Lakshmikanta Jha, C.J:— This application in revision is by the plaintiffs. The suit giving rise to this application was for specific performance of a contract of sale of certain land and for possession thereof with mesne profits from the date of the institution of the suit.

The plaintiffs' case, in short, is that the defendants first party entered into an agreement in writing and contracted to sell to them the land in dispute by a certain date for a consideration of Rs. 1,700 but they did not perform the contract and sold the land to the defendant second party and put him into possession thereof. On these allegations the suit was instituted in the court of the 2nd Munsif at Bhagalpur, the pecuniary limit of whose jurisdiction was Rs. 2,000.

The suit was valued at Rs. 1,700, the amount of] the consideration money, and court-fee was paid thereon under section 7(x)(a) of the Court Fees Act. It may be stated that this amount was also the value for the purpose of jurisdiction under section 8 of the Suits Valuation Act.

There was a dispute as regards the amount of court-fee payable on the plaint. The contention of the defendants was that the suit should be valued according to the market value of the property under section 7(v) of the Court Fees Act. The plaintiffs, on the other hand, urged that the suit should be valued at the amount of the consideration money under section 7(x)(a) of the Court Fees Act, and that the court-fee paid was sufficient. The learned Munsif overruled the contention of the plaintiffs and held that the value of the suit for the purposes of court-fee and jurisdiction should be the market value of the land in suit. He accordingly held an enquiry and having found that the value of the land in suit was in excess of Rs. 2,000, the limit of his pecuniary jurisdiction returned the plaint for presentation to the proper court. Thereupon the plaintiffs preferred an appeal to the District Judge. The learned Additional District Judge, before whom the appeal came up for hearing, upheld the view of the learned Munsif but remanded the case directing the learned Munsif to give a clear finding as to the market value of the land in dispute. The plaintiffs have, therefore, come up to this. Court in revision.

The case came up for hearing before a single judge of this Court, who has, on account of the importance of the question raised before him referred it to a division bench and it has now come before us for hearing.

The question for decision is whether the court-fee on the plaint is payable according to the amount of the consideration under section 7(x)(a) or on the amount at which the court may estimate the land with reference to the value of similar land in the neighbourhood under section 7(v)(c) of the Court Fees Act, that is, on the market value of the land.

The contention of the defendants is that the property having passed into the hands of the defendant second party, who was not a party to the contract, the suit is, in substance, one for possession and mesne profits and ought to be valued under section 7(v) of the Court Fees Act, at the market value of the land, and in support of this contention they have strongly relied on the case of Madan Mohan Singh v. Gaja Prasad Singh and on a single judge decision of this Court in Rambahadur v. Banwari Lal. The plaintiffs, on the other hand, maintain that the suit is for specific performance of a contract, pure and simple, even though there is a claim for possession and mesne profits, and the court-fee paid is sufficient because it falls under section 7(x)(a) of the Court Fees Act which specifically provides for suits for specific performance of contract of sale and states that the court-fee payable in the case of such a suit would be according to the amount of consideration, and in support of their contention they rely upon an unreported decision of this Court (Civil Revision no. 270 of 1925, decided on the 22nd October, 1925) and also on several reported decisions of other High Courts.

In my opinion, the contention of the plaintiffs must prevail. The suit is essentially one for specific performance of contract. The right to possession sprang out of the contract of sale and when the court is asked to give relief by giving possession, such a relief is comprised in the relief for specific performance of the contract of sale. The addition of the prayer for possession makes no difference. Under section 27 of the Specific Relief Act, specific performance of the contract may be enforced against (a) either, party thereto, or (b) any other person claiming under him by a title arising subsequently to the contract. If the land in suit had not been transferred by the defendants first party to the defendant second party subsequent to the contract, the plaintiffs could ask not only that the defendants be compelled to execute the necessary conveyance but also for delivery of possession to them after the execution of the necessary conveyance. But as the defendant second party is claiming under the defendants first party by a title arising subsequent to the contract of sale in favour of the plaintiffs, and not under any other title, he stands in the same position as the defendants first party and, therefore, if the suit for specific performance of the contract be decreed, the court must order possession to be delivered to the plaintiffs, either by the defendants first party or by the defendant second party, or by both. The fact that the defendant second party is not a party to the contract makes no difference in law because he derives title from the defendants first party under a sale-deed executed subsequent to the contract. The cause of action for delivery of possession is not different from the cause of action for the specific performance of the contract itself. It is also clear from paragraph 6 of form no. 47 of the First Schedule to Appendix A of the Code of Civil Procedure that a prayer for possession is a proper prayer in a suit for specific performance. Therefore, the addition of a prayer for possession does not change the character of the suit even if a third party is in possession if such a person does not claim to be in possession under a paramount title.

If the plaintiffs do not claim possession in the suit for specific performance of the contract, it is doubtful whether a separate suit for possession can lie by reason of the provision of Order 2, rule 2, Code of Civil Procedure. The Madras High Court has held in Sundara Ramanujam Naidu v. Sivalingam Pillai that such a suit would not lie, whereas the Allahabad High Court has taken a contrary view in Sardar Arjun Singh…(Judgment-Debtor); v. Sahu Maharaj Narain…(Decree-Holder)., but it is not necessary for us to decide this question in the present suit.

The defendant second party can defeat the suit only on the ground that he is a bona fide purchaser for value without notice; and if at the hearing he substantiates his case that he is a purchaser for value without notice, the suit for specific performance of the contract must fail, not only against him but also against the defendants first party. The plaintiffs cannot get possession unless they prove the contract and make out a case for specific performance thereof. In Muhi-ud-din Ahmad Khan v. Majlis Rai, which was essentially a suit for specific performance of contract and in which a question of limitation was involved, it was held that “the right to possession springs out of the sale-contract, and the relief by giving possession is comprised in the relief by specific performance of the sale-contract.” This view was followed by Tudball, J. as Taxing Judge in Nihal Singh v. Sewa Ram. A similar question also arose in Sundara Ramanujam Naidu v. Sivalingam Pillai, and in the course of his judgment Krishnan, J. observed:—

“The relief by way of giving possession arises from the relief granting the execution and delivery of the sale-deed, as without a registered sale-deed, title cannot be transferred under the Transfer of Property Act where the value is over Rs. 100; without the latter relief being granted, the former cannot: see Mahi-ud-din Ahmad Khan v. Majlis Rai, I.L.R 6 Allahabad, 231). Nevertheless both the rights, viz., the right to the sale-deed and the right to possession spring out of the same contract though one necessarily precedes the other. The delivery of possession is a part of the specific performance of a contract of sale unless the terms thereof show that the vendee was not under an obligation to deliver possession. The claim for delivery of possession is as much a part of specific performance as the claim for the payment of the price is, when the seller brings the suit for specific performance.”

The view taken by the Allahabad and Madras High Courts is also shared by the Bombay and Lahore High Courts [vide Mulgibhai Pitamberdas v. Bai Chanchal; Fakir Chand v. Ram Datt]. The point directly arose for decision in an unreported case of this Court already referred to—Chander Sekhar Prasad Singh v. Mosummat Ramdhan Kuer. In that case a suit was filed for specific performance of a contract and there was also a prayer for recovery of possession of the property. The plaintiff paid court-fee under clause (v) of section 7 of the Court Fees Act, treating the suit as one for recovery of possession. The court below asked the plaintiff to pay court-fee under clause (x) of section 7 on the full consideration money, treating the suit as one for specific performance of contract. The case came up for hearing before Jwala Prasad, J. He, however, in the absence of any decision of this Court on the point and in view of the conflict of authorities on the question involved, referred the case for decision by a larger bench. The matter came up for decision before a division bench, and Das, J., with whom Adami, J. agreed, held:—

“I entirely agree with the view which has been taken by the court below. The learned Vakil relies upon the case of Madan Mohan Singh v. Gaja Prasad Singh but in that case the question of court-fee was not directly involved. I; have no doubt that the learned Judge was right in looking at the suit as a suit for specific performance.”

The defendants have strongly relied on the authority of the decision of the Calcutta High Court in Madan Mohan Singh v. Gaja Prasad Singh, Mookerjee, J., held in that case that where the plaintiff not only seeks specific performance of a contract of sale, but also asks that the defendant may be compelled to execute a conveyance and to deliver possession of the property to him, the suit is in substance one for possession of the property and should be valued under section 7, clause (v) of the Court Fees Act, according to the value of the subject matter. This decision was followed by a single judge of this Court in Rambahadur v. Banwari Lal, and it appears that the unreported bench decision of this Court, already referred to, was not brought to his notice. For the reasons given by me I am, with all respects, unable to agree with the view taken by the Calcutta High Court in Madan Mohan's case and by the single judge of this Court in Rambahadur's case. The learned Counsel for the opposite party invited our attention to a special bench decision of the Madras High Court in Panangipalli Suryanarayanacharyulu v. Ravi Narasimhamswami and contended that the view taken in Sundara Ramanujam Naidu v. Sivalingam Pillai has been shaken. I am unable to accept this contention. In the special, bench base of the Madras High Court a lease had been granted for a term of twenty years which was to expire sometime in 1933. In 1929, however the son of the grantor (who was since dead) granted a lease of the same property to another person for twenty years, the period to commence from June, 1935. A deed of lease was duly executed and registered in favour of the second lessee. The second lessee sued for specific performance of the contract of lease, for possession of the properties and for the recovery of mesne profits, averring in his plaint that his lessor had, in collusion with the lessees under the first lease, put them into possession of the properties and refused his demand for possession. On these facts it was held that the suit was one for possession and not one for specific performance. It may be observed that this case is clearly distinguishable. The first lessees did not derive title from the grantor of the second lease subsequent to the execution of the lease, in favour of the second lessee. On the expiry of the first lease, the lessees under the first lease took possession of the lease hold, according to the allegation in the plaint, in collusion with the grantor of the second lease. Therefore, the suit was one for possession against strangers to the contract who were, according to the plaintiff unlawfully withholding possession from him and did not fall within the mischief of section 27, clause (b), of the Specific Relief Act. Leach, C.J in distinguishing the case of Sundara Ramanujam Naidu v. Sivalingam Pillai observed:—

“In this case defendants 2 to 16 are not, according to the plaint, persons claiming under the first respondent, but persons who have been put in possession of the property in collusion with the petitioner in order to defeat the first respondent.”

Therefore it cannot be said that the correctness of the decision in Sundara Ramanujam Naidu v. Sivalingam Pillai has in any way been shaken. Moreover recently in Jagropan v. Krishnadeo a bench of this Court, following the unreported decision in Chander Sekhar Prasad Singh v. Mosummat Ramdhan Kuer, has held that in a suit for specific performance of a contract of sale, in which there was a claim for recovery of possession and a prayer for injunction, the court-fee payable was under section 7(x) of the Court Fees Act, and it would make no difference simply because there was a prayer for possession. Therefore, on an anxious consideration of all the points raised before us, I am of the opinion that the case falls under section 7(x)(a) of the Court Fees Act and the learned Munsif was wrong in returning the plaint.

I would accordingly allow the application, set aside the orders of the courts below and direct the trial court to accept the plaint as properly stamped and to proceed with the suit.

Reuben, J.:— I agree.

So far as we are concerned the point is concluded by the decisions in Chander Sekhar Prasad Singh v. Mosummat Ramdhan Kuer and Jagropan v. Krishnadeo.

The impleading of a third party, relied on by learned counsel for the respondents as distinguishing the decision in Sundara Ramanujam Naidu v. Sivalingam Pillai, makes no difference. Section 27, clause (b) of the Specific Relief Act, 1877, makes it clear that a suit for specific performance lies against a third party. In fact, where the property in suit has, subsequently to the contract, been transferred to a stranger, the transferee is a necessary party to a suit for specific performance of the Contract for, before it can grant the relief sought, the Court has to investigate whether the transferee is a bona fide purchaser for value without notice.

Panangipalli Suryanarayanacharyulu v. Ravi Narasimhaswami was not a case of specific performance. There the lease in favour of the plaintiff had been executed and registered and his title was complete. Further, as pointed out by my Lord the Chief Justice; the third party who was impleaded did not come within the mischief of section 27, clause (b).

The only new feature of this case is that there is a prayer for “mesne profits”, that is to say, for compensation for loss suffered by the plaintiffs owing to delay in the performance of the contract of sale; A grant of compensation is within the powers of a Court before which a suit has been instituted, for specific performance. In fact, it is a duty laid on the Court by section 19 of the Specific Relief Act which provides:

(1) that where the Court refuses specific performance but considers that there has been a breach entitling the plaintiff to compensation, the Court “shall” award him compensation, and

(2) even where specific performance is granted, if the Court decides that it is not sufficient to satisfy the justice of the case and that some compensation should also be made, it “shall” award him compensation.

The section provides in its first paragraph that the plaintiff may ask for compensation, but the clauses just referred to laying a duty on the Court to grant compensation are not made dependent on such a request and the Court can grant, compensation with out such a request Krishna Aiyar v. Shamanna, Callianji Harjivan v. Narsi Tricum. Therefore, the inclusion in the plaint of a prayer for compensation, does not alter the nature of the suit, and court-fee is payable thereon as on a plaint for specific performance.

Application allowed.

S.H