 
to sell is an action in personam, the decision in Babu Lal (supra) 
takes into account the change brought about by the introduction 
of Sections 22 and 28 to the Specific Relief Act, 1963 respectively 
which has changed the nature of the relief available under Section 
22 by allowing the plaintiff to seek the relief of possession, partition, 
etc. simultaneously along with the prayer for specific performance.
30.	 Even otherwise, we are of the view that the decision in Adcon 
Electronics (supra), is of no avail to the plaintiff. It was expressly 
held by this Court therein that to determine whether a suit is a “suit 
for land” or not has to be determined on the basis of the averments 
made in the plaint with reference to the reliefs claimed therein. In yet 
another decision Excel Dealcomm (P) Ltd. v. Asset Reconstruction 
Co. (India) Ltd. reported in (2015) 8 SCC 219 dealing with the 
meaning of the expression “suit for land” appearing in Clause 12 of 
the Letters Patent of the High Court of
Judicature at Calcutta, this 
Court observed thus: 
“13. A suit for land is a suit in which the relief claimed 
relates to the title or delivery of possession of land or 
immovable property [see Adcon Electronics (P) Ltd. v. 
Daulat [Adcon Electronics (P) Ltd. v. Daulat] ]. Further, 
it is an established rule that to determine whether it is a 
suit for land, the court will look into barely the plaint and 
no other evidence (Indian Mineral & Chemicals Co. v. 
Deutsche Bank [(2004) 12 SCC 376]). If by the averments 
in the plaint and prayers therein, it appears that the suit 
is one for land, it shall be so held and if it does not so 
appear, then the suit shall continue under leave granted 
under Clause 12. …
xxx xxx xxx
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16. It may be noted that the sale certificate sought under 
the prayer requires the delivery of possession of the suit 
property. Thus, we find that the prayer for delivery of 
possession was an implicit one in the present case. The 
prayer as sought in the plaint could not have been granted 
without the delivery of possession of the suit property as 
the sale certificate itself contemplates the delivery of the 
immovable property. Thus, in view of this we find that Adcon 
Electronics [Adcon Electronics (P) Ltd. v. Daulat] would 
not apply as there was a prayer for delivery of possession 
in the present case. Therefore, we hold that the present 
suit was indeed a suit for land.”
(Emphasis supplied)
31.	 Similarly, in Moolji Jaitha (supra), His Lordship Kania, C.J. held 
that a Suit as a whole should be taken into consideration to find out 
whether it is for the purpose of obtaining a direction for possession 
or a decision on title to land, or the object of the Suit is something 
different but involves the consideration of the question of title to land 
indirectly. His Lordship further held that the nature of the Suit and 
its purpose have to be determined by reading the Plaint as a whole 
and it is not proper to dissect the prayers and consider whether the 
Court has jurisdiction on the limited points. It was further held that 
the inclusion or absence of a prayer is not decisive of the true nature 
of the Suit, nor is
the order in which the prayers are arrayed in the 
Plaint. The substance or object of the Suit has to be gathered from 
the averments made in the Plaint and on which the reliefs asked in 
the prayers were based. 
32.	 In the present case, the alleged contract for the sale executed 
between the parties through exchange of communications dated 
16.01.2004 and 20.01.2004 respectively contains the stipulation that 
10% of the total sale consideration has to be paid immediately by the 
plaintiff upon booking, 85% of the sale consideration has to be paid 
by 28.02.2004 and the balance 5% of the sale consideration has to 
be paid at the time of notice for possession of the premises. Further, 
there is a stipulation that the possession of the suit property has to 
be handed over by the defendants to the plaintiff upon payment of 
the balance 5% of the total sale consideration. Further, section 55(1)
(f) of the Transfer of Property Act also stipulates that the seller of an
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immovable property is required to handover the possession of the 
property to the buyer pursuant to the execution of the sale deed. 
It was also held in Babu Lal (supra) that in view of the interplay 
between Sections 22 and 28 of the Specific Relief Act respectively 
and Section 55 of the Transfer of Property Act, the handing over 
of the possession of the immovable property in respect of which a 
decree of specific performance has been granted is only incidental. 
33.	 Thus, it is clear from the terms of the alleged contract between the 
parties that the transfer of possession of the suit property is implicit 
in the said contract and absence of a specific prayer seeking transfer 
of possession would not have any bearing on the character of the 
suit, which is one covered by Section 16(d) of the CPC. 
34.	 If we were to hold otherwise, then it would give rise to a situation 
where a plaintiff would be allowed to file a suit for specific performance 
simplicter and having obtained a decree therein, the plaintiff would 
pray for the transfer of the execution proceedings to the court within 
whose territorial jurisdiction the suit property lies and thereafter seek 
amendment of the plaint to include a prayer for transfer of possession, 
which has been expressly held to be permissible in Babu Lal (supra). 
An interpretation which gives rise to the possibility of such misuse 
of law cannot be
allowed. 
35.	 For all the aforesaid reasons, the Special Leave Petitions fail and 
are hereby dismissed.
36.	 Interim relief granted earlier stands vacated. 
37.	 In view of the aforesaid, it is now for the plaintiff to take appropriate 
steps to present the plaint before the court of competent jurisdiction 
and get his suit adjudicated on merits in accordance with law.
38.	 Pending applications, if any, also stand disposed of.
Result of the case: Special Leave Petitions dismissed.
†Headnotes prepared by: Divya Pandey