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The Specific Relief Act, 1963
The Government Buildings Act, 1899
Section 21 in The Specific Relief Act, 1963
The Unit Trust Of India Act, 1963
Section 22 in The Specific Relief Act, 1963

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Patna High Court
Saitun Nisa vs Triloki Vishwakarma Alias ... on 7 August, 1997
Equivalent citations: 1997 (2) BLJR 1685
Author: M Eqbal
Bench: S Chattopadhyaya, M Eqbal

JUDGMENT

M.Y. Eqbal, J.

1. This appeal under Clause 10 of the Letters Patent of the Patna High Court arises out of the judgment dated 13.2.1990 passed by the learned Single Judge of this Court in F.A. No. 42 of 1984 (R) by which the learned Single Judge allowed the appeal in part and modified the judgment and decree passed by the Special Subordinate Judge, Ranchi, in T.S. No. 220 or 1982 decreeing the suit for specific performance of the agreement to sell.

2. The plain tiff-appellant filed the aforesaid suit for a decree for specific performance of agreement to sell dated 8.5.1979, executed by the defendant agreeing to transfer 854. Sq. feet of land comprised within Municipal Survey Plot No. 206 bearing Holding No. 583 within Ward No. 5 of Ranchi Municipality.

3. The plaintiff's case, inter alia, was that out of the total consideration amount of Rs. 21,500/- a sum of Rs. 13,500/- was paid in advance and further a sum of Rs. 600/- was also paid on 16.51979. The balance amount was agreed to be paid at the time of execution and registration of the sale deed. As per the agreement, the defendant was required to execute and register the sale deed in favour of the plaintiff within six months from the date of receipt of permission of the competent authority as required under Section 27 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter to be referred to as 'the Act' for short).

4. The defendant appeared and contested the suit by filing written' statement. The defendant denied execution of the agreement and contended that in any event the suit property is a joint family property and the defendant has only 1/5th share and, therefore, the agreement itself is void and no decree for specific performance can be granted. It was further stated in the written statement that the suit land besides other properties were the subject matters of the partition suit, which was filed by one of the co-shares in which preliminary decree has been prepared and 1/5th share of the defendant has been declared, which will come to 426 Sq. feet only.

5. The learned trial court after considering the evidence adduced on behalf of the parties, both oral and documentary, and after hearing the learned Counsel for the parties decreed the suit in favour of the plaintiff. The learned court below held that the defendant has got 1/5th share in the suit land equivalent to 426 Sq. feet and, therefore, the defendant was directed to execute and register the sale deed in favour of the plaintiff.

6. This defendant thereafter preferred an appeal before this Court, which registered as F.A. No. 42 of 1984 (R). The learned Single Judge of this Court after hearing the parties allowed the appeal in part and the judgment and decree passed by the trial court was modified.

The learned Single Judge held that the suit filed by the plaintiff was well within the time and the plaintiff was always ready and willing to perform her part of the agreement and her non-examination is not fatal to the suit.

7. The learned Single Judge formulated specific question as to whether the decree for specific performance of contract in respect of 1/5th share being 426 Sq. feet without any abatement in the consideration amount and without any express relinquishment of her claim of damages against the defendant can be sustained in law. While deciding this question, the learned Single Judge has taken note of the various provisions of the Specific Relief Act and the law with regard to the power of disposal of joint family properties by co-sharer under the Mitakshara and Dayabhag School of Hindu Law. Learned Single Judge ultimately came to the conclusion that regard being had to the fact that partition has been effected and the plaintiff's share in the property has been held to be 1/5th, evidently at the time when the agreement to sell was undivided share in the suit property. Lastly, the learned Single Judge refused to exercise its discretion in favour of the plaintiff by decreeing the suit for specific performance of the agreement, in view of the fact that that would be against the interest of coparceners.

8. The plaintif-appellant aggrieved by the said judgment of the learned Single Judge has preferred this Letters Patent Appeal.

9. Mr. Debi Prasad, learned Sr. Counsel appearing on behalf of the plaintiff-appellant has advanced a very concised argument. According to the learned Counsel although the learned Single Judge confirmed tne finding of the trail court that there was concluded contract in between the plaintiff and the defendant, and the plaintiff was always ready and willing to perform her part of the agreement, the learned Single Judge misdirected itself in law in not exercising his discretion in favour of he plaintiff. learned Counsel further submitted that the learned Single Judge was not correct in holding that no decree for specific performance of agreement would be passed against a co- sharer in respect of his share in the property as that would be against the interest of other co-sharers or co-parceners. learned Counsel put reliance in the case of: (i) Kartar Singh v. Harjinder Singh and Ors. , and (ii) Sardar Singh v. Krishna Devi (Smt.) and Anr. .

10. Mr. Shivnath, learned Counsel appearing for the defendant-respondent, first of all raised some preliminary objections with regard to the maintainability of the letters patent appeal. The learned Counsel firstly submitted that the instant appeal has been filed without obtaining necessary certificate/leave from the learned Single Judge who heard and disposed of the First Appeal, and as such it is not maintainable. According to the learned Counsel unless a certificate or leave to that effect is granted by the learned Single Judge which is mandatory requirement of Clause 10 of the Letters Patent Appeal of Patna High Court, no appeal is entertainable. In support of his contention the learned Counsel has relied upon a decision of the Apex Court in the case of Naranbhai Dayabhai Patel v. Suleman Isubji . The second preliminary objection taken by the learned Counsel is that the suit of the plaintiff-appellant has been decreed so far it relates to the alternative relief claimed by the plaintiff in the suit. The learned Counsel submitted that in a suit where an alternative relief is claimed and is decreed by the court then letters patent appeal is not maintainable. learned Counsel is support of his contention relied upon a decision of the Madras High Court in the case of Sukku Bai v. R.B. Reddiar and the decision to the Apex Court in the case of Ramesh Chandra, v. Chuni Lal .

11. First of all I will decide the first question raised by Mr. V. Shivnath, i.e,. whether a letters patent appeal against the judgment of the learned Single Judge is not maintainable unless a certificate or leave is granted by the learned Single Judge in preferring such appeal. For better appreciation Clause 10 of the Letters Patent of High Court (Patna) is worth to be looked into which is as under:

10. and we do further ordain that an appeal shall lie to the said High Court of Judicature at Patna from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India, Act, and that notwithstanding anything hereinbefore provided an appeal, shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, made on or after the first day of February, One thousand nine hundred and twenty-nine, in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court shall be to us, Our Heirs or Successors in Our or their Privy Counsel, as hereinafter provided.

From bare perusal of Clause 10 it is manifest that the provision of Clause 10 consists of two parts. First part provides that an appeal lie to the High Court from the judgment cf one Judge of the said High Court provided such judgment is not passed by the Single Judge in exercise of appellate Jurisdiction in respect of the decree or order made in exercise of appellate jurisdiction by a court subject to the superintendence of the High Court. The latter part of Clause 10, however, provides some exception to the first part, it says that in cases where judgment or order passed in exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a Court subject to superintendence of the High Court, a letters patent appeal would lie to a Division Bench of the said High Court, if leave or certificate is obtained from the Single Judge to the effect that the case is a fit one for appeal. In my . opinion, also, there is no controversy for this proposition as the same is settled by the Apex Court and also by various High -"ourt. It is well settled that an appeal shall like from the judgment of a Singl- Judge under Clause 10 of the Latter Patent to the High Court it the order made by a Single Judge is a judgment unless such right has been expressly or by necessary implication taken away by the legislate.

12. The decision of the Apex Court in the case of Nara Bhai Dayabhai Patel (supra) upon which Mr. V. Shivna put heavy reliance does not in any way help the respondent. In the aforementioned case before the Apex Court the fact was that after the amendment of Bombay Tenancy and Agricultural Lands Act, 1948, the tenant has become a deemed purchaser which effect from April 1, 1957, which date was termed as Tillas day. The erstwhile land lord terminated the tenancy of the appellant-tenant and filed the trust deed before the Asstt. Charity Commissioner under Section 18 of the Bombay Public Trust Act for transfer. The trust was accordingly registered but without any notice to the appellant. The appellant challenged the said order in appeal before the Charity Commissioner under Section 70 of the Act and the said appeal was dismissed. Against the aforesaid order the appellant preferred an appeal before the District Judge as contemplated under Section 70(2) of the Bombay Port Trust Act, and the said judgment was eventually affirmed by the District Judge. The appellant then moved to the High Court in appeal and the learned Single Judge by judgment and decree set aside the order of the District Judge and other authorities concerned and held that the appellant become the deemed purchaser by the operation of law. The respondents, aggrieved by the said order of learned Single Judge, preferred letters patent appeal under the provisions of Clause 15 of the High Court of Bombay. An objection was raised with regard to the maintainability of the appeal. Ultimately the matter went to the Supreme Court and the Apex Court following its earlier decision in the case of Ramchandra Gobardhan Pandit v. State of Gujrat held that the appeal would not lie to the decision unless the certificate of learned Single Judge was been granted for leave to appeal.

In the case of Naranbhai Dayabhai Patel (supra) the Apex Court clarified the position by making the following observations:

The power of this District Court in exercising jurisdiction under Section 72 is a plenary power. It is true that the Commissioner is not subordinate to the District Court but the District Court has powers to correct, modify, review or set aside the order passed by the Commissioner. All the characteristics of an appeal and all the powers of an appellate Court are available to the District Court while deciding an application under Section 72. To decide this case we must be guided not only by the nomenclature used by the section for the proceedings but by the the essence and content of the proceedings. That being so, we have no hesitation to hold that the proceedings before the District Court under Section 71(1) are in the nature of an appeal and that District Court exercises appellate jurisdiction while disposing of a matter under Section 72(1).Consequently, the Single Judge of the High Court while deciding the appeal, from the order of the District Court deals with a matter made by the District Judge in the exercise of an appellate jurisdiction by a Court subject to the superintendence of the High Court and hence Clause 15 of the Letters Patent is directly attached.

13. As noticed above it is abundantly clear from the provision of Clause 10 of the Letters Patent that an appeal lies to the High Court from the judgment of one Judge of the said High Court exercising appellate jurisdiction in respect of a decree or order made by the Court exercising original jurisdiction and which Court is under the superintendence of he said High Court. It is also very clear that in those cases where a judgment is passed by the learned Single Judge exercising appellate jurisdiction in respect of decree or order made in exercise of appellate jurisdiction by a Court subject to, the superintendence of the said High Court than obtaining of leave or certificate from such a Single Judge is condition precedent for the maintainability of a letters patent appeal. Since in the instant case the judgment and decree impugned in appeal before the learned Single Judge was passed by the original Court and not by a Court exercising appellate jurisdiction or revisional jurisdiction I am of the opinion that this appeal under Clause 10 is maintainable.

14. The second point raised by Mr. V. Shivnath is that this letters patent appeal at the instance of the plaintiff is not maintainable for the simple reason that the alternative relief claimed in the suit has been decreed in favour of the plaintiff. In my opinion, the submission of the learned Counsel has no substance and cannot be accepted. In a suit for specific performance of an agreement to sell of immovable property the plaintiff is required to claim alternative relief of refund of money or for compensation and damages. Merely because the plaintiff has claimed an alternative relief for refund of money it cannot be held that the plaintiff shall be deprived from his statutory right of appeal against the main relief which has been refused by the Court. For better appreciation Sections 21 and 22 of the Specific Relief Act are worth to be quoted hereinbelow:

21. Power to award compensation in certain cases.--(1) In a suit for specific performance of contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance.

(2) If, in any such suit, the Court decides that specific performance ought not to be grated, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.

(3) If, in any such suit, the Court decides that specific performance ought to be granted, but that is not sufficient to satisfy the justice of the case and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.

(4) In determining the amount of any compensation awarded under this section the Court shall be guided by the principles specified in Section 73 of the Indian Contract Act, 1872 (9 of 1872).

(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint:

Provided that where the plaintiff has not claimed any such compensation in the plaint the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including claim for such compensation."

"22. Power to grant relief for possession, partition, refund of earnest money, etc.--

(1) Notwithstanding anything to the contrary contained in the, Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for--

(a) possession, or partition or separate possession, of the property, in addition to such performance; or

(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.

(2) No relief under Clause (a) or Clause (b) of Sub-section (1) 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 of he proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

(3) The power of the Court to grant relief under Clause (b) of Sub-section (1) shall be without prejudice to its powers to award compensation under Section 21.

From plain reading of Section 21 of the Act it is clear that the plaintiff is required to claim an alternative relief for compensation or damages for the breach of contract. Sub-section (5) of Section 21 makes it clear that the Court shall not grant" such relief unless it is claimed in the plaint. Section 22 also makes it clear that the alternative relief including refund of earnest money shall not be granted to the plaintiff in a suit unless it has been specifically claimed therein. There is no provision under the Specific Relief Act which debars the plaintiff to challenge the decree in appeal refusing to grant relief for specific performance of contract for the transfer of immovable property in case decree for alternative relief is granted.

15. learned Counsel for the respondent mainly relied upon the decision of the Madras High Court in the case of Sakku Bai (supra) but with due respect I am of the view that the learned Judge has not analysed the provisions of Sections 21 and 22 of the Specific Relief Act and has proceeded on the general principle that choice of reliefs is always with the plaintiff who is the dominus litus in a litigation and he could seek more than one relief.Although the Madras High Court has referred and distinguished the decision of the Supreme Court in the cases of Ramesh Chandra (supra), Amir Mahton v. Shivpujan Missir AIR 1946 Patna 231 and Bariar Singh v. Durga Gir , but I am in full agreement with the view taken by their Lordships of the Apex Court and this Court. In my opinion, the Madras High Court has not correctly appreciated the views taken by the Supreme Court and the High Court in those decisions. In the of Amir Mahton (supra) the plaintiff instituted a suit for adjudication of the title and possession over the Rahan property and also for mense profit. In the alternative it was prayed that if for any reasor possession cannot be delivered to the plaintiff then Rs. 999/- and Rs. 81/- being the principal and interest be realised by the sale of the Rahan property. The trial court granted a relief of simple money decree. The plaintiff appealed and the appellate Court reversed the judgment and decree of the trial court and granted a decree for possession of the land covered by Rahan deed. Aggrieved by the said judgment and decree of the appellate Court, the defendant preferred second appeal before this Court. On of the grounds taken by the defendant-appellant in the second appeal was that the plaintiff- respondent was granted a money decree by the trial court which allowed one of the reliefs claimed by them. It was, therefore, not open to them to come up appeal before the first appellate Court. Rejecting the said contention this Court held as under: The facts, as stated above, of the aforesaid two decisions are different from' the facts of the cases before us I have already quoted in extenso at the beginning of this judgment the reliefs which the plaintiff- respondents claimed. The plaintiff-respondents claimed. The plaintiff-respondents claimed for the recovery of possession or in the alternative a mortgage decree by sale of the Rehan property. They did not state in the plaint that they would be satisfied with a simple money decree against Mt. Batasia (defendant 6). The trial court gave a simple money decree against Mt. Batasia in favour of the plaintiffs-respondents. It cannot, therefore, be said that the plaintiffs respondents had succeeded in getting one of the two reliefs which they had claimed. In view of this distinction, it is unnecessary to consider the correctness or otherwise of he two decisions referred to above. 1 doubt, however, if a general rule can be laid down that in cases where an alternative relief has been granted the plaintiff has nor right of appeal for getting a decree for the other relief which he had claimed in the plaint. Section 157, Ben. Ten.Act refers to alternative reliefs in a suit for ejectment of a trespasser; it is open to the land-lord to recognise a trespasser and accept him as a tenant. If he expresses himself to be satisfied with accepting rent from a trespasser, it is obvious that the cannot seek to eject him. The decision in AIR 1924 Cal. 445 has reference to the facts of that case and the particular terms of Section 157 Ben. Ten. Act. I am unable to apply to the principle of that case by analogy to the facts of the present case, which as I have shown above, are different.

16. In the case of Bariar Singh (supra) the plaintiff who was the mortgagor filed the suit for redemption and prayed for an alternative relief for damages. The alternative relief was granted by the trial court. The plaintiff aggrieved by the refusal to grant the main relief of redemption of the mortgaged property filed appeal before this Court.The defendant-respondent took the stand that once an alternative relief granted by the trail court the plaintiff is estopped from filing the appeal against the said judgment and decree. This Court again rejected the contention of the responders and held as under: learned Counsel for the defendant No. 6, on the other hand, contended that his client having been found not to be the farzidar of the mortgages, the only decree that could have been passed in favour of the plaintiff, namely, a decree for damages against the original mortgagees has been passed by the Court of appeal below. According to him, the plaintiff having prayed for alternative relief and having been granted one, he is estopped from filing the present appeal. In my opinion, there is no substance in this contention. As held in the case of 'Amir Mahton v. Sheopujan Missir", 25 Part 1, even if the alternative relief was granted to the plaintiff, he is not debarred from filing this appeal for possession of the properties in suit after redemption.

17. In the case of Ramesh Chandra (supra) the Apex Court was considering the similar question arose in a suit for specific performance. In that case the plaintiff filed a suit for specific performance of agreement to sell immovable property. The decree for specific performance was not granted by the trial court. However, the decree was granted for refund of earnest money. Aggrieved by the same judgment and decree the plaintiff preferred an appeal and ultimately the matter came to the High Court. The High Court held that the appellants were disentitled to a decree of specific performance because submission was made at the Bar that during the pendency of the appeal the plaintiff executed the decree of the trial court and the amount of Rs. 7500/- has been deposited by the respondents pursuant to the execution of the proceeding. The Apex Court took notice of the fact that the appellant could not accept satisfaction of the decree of the trial court and yet preferred an appeal against that decree. It was held asunder: This illustrates the rule that a party cannot approbate and reprobate at the same time. These propositions are so well known that no possible exception can be taken to them. In the present case, however, the above rule cannot apply because the appellants had, by consistent and unequivocal conduct made it clear that they were not willing to accept the judgment of the trial court as correct. It has already been mentioned at a previous stage that after a decision of the trial court the appellants had even applied on March 31,1958 for an injunction restraining the respondents from selling or otherwise disposing of the plot as it was apprehended that they were trying to do so. It was stated in this application that the plaintiffs would be preferring an appeal but it would take time to secure certified copies. An appeal was in fact preferred and seriously pressed before the High Court on the relief relating to specific performance. This relief is discretionary but not arbitrary and discretion must be exercised in accordance with the sound and reasonable judicial principles. We are unable to hold that the conduct of the appellants, which is always an important element for consideration, was such that it precluded them from obtaining a decree for specific performance.

18. Having regard to the facts of the case and the discussions made hereinabove, I am of the definite view that in a suit for specific performance of contract it is the mandatory requirement of law that the plaintiff must also make an alternative relief for refund of money or for compensation and if the same has not been made in the suit then no such relief can be granted. I am also of the definite view that merely because alternative relief has been granted by the Court the plaintiff cannot be debarred from preferring an appeal against the judgment and decree by which the main relief has been refused.

19. Coming back to the merit of the case of the parties, it appears that the learned trial court decreed the suit for specific performance in respect of 1/5th share of the respondent, but the learned Single Judge reversed the judgment of the trial court by holding that even if the decree for specific performance of contract is granted the same may be against the interest of co-parceners and, therefore, it would not be proper to exercise discretion in favour of the plaintiff. The learned Single Judge also noticed the provision of Section 12 of the Specific Relief Act and held that under the said provision a decree for specific performance could not be passed in a case where only part of the contract is enforceable and the other part remains un-performed, and there is no relinquishment of un-performed part of the contract.

20. I have perused the facts of the case and the evidence available on record and also the judgment and decree passed by the learned trial court and the Single Judge. There is no dispute that there was a partition between the defendant and his co-sharers and by virtue of the decree passed in the partition suit, the defendant-respondent was allotted 1/5th share in the suit properties. The learned Single Judge also found that although the defendant entered into an agreement for sale for the entire suit properties, measuring 853 Sq. Feet but in fact the defendant-respondent has got only 1/5th share equivalent to 426 Sq. Feet. The learned Single Judge, however, held that a decree for specific performer in respect of 1/5th share of the defendant-respondent shall be against the interest of other co-shares/co-parceners, and, therefore, the discretion should not be exercised in favour of the plaintiff. The controversy has been settled by the Apex Court in the case of Kartar Singh (supra). In that case, the vendor and his sister had each half share in the suit properties. The brother entered into an agreement for sale of his share and also the share of his sister. Subsequently the sister refused to sell the property. In the suit filed by the plaintiff for specific performance of contract an objection was raised that since the property is not partitioned, there is legal difficulty in granting a decree for specific performance.The Apex Court rejected the contention of the defendant and held as under: We are afraid that the very foundation of reasoning of the Division Bench of the High Court is defective. It was never disputed that the respondent and his sister had each half share in the suit properties. Hence a mere failure to mention in the agreement that they had such share in the property would not entitle one to come to the conclusion that they did not have the share.When the property is owned jointly, unless it is shown to the contrary, it has to be held that each one of the joint owners owns a moiety of the property. In the present case, there is neither a pleading nor a contention that the respondent and his sister did not own the property in equal shares. Secondly, the agreement of sale clearly mentions that the respondent was entering into the agreement both on behalf of himself and his sister, and that he was, under the agreement, selling the whole of his share and also whole of the share of his sister in the property. Further in the agreement itself he had stated that he was responsible to get the sale deed executed by his sister and that he would persuade her to do so.This being the case, the properties agreed to be sold were clearly distinguishable by the shares of the respective vendors. In the circumstances when the absentee vendor, for some reason or the other refused to accept the agreement, there is no reason why the agreement should not be enforced against the vendor who had signed it and whose property is identifiable by his specific share.

21. In the case of Sardar Singh (supra) the Apex Court was considering a similar question raised in that case. The Apex Court reiterated the same principles of law and held as under:_

In view of the finding that the appellant had half share in the property contracted to be sold by Kartar Lal, his brother, the agreement of sale does not bind the appellant. The decree for specific performance as against Kartar Lal became final. Admittedly, the respondent and her husband are neighbours. The appellant and his brother being coparceners or co-owners and the appellant after getting the tenant ejected both the brothers started living in the house. As a prudent purchaser Joinder Nath ought to have made enquiries whether Kartar Lal had exclusive title to the property. Evidence of mutation of names in the Municipal Register establishes that the property was mutated in the joint names of the appellant and Kartar Lai and was in joint possession and enjoyment. The Courts below, therefore, have committed manifest error of law in exercising their discretion directing specific performance of the contract for the entire property. The house being divisible and the appellant being not a consenting party to the contract, enquiry and justice demand partial enforcement of the contract, instead of refusing specific performance in its entirety, which would meet the ends of justice. Accordingly we hold that Joinder Nath having contracted to purchase the property, it must be referable only in respect of half the right, title and interest held by Kartar Lal, his vendor. The first respondent being successor-in-interest; becomes entitled to the enforcement of the contract of the half share by specific performance. The decree of the trial court is confirmed only to the extent of half share in the aforesaid property. The appeal is accordingly allowed and the decree of the High Court is set aside and that of the trial court is modified to the above extent The parties are directed to bear their own costs throughout.

22. Having regard to the admitted facts that in the petition the defendant- respondent has been allotted 1/5th share and there was concession on the part of the plaintiff to get a decree for specific performance on payment of some consideration. I am of the view that the learned trial court was fully justified in granting the decree for specific performance, in respect of 1/5th share of the defendant-respondent in the suit property. I am further of the opinion that in the light of the principles laid down by the Apex Court in the aforementioned decisions, the learned Single Judge was not justified in reversing the decree of the trial court and granting a decree for alternative relief claimed by the plaintiff.

23. For the reasons aforesaid, this appeal is allowed, the impugned judgment passed by the learned Single Judge is set aside and the judgment and decree passed by the trial court are restored and affirmed. However, there shall be no order as to costs.