B. S. A. SWAMY, J. ( 1 ) IN these two appeals the common question that arises for consideration is whether the agreement of sale entered into between the parties became frustrated as held by the Courts below accepting the contentions of the respondents herein. ( 2 ) THOUGH the parties are different in both the suits they can be disposed of by a common Judgment. One Syed Abdul Razack and his sister Mohamuda Begum agreed to sell thousand square meters of vacant land under two agreement of sales marked as ex. A. 1 in O. S. No. 667 of 1985 and the other agreement executed by Mohamuda begum was marked as Ex. A. l in O. S. No. l 16 of 1986. An advance of Rs. 15,000. 00 was paid in each of the agreement of sale. After sometime they got issued a legal notice stating that the competent authority under urban Land Ceiling Act refused permission to sell the vacant land to the plaintiff and as such the agreement of sale stood cancelled. They also offered to refund the advance paid under the agreement of sale. The plaintiffs contested the claim of the defendants by getting legal notice issued ex. A. 7 dated 16-6-1981. Thereafter, the defendants got a rejoinder Ex. A. 8 dated 1-7-1981 issued. In these circumstances, the agreement holders filed the above suits for specific performance with an alternate prayer to repay the advance with interest at 18% p. a from the date of suit till the date of realisation and also claimed damages with costs. While Metadin Agarwal filed o. S. No. 1161 of 81, Syed Abdul Razack and his brother filed O. S. No. 1160 of 81 against moharnuda Begum. Subsequently these two suits were transferred to IV Additional chief Judge, City Civil Court and they were numbered as O. S. Nos. 667 of 1985 and 116 of 1986 respectively. For the sake of convenience the parties are referred in the judgment as they are arrayed in the suits. The Trial Court framed the following issues in both the suits:1. Whether the defendant duly applied for permission for alienation of the plaint schedule land under the provisions of the Ceiling Act and if so whether the same was finally rejected? 2. Whether the agreement to sell is illegal and unenforceable? 3. The Trial Court framed the following issues in both the suits:1. Whether the defendant duly applied for permission for alienation of the plaint schedule land under the provisions of the Ceiling Act and if so whether the same was finally rejected? 2. Whether the agreement to sell is illegal and unenforceable? 3. Whether the plaintiff is entitled to specific performance as claimed or alternatively to damages and if so how much? 4. To what relief? ( 3 ) BOTH the suits were clubbed together and evidence was recorded in o. S. No. 667 of 1985. In support of their contentions, the plaintiff examined himself as P. W. I and marked Exs. A. l to A. 40. The first defendant, Syed Abdul Razack got examined himself as D. W. I and got marked exs. B. l to B. 20. On appreciation of the oral and documentary evidence the Trial Court came to the conclusion that though the agreement of sale entered into between the parties is true it became unenforceable due to rejection of permission by the competent authority and ultimately granted alternative relief of directing the defendant to refund the advance paid Rs. l5,000. 00under agreement of sale and also to pay a sum of rs. 15,000/- towards damages from 24-8-1978 the date on which the competent authority rejected the permission for the first time under Ex. B. 9 with interest at 6% p. a. in each of the case. ( 4 ) AGGRIEVED by the said judgment and decree of the Trial Court the plaintiffs filed CCCA 47/90 and 48/90. The learned single Judge of this Court confirmed the judgment of the Trial Court. During the pendency of the first appeals, the plaintiff obtained injunction in both the appeals on 5-7-1990. Without taking notice of these injunction orders the defendants sold the lands in question to the third parties on 10-9-1990. The alienees under the sale deeds from the defendants in both the suits sold away their lands to third parties by executing four sale deeds in September and november along with other family members jointly to show that the plots belong to the whole family. Having come to know of this, the plaintiffs brought them on record as party respondents. The alienees under the sale deeds from the defendants in both the suits sold away their lands to third parties by executing four sale deeds in September and november along with other family members jointly to show that the plots belong to the whole family. Having come to know of this, the plaintiffs brought them on record as party respondents. Thereafter the plaintiffs filed CMP 18550 of 1991 for appointment of an advocate Commissioner to localize the land that was sold by the contesting defendants in the suit along with the survey numbers. This Court appointed an Advocate Commissioner and the Advocate Commissioner submitted a detailed report including the difficulties he has to face in executing the warrant. Ultimately in his report he stated that the land covered by the suit agreement of sale and the land sold under the four sale deeds to the Respondents 7 to 13 are one and the same. To complete the narration of facts since the defendants sold the land in violation of the interim injunction granted by this Court on 5-7-1990 the plaintiffs filed cma No. 6727 of 93 to punish the defendants under Order 39 Rules 2a read with 151 CPC seeking detention of the defendants in civil prison and to attach their property in the hands of the alienees. Initially, this Court having found that the defendants violated the injunction order and alienated the properties passed orders for their detention in civil prison for a period of three months. However, the learned judge refused to attach the land on the ground that the ownership has passed out to third parties. Subsequently, review applications have been filed by contending that the punishment imposed is too severe and alternative punishment to attach the property of the defendants would suffice. He has also brought to the notice of this Court that a sum of Rs. 75,000. 00 is in deposit in the Vijaya Bank and that amount may be attached instead of sending the defendants to civil prison. The learned judge having acceded to the request of the defendants modified the order passed earlier on 3-8-1993 by directing attachment of the amount of Rs. 75,000. 00 that was lying to the credit of S. B. Account No. 7756, vijaya Bank, West Marredpalle and suitable orders will be passed for awarding compensation to be realized. The learned judge having acceded to the request of the defendants modified the order passed earlier on 3-8-1993 by directing attachment of the amount of Rs. 75,000. 00 that was lying to the credit of S. B. Account No. 7756, vijaya Bank, West Marredpalle and suitable orders will be passed for awarding compensation to be realized. When the plaintiffs carried the matter by filing appeal, lpa No. 193/93 a Division Bench of this court held that the learned Judge is not justified in modifying the sentence and restored the initial order dated 8-4-1993 and the defendants carried the matter to supreme Court and the Supreme Court in SLP No. 17226 of 1993 by order dated 20-3-1994 held that under Order 39 Rule 2a of CPC the Court is not only competent to impose punishment but is also competent to recall the order or modify the terms depending upon the facts and circumstances of each case. Their Lordships held that the order dated 3-8-1993 does not amount to reviewing earlier orders and is only modification of the order which is permissible under Order 39 Rule 2-A CPC. Subsequently, when the appeal came up for hearing a learned Judge of this Court agreed with the view taken by the Trial court and dismissed the appeal by confirming the judgment of the Trial Court by order dated 5-11-1996. Hence these two lpas. ( 5 ) SINCE the subject-matter is one and the same we would like to refer to the documents marked in O. S. No. No. 667 of 1985 from which LPA 168 of 1996 has arisen. ( 6 ) AS stated supra, the only question that arises for consideration in these lpas could be whether the agreement of sales entered into by the defendants with the plaintiffs on 27-6-1978 in both the suits have become frustrated by virtue of the orders passed by the competent authority rejecting permission to alienate the lands in his proceedings Ex. A. 16 dated 8-8-1980. ( 7 ) COMING to the facts of the case one syed Jalal was owning extensive properties died leaving wife and two sons and three daughters and vast extent of landed properties in S. Nos. 10,11,15 and 71 of west Marredpalle Village in the Cantonment area, Secunderabad. This land is popularly known as Jalal Garden. A. 16 dated 8-8-1980. ( 7 ) COMING to the facts of the case one syed Jalal was owning extensive properties died leaving wife and two sons and three daughters and vast extent of landed properties in S. Nos. 10,11,15 and 71 of west Marredpalle Village in the Cantonment area, Secunderabad. This land is popularly known as Jalal Garden. From the undisputed maps filed in various proceedings it is noticed that the land occupied by the residential houses on the northern side is divided by 30ft. wide road from the rest of the land. At some point of time some houses were shown on the southern side of the land to some extent. The rest of the land is shown as vacant land. After Urban Land Ceiling Act came into force, Syed Abdul Razack, the defendant in the suit filed declaration on behalf of all the family members i. e. , under Ex. A. 30 dated 10-8-1976/12-8-1976 wherein he has shown the total extent of vacant land owned by the family as 29,980 sq. mts. in West Marredpalle and in the map filed along with the declaration the vacant land to be retained by each of them was clearly demarcated (Ex. A. 31 ). In this declaration of course they have not included the land occupied by their residential houses. Along with the declaration they filed a map, ex. A. 31 wherein they have indicated the extent of open land they want to retain as per the provisions of the Act. As per the map the land sought to be retained by the family members are on the either side of the 30ft. road dividing the residential houses and open land. After verification the competent authority included an extent of 2253 Sq. Mts. occupied by the residential houses, issued final statement under Section 9 of the Act ,the extent of vacant land that can be retained by each member of the family by proceedings dated 13-4-1997 separately for each member of the family duly identifying which is marked as ex. A-25 in the suit. As far as the defendant in this case is concerned he declared that he owns land 77. 450 hectors of excess vacant land and after deducting the land that can be retained under Urban Land Ceilings Act i. e. , thousand square metres of vacant land he was owning 67. 450 hectors of vacant land. A-25 in the suit. As far as the defendant in this case is concerned he declared that he owns land 77. 450 hectors of excess vacant land and after deducting the land that can be retained under Urban Land Ceilings Act i. e. , thousand square metres of vacant land he was owning 67. 450 hectors of vacant land. Part D of this statement shows the details of the vacant land to be retained by him. As per this Mr. Syed Abdul Razack wanted to retain one thousand square meters in the revised S. Nos. 10 and 71. Part-F deals with the land to be surrendered. As per this declaration, the defendant has to surrender 6744. 50 Sq. mts in revised Survey Nos. 11, 15, 10 part and 71 part. As stated supra while filing declaration itself the members of the family have categorically shown in the map the vacant land they wanted to retain and while issuing the final statement, the authorities concerned deducted that land and determined the surplus land held by them. At this stage Syed Abdul Razaack as well as his sister entered into separate agreement of sales on 27-6-1978 but identical with Matadin Agarwal and his brother directly enclosing the map of the land that was sought to be sold. The agreement executed by Razak and the map enclosed are marked as Exs. A-1 and A-2. "agreement OF SALE agreement of sale executed by and between syed Abdul Razack aged 34 years, son of syed Jalal, residing in Premises No. 3-9-47, situated at Syed Jalal Garden Cantonment area, Secunderabad, hereinafter called the first Party and Sri Matadin Agarwal, aged 47 years, son of Giridharilal, residing in 19/ 2, R. T, T. I. T, Block, West Marredpalle, secunderabad, hereinafter called the second party. The first party along with his brother, Syed abdul Rehman, aged 41 years, and sisters sharifunnissa Begum, aged 43 years, aktharunissa Begum, aged 32 years, mahmooda Begum, aged 29 years, and mother Kareemunissa Begum, aged 58 years are owners of Survey No. 71, and statements under the Urban Land Ceiling Act have been filed separately before the Competent authority, and the Competent Authority under the said Act has permitted the first part to retain 1000 Sq. mts equal to 1196 sq. yards in Survey No. 71, situated at Syed Jala gardens, Marredpally, Secunderabad, under section 9 of the Urban Land Ceiling Act. mts equal to 1196 sq. yards in Survey No. 71, situated at Syed Jala gardens, Marredpally, Secunderabad, under section 9 of the Urban Land Ceiling Act. The second party has requested the first party to sell 1000 Sq. mts. equal to 1196 sq. yards belonging to him in Survey No. 71, and the first party agreed to do so subject to the following terms and conditions: 1. The first party agrees to sell to the second party l,000sq. mts. equal to 1196 sq. yards of plot No. 2, situated in survey No. 71, West marredpally, Secunderabad, marked red in the plan annexesd herewith, bounded on the north by plot No. 4 of Mahmooda Begum, south by Plot No. l, belonging to kareemunissa Begum, West by land of Survey No. 71 and East by Katcha road 30 feet road at Rs. 50. 00 (Rs. fifty only) per sq. yards subject to measurement for a total sum of Rs. 59,800/ (Rupees fifty nine thousand eight hundred only ). If there is any excess land it shall be paid at the agreed rate of Rs. 50. 00per sq. yard. 2. The second party has to-day paid to the first party a sum of Rs. 15,000. 00 (Rupees fifteen thousand only) as advance, and the balance sum of Rs. 44,800. 00 (Rupees forty four thousand eight hundred only) shall be paid to the first parry at the time of registration of sale deed. 3. The first party shall execute the sale deed in favour of the second party. 4. The first party hereby undertakes to obtain the necessary sanctions from the concerned ceiling Authority, to sell to the second party, the said plot of land at the expense of the first party. The second party undertakes to sign all the necessary papers that are required for the sanction to be obtained. The first party has not submitted a layout to the Cantonment Authorities nor did he get any sanction and this has been made a clear to the second party. 5. The second party has to bear any extra betterment charges and the first party is not concerned with the same. 6. The first party has not submitted a layout to the Cantonment Authorities nor did he get any sanction and this has been made a clear to the second party. 5. The second party has to bear any extra betterment charges and the first party is not concerned with the same. 6. At the request of the second party the first party has agreed for getting his brother s, his sisters and mother to sign as attesting witnesses to the document of sale deed, in token of their not having any right or interest to the plot of land herein agreed to be sold and that the first party is absolute owner of the plot agreed to be sold. 7. The first party shall execute the sale deed in favour of the second party within six months from the date of intimation in writing by the first party to the second party of the permission granted to sell by the Urban Land ceiling Authorities. 8. If the second party fails to pay the balance consideration of Rs. 44,800. 00 (Rupees Forty four Thousand Eight Hundred Only) by the due date, and refuses to purchase after permission is granted, the second party shall forfeit the advance of Rs. l5,000. 00 (Rupees fifteen thousand only) paid by them to the first party. If the first party fails to execute the sale deed by the due date, after the permission is granted the first party shall not only refund to the second party the advance sum of Rs. 15,000. 00 but shall also pay to the party an additional sum of Rs. 15,000. 00 as damages. 9. In case permission to sell to the second party is refused by the ceiling Authority, then the first party shall refund to the second party the advance sum of Rs. 15,000. 00 (Rupees fifteen thousand only) within one month from the date of refusal. 10. The second party agrees to bear all expenses of registration, stamp, preparation of plans, drafting fees, etc. , and shall show the draft of approval to the first party before the due date. 11. Time is the essence of contract. Executed on this the 27th day of June, 1978 at Secunderabad. WITNESSES: l. Sd. Syed Abdul Rehman. Sd. Syed Abdul razak, first party. 2. Sd. V. A. Gupta Sd. Matadin agarwal, second party. , and shall show the draft of approval to the first party before the due date. 11. Time is the essence of contract. Executed on this the 27th day of June, 1978 at Secunderabad. WITNESSES: l. Sd. Syed Abdul Rehman. Sd. Syed Abdul razak, first party. 2. Sd. V. A. Gupta Sd. Matadin agarwal, second party. " ( 8 ) FROM the above it is seen that the defendant made the plaintiff to believe that the competent authority allowed him to retain 1000 Sq. mts. as per the final statement under section 9 and he is fully competent to alienate the property in S. No. 71 and under clause 1 of the agreement he agreed to sell 1000 Sq. mts. of vacant land for a consideration of Rs. 59,800. 00 at the rate of rs. 50/- per Sq. yard. Under Clause 2 he received Rs. 15,000. 00 towards advance and the remaining sale consideration has to be paid at the time of registration of sale deed. He undertook to obtain all necessary sanctions for conveyance of the property under Clause 4. Since Clauses 5 and 6 are not very much relevant for the case we are not adverting to it. Under Clause 7 the vendor has to execute sale deed in favour of vendee within six months from the date of intimation from the Authorities under the urban Land Ceilings Act in writing granting permission to sell the vacant land. Under clause 8 if the vendee fails to pay the remaining sale consideration and obtain sale deed, he shall forfeit the amount of rs. 15,000/- paid as advance to the vendor and if the vendor fails to execute the sale deed before the stipulated date after permission is granted, he shall not only refund the advance amount but also pay to the vendee an additional amount of rs. 15,000/- as damages. In the map annexed the land sought to be sold was also shown as plot No. 2 and out of the plots sought to be retained by the members of the family in s. No. 71. Thereafter, the defendant filed an application before the Competent Authority seeking permission to alienate the land that fell to his share. In that application he categorically stated about the final statement issued under Section 9 of the Act whereunder he was permitted to retain 1000 Sq. mts. Thereafter, the defendant filed an application before the Competent Authority seeking permission to alienate the land that fell to his share. In that application he categorically stated about the final statement issued under Section 9 of the Act whereunder he was permitted to retain 1000 Sq. mts. of vacant land which correlates to the land shown in Ex. A-2 plan annexed to Agreement of Sale, Ex. A-1. In proof of filing the application he filed Ex. B. l receipt dated 30-6-1978. This application was considered under Section 26 of the Act and the competent authority by his proceedings dated 24-8-1978 under Ex. B. 9 refused permission to sell the land as no person holding excess vacant land shall transfer any unless final notification is issued under Section 10 (1) of the Act as per Section 5 (3) of the Act. Subsequently, the competent authority issued final notification under Section 10 (1) of the act on 30-6-1978 and the paper notification is marked as Ex. B-1. In this notification the excess land that has to be surrendered by each of the family member was mentioned. Again on 29-4-1980 Mr. Razack applied for permission to alienate the land under Ex. B2 wherein not only the names of both the plaintiffs in the suits were mentioned but also enclosed their affidavits stating that they do not own any vacant land. Again, the competent authority by his proceedings dated ex. B. 10 dated 26-6-1980 refused permission to sell the land by observing that the land proposed to be sold includes the built up area and hence the request for transfer of vacant land as applied cannot be accorded. When the agreement itself shows that only vacant land is sought to be transferred it is not known how this authority jumped at the conclusion that this land includes built up area. Assuming that there is built up area in the land to be alienated after the proceedings under the Act became final and the landholder is not selling the surplus land that has to be surrendered we are not able to understand what objection this competent authority is having in giving permission. Be that as it may it appears to us that the authorities clearly colluded with the defendant in issuing this order to defraud the claims of the plaintiffs. We also find another proceedings under Ex. Be that as it may it appears to us that the authorities clearly colluded with the defendant in issuing this order to defraud the claims of the plaintiffs. We also find another proceedings under Ex. A. 16 dated 8- 8-1990 of the competent authority wherein he indicated the built up area and the vacant land to be owned by each of the members of the family. In the last he stated that the defendant was advised to submit a plan showing the built up area and vacant land as shown above to be retained by him as per prescribed ceiling limit. It is useful to extract that letter which runs as follows: no. ULC/sbd/glr S. No. /s-26/734/80 military Estates Office (ULC) court House Compound, Secunderabad- 500003 dated: 8-8-1980 to s/sri S. A. Razack s. A. Rahman, mahnmooda Begum, Sharafunisa Begum. 3-9-47, Syed Jalal Garden, Marredpally, secunderabad sub: Notice under Section 26 of ULC Act-76 ref: Your letter dated 30-7-1980 out of your prescribed ceiling limit of 1000 sq. mts. your individual share of urban properties including built up area/vacant land are as under: @@ s. No. Name built up area vacant land in including sq. mts. appurtenant lands in sq. mts. 1. Mr. S. A. Razak 563. 25 436. 75 2. Mr. SA Rahman 563. 25 436. 75 3. Miss. Mahmooda Begum 281. 62 718. 38 4. Mrs. Sharafunisa 281. 62 718. 83 @@ you are advised to submit a plan showing the built up area and vacant land, as shown above, to be retained by you, as per prescribed ceiling limit. Sd/- military Estates Officer (ULC), seeunderabad-3" it is also interesting to see this letter. Under Muslim Law of inheritance the shares of male members and female members of the family are different and the female members get less share. Once again we are not able to understand the attitude of the competent authority in jumping at the conclusion that the declarants want to retain the built up area and also in apportioning the built up area and vacant land between the male members and female members of the family. As seen from Ex. A-31 appended to Ex. A-3 the declaration the built up area is on the northern side of 30 ft road and the vacant land to be retained is on the southern side of the road. As seen from Ex. A-31 appended to Ex. A-3 the declaration the built up area is on the northern side of 30 ft road and the vacant land to be retained is on the southern side of the road. Be that as it may any prudent man who intends to honour the agreement of sale would have filed a letter before the competent authority stating that he is not selling the land occupied by the building and the land that is offered to sell is altogether different from the residential building or he would have questioned the correctness of the order in an appropriate proceedings. Without doing that the defendant got a legal notice Ex. B. 6 and ex. A. 5 17-3-1981 issued stating that the agreement of sale is unenforceable since the competent authority refused permission and offered to refund the advance under the agreement of sale. Having received the said letter the plaintiff sent a legal notice through their Counsel dated 16-6-1981 under ex. A. 7. It was mentioned that the agreement was entered into between the parties and they categorically stated the map he has shown to them clearly depicted the open land sought to be retained by giving plot numbers. Paragraph 9 of the reply notice, ex. A-7, which is crucial is extracted hereunder:"9. Subsequently, your client informed our client that he had made a further application to the Competent authority for permission to sell to our client the said Plot No. 2 or whatever the area which he was entitled to alienate as per the Urban Land (Ceiling and Regulations) Act, 1976 and showed our client a copy of the said application. At that time also he reiterated his undertaking to sell the premises agreed upon, or in any case the area which he would be permitted to retain on demarcation thereof, and our client agreed to purchase the same at the rate provided in the agreement. " ( 9 ) FROM this it is evident that the plaintiff clearly brought to the notice of the defendants that the land sought to be alienated to them is a vacant land and if the competent authority refused to give permission for the entire land they are willing to purchase the extent of land to which permission was granted. " ( 9 ) FROM this it is evident that the plaintiff clearly brought to the notice of the defendants that the land sought to be alienated to them is a vacant land and if the competent authority refused to give permission for the entire land they are willing to purchase the extent of land to which permission was granted. At this juncture it is very interesting to note that while trying to wriggle himself out of the agreement he started simultaneously negotiating with gln Raju, promoter of Murthy Co-operative society to sell the vacant land of 21000 square meters under Ex. A. 37 dated 23-9-1981. It is the first agreement of sale executed by the defendant in his individual capacity. The second agreement of sale was executed by the members of the family on 5-6-1981 under Ex. A. 39. They seemed to have approached for permission of the Central government for alienation of the property. Subsequently after obtaining permission two sale deeds were executed Ex. A-18 dated 7- 8-1992 and Ex. A-20 dated 27-7-1982. Curiously, the defendant himself executed the sale deeds and other members of the family did not join him as other executants of the sale deed. It is also seen that along with this agreement of sale as well as the sale deeds land plans were enclosed. Ex. A-38 is the plan appended to Ex. A-37 agreement of sale and Ex. A-40 is the plan appended to ex. A-39, another agreement of sale. Likewise ex. A-19 is the plan appended to Ex. A. 18. Ex. A-21 is the plan appended to Ex. A-20 sale deed. A cursory look of these plans makes it amply clear that at the time of agreement of sale executed by him in the plan Ex. A-38 he has shown some houses bearing No. 3-9-61 to 72 apart from four open spaces of 400 Sq. yds. each were shown on the southern side. Apart from these plots, the plots of land consisting of 1000 Sq. mts. each to be retained by each of the family members were shown. But in the map appended to the Ex. A- 40 and sale deeds executed in favour of Murthy Co-op. Society exs. A-19 and A-21 the katcha houses are not shown and the entire land in S. No. 71 was shown as vacant. mts. each to be retained by each of the family members were shown. But in the map appended to the Ex. A- 40 and sale deeds executed in favour of Murthy Co-op. Society exs. A-19 and A-21 the katcha houses are not shown and the entire land in S. No. 71 was shown as vacant. The vacant land which they wanted to retain were shown as vacant lands in all these maps. Further we are unable to know how the competent authority under the Urban Land Ceiling Act and central Government permitted the defendant to sell or alienate the surplus land to be surrendered to the Government to the society. In the instant case even after alienating the extent of 26972 Sq. metres of land by the entire family still they own excess land as per the statement under section 9 of the Act. The land in their possession would be 5261 Sq. mts. including 2253 Sq. mts occupied by the buildings. ( 10 ) IN this background we have to see whether the judgment of the Court below is correct or not? ( 11 ) AS stated above, from the date on which they filed declaration under Section 6 of the Urban Land Ceiling Act they have continuously showing the vacant land they want to retain in all the maps filed before the authorities concerned. The maps furnished to the agreement holders the maps furnished to Murthy Housing Co-operative society but somehow the competent authority refused to give permission for alienation of the land by observing that it includes the built up area. At the same time the same competent authority gave permission to sell about 30 thousand square meters of land which was declared as surplus. To our mind it is a pre-determined plan between the competent authority and Syed Abdul Razack to defeat the claims of the agreement holders and to sell away the vast extent of land to murthy Co-operative Society by retaining the remaining land for themselves which comes to around 1000 square meters roughly. Except the proceedings of the competent authority there is no evidence to show that the land that was offered to the plaintiff in both the suits for sale do contain any building and it is purely a vacant site. Except the proceedings of the competent authority there is no evidence to show that the land that was offered to the plaintiff in both the suits for sale do contain any building and it is purely a vacant site. We have already observed that in case of surplus landholder no prior permission of the competent authority is required under section 26 of the Act if he wants to sell the land which he would be entitled to retain under the provisions of the Act. Assuming that permission under Section 26 is required, when notice of intended sale is given the Competent Authority has to exercise the option whether to purchase the property or not. But, he has no authority to reject the application. In this way he wanted to cheat or deceive the agreement holders. During the pendency of the appeal he invented a new idea by taking a stand that there was no partition between the parties and all the members of the family sold their undivided share of land to the respondents 7 to 13 during the pendency of the first appeal before this Court. Though Mr. Syed Abdul razack filed declaration on behalf of the members of the family, the competent authority passed individual orders in case of all the members of the family. This fact cannot be and could not be disputed by the defendants for the simple reason that 10 (1) notification clearly shows the extent of land to which each of the member of the family is entitled to retain under the provisions of the Urban Land Ceiling Act. Further while he himself and Karimunnisa entered into agreement of sale with the plaintiff herein he alone entered into agreement of sale with Murthy Co-operative society under Ex. A-37 and he made all other family members party executants to agreement of sale Ex. A-39. Coming to the execution of sale deeds, he alone executed the sale deeds Exs. A. 18 and A-20. From the map it is seen that the names of the individuals to whom the area was allotted and to be retained was mentioned. Subsequently, in the agreement of sale, ex. A-38 in favour of Murthy Co-operative housing Society the open area that fell to the share of Sheriffunnisa Begum was shifted to the other side of the road since the other vendors open land was sold to the society. Subsequently, in the agreement of sale, ex. A-38 in favour of Murthy Co-operative housing Society the open area that fell to the share of Sheriffunnisa Begum was shifted to the other side of the road since the other vendors open land was sold to the society. The legal notice also clearly establishes the fact that the defendant with a view to give a go-bye to the agreement of sale started playing hide and seek game. The learned Counsel appearing for the defendant submitted that since the consequences that will flow if the agreement of sale is not fructified or mentioned in the agreement i. e. , if the vendee fails to get the sale deed executed within the stipulated time surely he has to repay the advance paid but also another sum of rs. 15,000/- as damages. Hence decree for specific performance cannot be granted. He relied on the decision in Dada Rao v. Ramrao, (1999) 8 SCC 416 , wherein their lordships of the Supreme Court held that there is no obligation on the part of the seller to complete the sale transaction and the contract could not be specifically enforced since the agreement itself provides for contingency that will follow if the agreement do not fructify. In paras 6 and 7 of the judgment their Lordships observed as follows:"6. The relationship between the parties has to be regulated by the terms of the agreement between them. The agreement in this case contemplates that on or before 15-4-1972 the sale deed would be executed. But what is important is that the agreement itself provides as to what is to happen if either the seller refuses to sell or the purchaser refuses to buy. In that event the agreement provides that in addition to the earnest money of Rs. 1,000. 00 a sum of rs. 500/- was to be given back to T and that "no sale deed will be executed". The agreement is very categorical in envisaging that a sale deed is to be executed only if both the parties agree to do so and in the event of any one of them resiling from the same there was to be no question of the other party being compelled to go ahead with the execution of the sale deed. In the event of the sale deed not being executed, rs. 500/- in addition to the return of Rs. In the event of the sale deed not being executed, rs. 500/- in addition to the return of Rs. 1000/ - was the only sum payable. This sum of rs. 500 perhaps represented the amount of quantified damages or, as the defendants would have it, interest payable on Rs. 1000. 00. 7. If the agreement had not stipulated as to what is to happen in the event of the sale not going through, then perhaps the plaintiff could have asked the Court for a decree of specific performance but here the parties to the agreement had agreed that even if the seller did not want to execute the sale deed he would only be required to refund the amount of Rs. 1000/- plus pay Rs. 500. 00 in addition thereto. There was thus no obligation on B to complete the sale transaction. "on the other hand Sri Adinarayana Rao cited a judgment in Prakash Chandra v. Angadlal, AIR 1979 SC 1241 , wherein their lordships observed as follows:"the ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. "their Lordships further held as follows:"a perusal of the terms of the contract indicated that the stipulation for damages was made only for the purpose of securing performance of the contract and not for the purpose of giving an option an option to M and Q of paying money in lieu of specific performance. Even if a sum had been named in the contract for sale as the amount to be paid in case of a breach, the appellant was entitled in law to the enforcement of the agreement. "the next case cited by him is in Nirmala anand v. Advent Corporation Private limited, 2002 (4) ALD 3 (SC ). In that case the Municipal Corporation of Greater bombay the owner of large extent of land gave the land on lease to the predecessors of defendants 4 to 7 on payment of ground rent who in turn entered into agreement with the first defendant to carry on the business of constructing building and sell on ownership basis, to develop the land by constructing two buildings under the suit agreement. The second defendant the promoter of that company got permission on 28-3-1961 to construct the buildings on payment of certain ground rent to the municipality. Thereafter the defendants constructed the first building named Advent in October, 1962 and thirty persons occupied the building by forming into co-operative society named as Foreshore Co-operative housing Society Limited. Thereafter the defendants seemed to have given advertisement in the newspaper for the proposed second building named as "divya prabha" inviting applications for lease of residential flats. Responding to that notification the plaintiffs eight in number and Defendants 9 to 25 entered into agreements with the first defendant. In the meantime as the builders failed to pay the lease amount the Municipal Corporation cancelled the lease and notional possession of the entire plot was taken over by the corporation on 4-8-1969. In those circumstances the purchasers filed suits. The defendants resisted the suit by contending that as a result of termination of lease by Corporation and in the absence of renewal or revival of lease agreement and renewal of the building permission, it was impossible for completing the construction or the performance of the contract with the plaintiffs. On considering the entire case in paragraph 16 their lordships held as follows:"on a careful consideration of the decisions brought to our notice, it can safely be recorded that it is too late in the day to deny a claim for specific performance of an agreement to sell an immovable property in existence or to be brought into existence according to the specification agreed to merely becouse the vendor had to make applications or move the concerned and competent authorities to obtain permission/sanction or consent of such authorities to make the sale agreed to be made an effective and full fledged one. The principles laid down in the above decisions clearly indicate that unless the competent authorities have been moved and the application for consent/permission/ sanction have been rejected once and for all and such rejection made finally became irresolutely binding and rendered impossible the performance of the contract resulting in frustration as envisaged under Section 56 of the Contract Act, the relief cannot be refused for the mere pointing out of some obstacles. Since the agreement to sell, in this case relates to an immovable property, which indisputably is of special value having regard to its location and special importance of the area, it cannot be readily assumed or taken for granted that the respondents opposing the claim of the appellant have discharged their burden to displace the initial statutory presumption engrafted in the explanation (i) to Section 10 of the Specific relief Act. Even the so-called imponderables noticed both by the learned Single Judge and by the Division Bench of the High court, it could not stand in the way of or did not impede the assignment of the rights in the building and the interests in the land in favour of the seventh respondent under the Deed of Assignment dated 14-10-1994, it is beyond comprehension as to what could legitimately be pleaded against for a similar or identical relief being granted in the suit by compelling transfer of such and similar rights to and in favour of the appellant in respect of flat No. 71 on the 7th floor, agreed to be sold which she is prepared to receive and take upon herself at her risk and responsibility even in the complete shape as it stands unless it is that respondent 1 and are trying to avoid their obligations and liabilities to suit their own convenience, wishes and welfare taking advantage of the steep appreciation in the value of the real estate in the locality in question. The competent Courts of Justice, which exercise not only statutory powers, but jurisdiction in equity should not be a mere on looker of an attempt by one of the party to unreasonably, unjustifiably and unethically try to evade specific performance in order to make profit at the expense of the other party to the contract, who, as concurrently found by the learned Single Judge as well as the Division bench of the High Court, was always ready and willing to perform the remaining part of her contract. "here also it appears to us the contract specifies the payment of damages only for the purpose of securing the performance of contract and not for the purpose of evading the contract with a mala fide intention or to enable one party to enrich itself by adopting unethical methods. "here also it appears to us the contract specifies the payment of damages only for the purpose of securing the performance of contract and not for the purpose of evading the contract with a mala fide intention or to enable one party to enrich itself by adopting unethical methods. As observed in Nirmala anand s case the Courts cannot remain as silent spectators or shirk the responsibility when a party to agreement try to frustrate the agreement to make profit at the expense of the other party to the contract. In this case also the defendant having entered into agreement to sell open land of thousand meters each to the plaintiffs took a round about turn by selling the vast extent of property along with other family members which was declared as surplus land to Murthy housing Co-operative Society Limited with the active connivance of the competent authority in obtaining a letter Ex. A-16/b10 dated 26-6-1980 wherein the competent authority says that area sought to be sold include built up area which is absolutely false and the competent authority made such a statement in collusion with the defendant who infact helped him in alienating about 30,000 square meters of land which is declared as surplus land circumventing the provisions of Urban Land Ceilings Act more so after the entire procedure contemplated under the Act is over. Except this letter in all the maps that are filed from the date of declaration till lands were sold under registered sale deeds to the Murthy Housing co-operative Society the vacant sites were clearly demarcated and identified by duly indicating the name of the owner of the land and giving numbers to the plots. Hence the order of competent authority is only camouflage to avoid the completion of the sale transaction. In the light of the foregoing discussion, we cannot agree with the reasoning given by the Trial Court as well as the Learned Single Judge in dismissing the suits, since the land offered for sale do not contain any built up area either as per the agreement of sale or any of the maps that were filed before various authorities. Accordingly we set aside the judgment and decree of the Trial Court and as confirmed by the Single Judge and the suit for specific performance is decreed. Accordingly we set aside the judgment and decree of the Trial Court and as confirmed by the Single Judge and the suit for specific performance is decreed. ( 12 ) NOW the next question that falls for consideration is the alienations made by the defendants in favour of respondents 7 to 13. ( 13 ) THE Advocate Commissioner appointed by this Court in his report dated 15-6-1992 categorically held that the land sold to them is the same land that was sought to be sold to the plaintiffs. Nextly, they purchased the land in violation of the interim order granted by this Court. Since they purchased the properties in question with open eyes the alienations in their favour are hit by the principle of us pendency and they have to suffer for their misdeeds. However, this Court will not come in the way of the defendant if there is any excess land or if they are prepared to give any suitable alternative land to the respondents 7 to 13 in lieu of suit schedule lands. ( 14 ) SRI D. V. Seetharam Murthy the learned Counsel appearing for the alienees strenuously contended that if the defendant is compelled to honour the agreement his client has to surrender the land with structures. In the context of the declaration under Section 6 of the Act wherein the defendant wanted to retain one thousand square meters and it is equitable to ask him to surrender the land with structures. Here we would like to make it clear that due to shabby implementation of the Ceiling laws in the country and lack of commitment on the part of the political and bureaucratic executive we could see the defendants who were declared as surplus landholders way back in 1980 did not even surrender an inch of land. Instead they converted the land into money by alienating the property under the guise of housing Society. Since the declarant has not surrendered any land the question of surrendering the land with structures does not arise. Further in this case the defendants offered the vacant land for sale only after final statement was issued under Section 9 of the Act on 13-4-1977. ( 15 ) NEXTLY, Mr. Seetharam Murthy contended that it is not open to the plaintiff to question the party that the competent authority colluded with the defendants in passing the order. Further in this case the defendants offered the vacant land for sale only after final statement was issued under Section 9 of the Act on 13-4-1977. ( 15 ) NEXTLY, Mr. Seetharam Murthy contended that it is not open to the plaintiff to question the party that the competent authority colluded with the defendants in passing the order. If the defendants are honest and law abiding citizens they would have brought to the notice of the competent authority that there are no structures on the vacant land. If we see at the conduct of the defendant in selling 30000 square metres of land which was declared as surplus by the competent authority to Murthy Co-operative Housing society and in not trying to honour the agreement taking shelter under illegal and innocuous order of the competent authority dated 8-8-1980 under Ex. A-16 and selling the same land to Respondents 7 to 13 during the pendency of the first appeal as seen from the report of the Advocate commissioner leads to an irresistible conclusion that he can go to any extent in defeating the law of the land. The matter can be viewed from another angle also. If the defendants want to honour the agreement nothing prevented them from questioning the order by filing a writ petition in this court or furnishing a copy of the order to the plaintiffs so that they will question the same. On the other hand, he waited for one year after rejection order dated 8-8-1980 and got issued a legal notice issued on 19-3- 1981 saying that the agreement became unenforceable. ( 16 ) MR. Seetharam Murthy contended that his clients are bona fide purchasers. No evidence whatsoever is forthcoming that without the knowledge and connivance they entered into the agreement and purchased the lands after much water has flown. When the land in question is in dispute since 1985 and the land remained vacant, any bona fide purchaser would make enquiries to find out whether the land is involved in any litigation or whether the land is encumbered with any charge before parting with the hard earned monies. In this case on the other hand after the suit was dismissed the plaintiffs filed appeals and obtained injunction restraining the defendant from alienating the property to third parties. In this case on the other hand after the suit was dismissed the plaintiffs filed appeals and obtained injunction restraining the defendant from alienating the property to third parties. Having avoided to receive the notice the defendants sold lands to these people for which he was found guilty and the initial order to send him to jail was modified by attaching Rs. 75,000/.- pending in the Vijaya Bank to decide the compensation payable to the plaintiffs in the suit in the event the suits for specific performance are not decreed. Keeping the totality of circumstances in mind we would like to decree the suit for specific performance and direct the defendant to execute the sale deed for the suit schedule lands in question by duly cancelling the sale deeds executed in favour of the Respondents 7 to 13. If the Court takes any other view in the facts and circumstances of a case of this nature the people who are in the habit of evading law will have the last laugh at the functioning of the institution and its very existence will be at peril. Accordingly the judgment and decree of the Trial Court in O. S. No. 667 of 1985 as confirmed in CCCA 47/90 are set aside and the suit for specific performance is decreed as prayed for. ( 17 ) COMING to LPA No. 169 of 1996 the material facts are one and the same as that of LPA 168 of 96. So the benefit enured to the plaintiff in O. S. No. 667/85 will also enure to the plaintiff in O. S. No. 116 of 86. Accordingly, LPA No. 169/96 is allowed and the judgment and decree of the trial Court in O. S. No. 116 of 86 as confirmed in CCCA 48/90 are set aside and the suit for specific performance is decreed as prayed for. ( 18 ) THE plaintiffs are entitled to the costs throughout. Three months time is granted to execute the sale deed in favour of the plaintiff and deliver possession of the vacant land after receiving the balance of sale consideration. ( 18 ) THE plaintiffs are entitled to the costs throughout. Three months time is granted to execute the sale deed in favour of the plaintiff and deliver possession of the vacant land after receiving the balance of sale consideration. ( 19 ) BEFORE parting with the case we would like to place on record the unhappiness of the Court on the manner in which the competent authority under the Urban Land ceiling Act and the Central Government gave permission to the defendant to alienate the extent of 29,762 square meters which was declared as surplus land by issuing notification under Section 10 (1) of the Urban Land Ceiling Act and defeating the very purpose and object of a welfare legislation.