SUDHIR JAGGI AND ANR. versus SUNIL AKASH SINHA CHOUDHURY AND ORS.

Citation: [2004] SUPP. 3 S.C.R. 471 · Decided: 11-08-2004 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Dismissed

Judgment (excerpt)

SUDHIR JAGGI AND ANR. 
A 
v. 
SUNIL AKASH SINHA CHOUDHURY AND ORS. 
AUGUST 11, 2004 
[ASHOK BHAN AND S.H. KAPADIA, JJ.] 
B 
Specific Relief Act, 1963-Section 6-Agreement of sale-Developer 
handing over possession of flats-Buyer carried out work of permanent 
nature and had also keys of the flats with him-Developer sold flats to other 
parties on account of non-payment of full consideration amount by buyer- C 
Dispossession of buyer-Suit for specific performance-Courts below 
ordering repossession in favour of buyer-Correctness of-Held : Courts 
below rightly decreed the suit since dominion/control over the suit flats was 
with the buyer and he was dispossessed without observing the due process 
of law. 
D 
Buyer entered into an agreement with the developer-appellant in 
one of the appeals, for purchase of two flats. Subsequently, the 
agreement was varied and in terms thereof in May 1967, buyer was 
given possession of the two incomplete flats. On obtaining possession 
buyer erected walls, partitions, doors, windows and collapsibles at his 
own cost and also the keys to the suit flats were with the buyer. Buyer E 
paid Rs. 2,22,168 out of the total consideration amount and agreed to 
pay the balance amount in full settlement upon execution of convey-
ance in his favour for the two flats. Thereafter, appellant-defendant 
Nos. 2 and 3 who were illegally put in possession of the two flats by 
developer on 3.1.1979. Buyer filed the present wit Single Judge of F 
High Court held that dispossession had taken place.11ine_e there was no 
evidence of agreement between the developer and dcf~ndant Nos. 2 and 
3, of consideration having been received by the developer from 
defendant Nos. 2 and 3 and of delivery of possession by the develop-
ment to defendant Nos. ~ and 3 and as such decreed the suit under G 
section 6 of Specific Relief Act, I 963 in favour of plaintiffs, executors 
of the will of the buyer. Division Bench upheld the order. Hence the 
present appeals. 
It was contended by the developer that the buyer was never put 
in possession of the suit flats; that in May I 967 when the flats were H 
471 
472 
SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R. 
A handed over, they were not ready and were shell like structure, without 
doors and windows a~d the buyer was given only an access to execute 
the interiors which ,could not constitute control or dominion or 
possession of the suit llat; that since the buyer was entrusted with the 
work of completing the flats on behalf of the developer, it was a case 
B of permissive possession; that there is no evidence of dispossession of 
the buyer by the developer or by appellant-defendant Nos. 2 and 3; and 
that defendant Nos. 2 and 3 were bonajide purchasers who are in 
possession since 3.1.19'79. 
c 
Dismissing the appeals, the Court 
HELD : There is no substantial question of law arising in these 
civil appeals. Both the Courts below on consideration of both oral and 
documentary evidence on record have come to the conclusion that in 
May, 1967 two incomplete flats were handed over to the buyer who 
D as purchasers under 0 e modified terms agreed to construct partition 
walls, doors and windows inside the flats and even put collapsibles and 
also the keys to the suit flats were with the buyer. In the circumstance, 
both the Courts below have concluded that the dominion/control over 
the suit flats was with the buyer. There is no reason to disturb these 
findings of fact. There is no evidence on record to show that the buyer 
E was allowed to execute the work on behalf of the developer. Further 
it is established that the buyer was allowed to do the work of 
permanent nature and even the keys of the flats were with him which 
shows that the intentio,1 was to put the buyer in possession. There is 
no term in the agreem1 nt between the parties under which the buyer 
F was obliged to return the possession of the flats on completion of the 
work. Hence, the developer has failed to prove permissive possession. 
Moreover, there is no evidence of transfer of the suit flats by the 
developer to alleged bowfide purchasers-defendants Nos. 2 and 3. In 
the circumstances, both the Courts below were right in coming to the 
conclusion that buyer was put in possession of the suit flats in May, 
G I 967 and was wrongly dis possessed by the appellants without following 
due process of law, and as such were right in decreeing the suit under 
section 6 of the Specific Relief Act. (476-C-G] 
Supdt. And

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