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2012 DIGILAW 871 (BOM)

Sarjerao Sahebrao Salunkhe v. Ekanath Appa Kadam

2012-04-26

R.M.SAVANT

body2012
Judgment The above Second Appeal arises out of the judgment and order dated 27.1.2011 passed by the learned District Judge-1, Karad, by which the Appeal filed by the appellants herein came to be dismissed and the decree of dismissal passed by the Trial Court in Regular Civil Suit No.495 of 1986 came to be confirmed. 2. It is not necessary to burden this order with unnecessary facts. 3. The facts necessary to be cited for adjudication of the above Appeal can be stated thus: The Suit filed by the appellants herein, being Regular Civil Suit No.495 of 1986, was for specific performance of the registered Agreement to Sale dated 17.03.1979 executed by Eknath Kadam in their favour. By the said agreement, the said Eknath had agreed to sale the suit land to the plaintiffs for consideration of Rs.15,000/-. The said amount was paid by the plaintiffs to Eknath Kadam on the said day itself and the registered Agreement to Sale was executed on the same day. The possession of the land was also delivered to the Plaintiffs on the same day. The terms of the agreement postulated that Eknath Kadam would obtain the permission of the authorities for sale of the land under the Bombay Tenancy & Agricultural Lands Act, 1948, (hereinafter referred to as "the BTAL Act"). This was necessitated in view of the provisions of Section 32-G of the said Act. It was the case of the Plaintiffs that they were always ready and willing to perform their part of the agreement, whereas the defendant was not and had taken the plea that the said transaction was nominal transaction of mortgage and not for sale. The defendant, in his Written Statement, accepted execution of the agreement, but, it was his case, as indicated above, that it was nominal agreement for sale, which was executed for the purpose of security of the loan and, that, there was no intention to act upon the said Agreement to Sale. It was the case of the defendant that, at the relevant time, he was in need of money to dig the Well for installation of the electric motor therein and for laying of pipeline as well as to satisfy the other loans, that he had executed the said agreement. 4. The Trial Court framed the following issues and answered them, which answers are found by the side of the issues : 5. 4. The Trial Court framed the following issues and answered them, which answers are found by the side of the issues : 5. As can be seen from the findings recorded by the Trial Court, the Trial Court held that the defendant had agreed to sale the suit land for Rs.15,000/-. The Trial Court has further held that the plaintiffs were ready and willing to perform their part of contract. However, insofar as the grant of specific performance is concerned, the Trial Court, relying upon Section 43 of the BTAL Act, rejected the said relief sought by the plaintiffs on the ground that in view of the absence of permission from the Competent Authority under the BTAL Act, the said relief could not be granted to the plaintiffs. However, it is significant to note that the theory propounded by the defendants that the said transaction was nominal and against the public policy as well as whether the suit filed by the plaintiffs was false and frivolous was decided against the defendants. 6. The plaintiffs being dissatisfied with the decree passed by the Trial Court, though it had ordered the defendants to pay the amount of Rs.10,000/-towards damages, carried the matter in Appeal by filing Regular Civil Appeal No.59 of 2001. The lower Appellate Court, as indicated above, by the impugned judgment and order dated 27.01.2011, has dismissed the Appeal and thereby confirmed the decree passed by the Trial Court. The lower Appellate Court, as can be seen, has confirmed the finding of the Trial Court as regards the agreement, which was in favour of the plaintiffs and the readiness and willingness of the plaintiffs. However, insofar as the grant of specific performance is concerned, the lower Appellate Court, relying upon Section 43 and the judgment of the learned Single Judge of this Court in the case of Lotan Ramchandra Shimpi Vs. Shankar Ganpat Kayasth, reported in (1995) 1 Mah.L.J. 80, held that in the absence of ISSUES FINDINGS Do Defendants prove that 1 suit transaction dated17.3.1979 is nominal ..In the negative. and against public policy? Do Defendant prove that suit filed by the Plaintiff is false 2 and frivolous and vexations? If yes, he entitled to compensatory cost of Rs.2,500/-from thePlaintiff. ..In the negative. 3 Do Plaintiff prove that, Defendant agreed to sell suit land for Rs.15,000/-by Sathekhat dated17.3.1979? ..In the affirmative. and against public policy? Do Defendant prove that suit filed by the Plaintiff is false 2 and frivolous and vexations? If yes, he entitled to compensatory cost of Rs.2,500/-from thePlaintiff. ..In the negative. 3 Do Plaintiff prove that, Defendant agreed to sell suit land for Rs.15,000/-by Sathekhat dated17.3.1979? ..In the affirmative. 4 Do Plaintiffs prove that they were ready and willing to perform their part of contract? ..In the affirmative. 5 Are Plaintiffs entitled to specific performance asprayed? ..In the negative. 6 What decree and order? ..As per final order. the permission of the Competent Authority under the BTAL Act, the defendant could not have entered into an agreement for sale with the plaintiff in respect of the property which was covered by a certificate issued under Section 32-G of the said Act. It is the said judgment and order passed by the lower Appellate Court which is impugned in the present Second Appeal. 7. At this stage, it is required to be noted that the respondents herein had filed Regular Civil Suit No.255 of 1986 for setting aside the said Agreement to Sale dated 17.03.1979 on the ground that it was nominal and for recovery of possession of the suit property and for mesne profits. The said suit came to be dismissed by the same learned Judge of the Trial Court by judgment and order dated 10.07.2001. The three issues which are relevant in the context of the above Second Appeal are issue Nos.1, 2 and 3 framed in the said suit. The said issues were answered against the respondents, who were plaintiffs in the said suit. The issue whether the Sale Deed was nominal was answered against the plaintiffs. 8. The substantial question of law, which, therefore, arises for consideration in the above Second Appeal is : (a) Whether the Courts below were right in refusing to grant the relief of specific performance, as the transaction in question was invalid and illegal, in view of the fact that the permission of the Competent Authority was not obtained under Section 43 of the BTAL Act? (b) Whether a direction to hand over the vacant and peaceful possession of the suit land, without any encumbrance to the defendants, is contrary to the judgment and decree dated 10.07.2011 passed by the learned 3rd Joint Civil Judge, Karad, in Regular Civil Suit No.255 of 1986? 9. (b) Whether a direction to hand over the vacant and peaceful possession of the suit land, without any encumbrance to the defendants, is contrary to the judgment and decree dated 10.07.2011 passed by the learned 3rd Joint Civil Judge, Karad, in Regular Civil Suit No.255 of 1986? 9. Heard the learned counsel for the parties. On behalf of the appellants, i.e. the original plaintiffs, it was contended that in the light of the dismissal of the suit filed by the respondents herein, being Regular Civil Suit No.255 of 1986, which was specifically filed for getting back the possession of the suit property, the decree passed by the Trial Court directing the appellants herein to hand over the possession of the property in a suit filed for specific performance by them was erroneous. The learned counsel would contend that refusal of the Trial Court to exercise discretion in favour of the plaintiffs, in view of the fact that the permission of the Competent Authority was not obtained under Section 43 of the BTAL Act, was not a proper exercise of the discretion vested in the Trial Court. The learned counsel would contend that the permission required under Section 43 of the BTAL Act, is for the execution of the gift, sale etc. However, it is well settled that an Agreement to Sale does not confer any right and, therefore, both the Courts below had erred in relying upon the judgment of a learned Single Judge of this Court in the case of Lotan Ramchandra Shimpi (supra). The learned counsel placed reliance on two judgments of two learned Single Judges of this Court, the first of which is in the case of Sitaram Ganu Mhaskar & Anr. Vs. Keshav Ramchandra Shelor & Anr., reported in 2001 (4) ALL MR 116, wherein a learned Single Judge of this Court has held that since an Agreement to Sale does not confer any right, permission under Section 43 of the BTAL Act is not required for the same. The learned Judge in the said judgment has dealt with the judgment in the case of Lotan Ramchandra Shimpi (supra) and has held that the said judgment has been rendered without appreciating the import of Section 43 of the BTAL Act and is, therefore, per incurium. The second judgment is the judgment in the case of Balu Baburao Zarole & Ors. Vs. The second judgment is the judgment in the case of Balu Baburao Zarole & Ors. Vs. Shaikh Akbar Shaikh Bhikan & Ors., reported in AIR 2001 Bombay 364, wherein the learned Single Judge has held that the relief of specific performance, if necessary, be granted and can be granted subject to the permission being obtained from the Competent Authority. The learned Single Judge in the said judgment has relied upon the judgment of the Apex Court in the case of Nathulal Vs. Phoolchand, reported in AIR 1970 SC 546 . 10. Per contra, the learned counsel for the respondents sought to defend the order passed by the Courts below. However, he fairly conceded that, the aspect of the impact of the decree passed by the Trial court in Regular Civil Suit No.255 of 1986 filed by the respondent has not been considered by the lower Appellate Court and he, therefore, has no serious objection to the matter being remanded back to the lower Appellate Court for a denovo consideration of the Appeal. 11. I have heard the learned counsel for the parties and I have bestowed my anxious consideration to the rival contentions. 12. Insofar as the decree passed by the Trial Court in Regular Civil Suit No.255 of 1986 is concerned, a reading of the judgment of the lower Appellate Court makes it ex-facie clear that the impact of the said decree on the suit filed for specific performance has not been considered by the lower Appellate Court. As indicated above, the said suit was filed by the respondents herein for cancellation of the Sale Deed dated 17.03.1979 and for getting back the possession of the suit property. Once the Trial Court had dismissed the suit for possession filed by the respondents herein and against the said decree of dismissal, no Appeal was filed by the respondent, it was incumbent on the part of the lower Appellate Court in the instant matter to consider the impact of the said decree of dismissal on the proceedings filed for specific performance. However, as can be seen, the lower Appellate Court, without even adverting to the contents of the said decree, whilst rejecting the suit for specific performance filed by the plaintiffs, i.e. appellants herein, has directed handing over the possession of the suit property to the defendants, though no counter claim or appeal was filed by the respondents. 13. However, as can be seen, the lower Appellate Court, without even adverting to the contents of the said decree, whilst rejecting the suit for specific performance filed by the plaintiffs, i.e. appellants herein, has directed handing over the possession of the suit property to the defendants, though no counter claim or appeal was filed by the respondents. 13. Insofar as the aspect as to whether the specific performance could have been refused to the plaintiffs on the ground that even for entering into an Agreement to Sale, permission of the Competent Authority was required, in my view, in the teeth of the judgments cited (supra) on behalf of the appellants, it is a well settled position that in the light of Section 43 of the said BTAL Act, no permission to enter into an Agreement to Sale is required, as the said agreement does not confer any right on the transferee. However, the lower Appellate Court, relying upon the judgment in the case of Lotan Ramchandra Shimpi (supra), has held that the specific performance could not be granted to the appellants/plaintiffs on the ground that the permission of the Competent Authority was not obtained. As can be seen, the learned Single Judge in the case of Sitaram Ganu Mhaskar & Anr. (supra) has held that the judgment in the case of Lotan Ramchandra Shimpi (supra) is per incurium, as the same has been rendered without considering the scope and ambit of Section 43 of the BTAL Act. Hence, on both the counts, the matter would have to be relegated back to the lower Appellate Court for denovo consideration of the Appeal filed by the plaintiffs herein. In the light of the observations made here-in-above, the questions of law to stand answered accordingly. "ORDER" i) The Second Appeal is, accordingly, allowed. ii) Judgment and order of the lower Appellate Court dated 27.01.2011 is set aside and the matter is relegated back to the lower Appellate Court for denovo consideration of the Appeal. iii) Needless to say, that the contentions of the parties are kept open, to be agitated before the lower Appellate Court. iv) The lower Appellate Court to decide the Appeal on its own merits and in accordance with law. v) The parties are agreeable to appear before the lower Appellate Court on 18th June, 2012. iii) Needless to say, that the contentions of the parties are kept open, to be agitated before the lower Appellate Court. iv) The lower Appellate Court to decide the Appeal on its own merits and in accordance with law. v) The parties are agreeable to appear before the lower Appellate Court on 18th June, 2012. The lower Appellate Court, thereafter, to decide the Appeal within three months of the parties appearing before it. vi) In view of the disposal of the Second Appeal, Civil Application No.1109 of 2011 does not survive and the same to, accordingly, disposed of as such.