JUDGMENT
S. Shamsul Hasan, J.
1. Plaintiff is the appellant here whose suit was decreed but the appeal by defendant 2, who is respondent 1 here, was allowed.
2. The property involved in the suit is a small piece of land adjacent sought of plot 69, shown in the map attached to the plaint, and marked with the letters DEF. The relief sought is an order directing defendant 1 (respondent 2 here) improvement Trust, Gaya to execute and register a sale deed for the land marked with the letters DEF in the aforesaid map. There was also a prayer for recovery of possession in case it was found that the plaintiff had been dispossessed by defendant 2 (respondent 1).
3. The case of the plaintiff is that he owned and possessed a house standing over survey plot No. 275 under Khata No. 12 measuring .04 acres bearing Municipal holding No. 70 (i) Ward No. IX, Mohalla Rampur, P. S. Civil Lines, town Gaya. This house and land were acquired by defendant 1 (respondent 2) for its purpose rendering the plaintiff ~ appellant a displaced person and under the provisions of the Bihar Town Planning and Improvement Trusts Act (Bihar Act XXXV of 1951) (hereinafter referred to as ‘the Act’) he was conferred with special status in regard to the settlement of the land by the Gaya. Improvement Trust. Consequently the appellant was allotted a piece of land measuring 116 ft. East to West and 47 ft. North to South out of plot 69, leaving the remaining portion of the land in the said plot with defendant 1, as indicated in the map attached to the plaint and marked with the letters A B C D and D E F, respectively. Since the land in dispute was adjacent to the land of the appellant, defendant 1 offered the same to the appellant for Rs. 822.14 Paise, which offer was accepted and the money was duly deposited and accepted by the defendant Trust. The area -of the land was 101 sq. yards. The offer is apparent from the communication of the Gaya Improvement Trust dated 2-6-1970, which is Ext. 1′. The deposit of Rs. 822.14 paise is proved by Ext. 3, which is the money receipt form, and the delivery of possession is proved by Ext. 4, which is a copy of the note sheet page 23 of file No. XX-30-69, From this receipt it is clear that the delivery of possession of the disputed 101 sq. yards of land was handed over to the appellant by the authority and it was accepted by him (appellant) on 18-7-1970. The suit was filed, therefore, to seek specific performance of the contract by the Gaya Improvement Trust (respondent 2) on the basis of the above documents, after giving due notice to the latter, as stated in paragraph 27 of the plaint and as required by Sec. 151 of the Act. The purported notice is Ext. 1/b dated 21-10-1970. Respondent 2 admittedly is the owner and occupier of plot No. 65, which is to the South of the disputed land. The further case of the plaintiff is that being adjacent to the disputed land respondent 2 started unjustifiably raising a claim to that portion. 4. The case of defendant 2 (respondent 1 here) is, apart from the usual objections, like non-maintainability of the suit, lack of cause of action, absence of the requisite statutory notice to the Gaya Improvement Trust (in short, ‘Trust’), that prior to the acquisition of the lands in Mohalla Rampur by the Trust there were big chunks of parti lands, a portion of which was purchased by him (defendant 2) from one Smt. Parul Rani under a registered sale deed in the year 1954, over which a boundary was constructed, which included the entire land in the suit. Thereafter the defendant constructed his residential house on that land and planted trees, etc. The suit land, therefore, has been in possession of defendant 2 for more than 12 years before the institution of the suit. Hence, the defendant acquired indefeasible absolute title over the land by adverse possession. According to this defendant, when the map for Anugrahpuri was prepared, his land had been shown in one block without assigning any number to it as it was apart from the land in possession of defendant 1 (the Trust) and the two plots, i. e., plots Nos. 65 and 69, of defendant 1, flanked the land of this defendant 2, which was without number. According to defendant 2, therefore, the plaintiff — appellant was allotted only 116 ft. x 47 ft. of land by defendant 1 and he could not acquire any right, title or interest over the land in suit. A dispute arose between the parties which led to a proceeding under Section 144, Cr. P. C. (in short ‘the Code’). A settlement was arrived at between the parties at the instance of Shri Khwaja Midhat Noor, an advocate of Gaya, which compromise was filed before the authority concerned. Although it is not disputed that a compromise was arrived at, the plaintiff in his plaint has stated that he did not do so with a clear mind and was under psychological strain due to the proceeding under Section 144 of the Code and it was under that state of mind that he signed the compromise, which, according to him, does not bind him at all. The defendant further denies the story of compromise by any undue pressure or influence. By letter dated 6-7-70, defendant 2 had written to the Trust laying his claim to the disputed land and stated that he had learnt that the plaintiff had deposited money for the same. His prayer was that possession should not be given to the plaintiff and his money should be returned. In spite of this communication the Trust went ahead with the proposal to sell the land to the plaintiff, which is apparent from Exts. 3 and 4, referred to above. The letter of defendant 2 is Ext. C.
5. A written statement wag also filed by the Trust (defendant 1 — respondent 2), which, apart from the usual defence, also took the plea that the suit is barred under the provisions of the Act and further stated that plaintiff — appellant is put to strict proof of the allegation that he had issued any notice to the Trust. The Trust challenged the legality, validity and sufficiency of the notice. It further stated that the authorities were not aware of the title to the disputed land of defendant 2. It, however, admitted that possession was handed over to the plaintiff. The plaintiff — appellant informed the Trust of the dispute and wanted the land to be demarcated and complained about the obstruction put by defendant 2. In these circumstances, it is stated, on 21-7-l’970 a Committee was constituted of some persons for inspecting the land in presence of the parties, but, before any report could be submitted, a joint petition was filed on 10-8-1970 by both the parties stating that they had amicably settled the dispute between themselves and desired that the disputed plot should be divided between the parties. This compromise was arrived at at the instance of Mr. Khwaia Midhat Noor, mentioned above, as a result of which also the proceeding under Section 144 of the Code was dropped. On the basis of the aforementioned joint petition the authority passed a resolution dated 23-9-1970 by which the authority proceeded to settle the land in accordance with the aforesaid compromise, A letter dated 21-10-1970 was, therefore, handed over to the Chairman by the plaintiff which letter is said to be a notice under Section 1’51 of the Act. It may be stated here that apart from filing a written statement the Trust did not contest the suit which was contested only by defendant 2.
6. The trial court found that there was no violation of any of the provisions of the Act. Dealing with Section 85 of the Act it held that it had been fully complied with and dealing with Section 151 of the Act it held that the notice was duly given, which was served on defendant 1 (respondent 2) and is Ext. 1/b, It further held that defendant 2 was not in possession of the land in suit at the time when defendant 1 made offer of sale to the plaintiff and when it was accepted and possession was obtained by the latter. It also held that the compromise arrived at between the plaintiff and defendant 2 (respondent 1) by the intervention of Mr. Khwaja Midhat Noor has got no value since both the parties resoled from it and the compromise was not proved formally at the trial, and that compromise, therefore, could not affect the right of the plaintiff-appellant to obtain a decree for specific performance. The story of adverse possession by the defendant was also not accepted.
7. The appellate court allowed the appeal on the basis of the findings that have been seriously assailed by the appellant here. I will now, therefore, consider the findings of the appellate Court. The appellate Court first took up the question whether a notice under Section 151 of the Act has been filed or not. After discussion, that is, elaborate but devoid of substance, it held that the suit is barred because of non-compliance of Section 151 of the Act. This finding is wrong on two counts. Firstly, the appellate court has not considered Ext. 1/b. at all. Although the appellate court notices the averment made in paragraph 27 of the plaint to the effect that the notice was duly served on defendant 1, it completely ignores the fact that there was no specific denial of this averment by defendant 1. In the written statement filed by defendant 1 it is only stated that the plaintiff is put to strict proof of the fact that the notice has been given. The appellate court does not notice Ext. 1/b at all. It is also wrong in saying that the learned Munsif did not give any finding on this point. The only error committed by the Munsif was that it mentioned two exhibits, which were not relevant, but it did mention Ext. 1/b, which fact has been ignored by the appellate Court. It is also incorrect to say that the plaintiff has failed to state in his evidence that any notice was given. He has stated in his evidence as P. W. 22 as follows :–
^^—-eSus notice
fn;k vkSj rc eqdnek fd;k—-**
8. Another aspect of the matter arises from a consideration of several decisions of this Court. In Province of Bihar v. Kamakshya Narain Singh (AIR 1950 Pat 366). State of Bihar v. Kamaksha Pra-sad Sharma (AIR 1962 Pat 303), State of Bihar v. Jiwan Das (AIR 1971 Pat 141) and Bihar State Electricity Board v. N. H. Medical College and Hospital, Bhagalpur (1978 BLJR 464). These cases arise out of Section 80 of the Civil P. C. Like Section 80 of the Code, Section 151 of the Act is a right which is for the benefit of the Trust only. Section 151 of the Act provides as follows :–
“No suit shall be instituted against the Trust, or any Trustee, or any officer or servant of the Trust, or any person acting under the direction of the Trust or of the Chairman or of any officer or servant of the Trust, in respect of any act purporting to be done under this Act or any rule made thereunder until the expiration of one month next after written notice has been delivered or left
at the Trust’s Office or the place of abode of such officer, servant or person, stating the cause of action, the name and place of abode of the intending plaintiff, and the relief which he claims, and the plaint must contain a statement that such notice has been so delivered or left.”
It would appear from Section 151, quoted above, that like Section 80 of the Code, it provides an opportunity to the authority concerned to settle the claim without any litigation and to reconsider any step that it has taken. It does not afford any protection to anybody else except the authority concerned. It is also well settled that like Section 80 of the Code, though Section 151 of the Act is mandatory, it is always open to the authority concerned to waive its right to such a notice. The law on this question is not only settled by the aforesaid decisions of our High Court but also by the Supreme Court. The submission of learned counsel for the respondent, therefore, that this issue could be raised by defendant 2 also is not tenable. Defendant 1, the authority, merely filed a written statement and did not raise this issue at all during the trial nor did it offer any challenge in this regard. The suit, therefore, in my view, is not hit by Section 151 of the Act.
9. The point more seriously canvassed, however, was whether the appellant is entitled to a discretionary relief under the Specific Relief Act. Learned counsel for the respondent relied strongly on Section 20 of the said Act, which is similar to Section 22 of the old Act, to submit that in view of the agreement arrived at between the parties at the instance of Mr. Khwaja Midhat Noor the plaintiff-appellant is not entitled to relief sought for. Section 20 of the new Act (22 of the old Act) lays down that the Court is not bound to decree a suit for specific performance of contract even if it would be lawful under the Specific Relief Act to grant such a relief. The grant of the decree rests in the discretion of the Court and cannot be claimed as a matter of right. The discretion of the Court, however, must not be exercised arbitrarily or capriciously but on sound and reasonable ground based on general rules and principles according to the circumstances of a particular case. While exercising its discretion the Court must keep in mind the conduct of the plaintiff and the circumstances outside the contract itself, since mere existence of a valid contract is not a circumstance that is conclusive in favour of the plaintiff, though, discretionary, therefore, jurisdiction of the Court must be exercised on sound and reasonable ground guided by judicial principles, keeping in mind the circumstances in each case. The conduct of the plaintiff is also an important element for consideration.
10. Applying the above principles it has to be examined whether the plaintiff is entitled to a decree for specific performance of the contract. Learned appellate court found that Section 85 of the Act has not been followed because no advertisement was made and has found that since Section 85 was not followed there was no valid contract which could be performed. Therefore, a decree for specific performance of contract cannot be passed. It would be worthwhile to quote Sub-section (2) of Section 85 of the Act, which is relevant for the present purpose.
“(2) Whenever the Trust decides to lease or sell any land acquired by it under this Act from any person, it (a) shall give notice by advertisement in the local newspapers, and (b) shall offer to the said person, or his heirs, executors or administrators, a prior right to take on lease or to purchase such land, at a rate to be fixed by the Trust, if the Trust considers that such an offer can be made without detriment to the carrying out of the purposes of this Act.”
Firstly, it cannot be doubted that the authority made an offer which was accepted by the plaintiff, money was deposited in consequence and possession given, may be in the written statement the authority stated that possession was mere formal, but, mere statement, without proof in the face of Ext. 4, by which possession had been given, cannot lead to the assumption that the plaintiff-appellant did not come into possession of the land. Mere absence of advertisement without any denial of the contract by the authority would not defeat the suit at the instance of an outsider like defendant 2. It is true that under Section 85 an advertisement was necessary (sic) followed by an offer of the land to a displaced person. When offer was made it was undoubtedly a valid offer because the appellant is a displaced person. The appellate court was not justified in law in holding that since the contract was not arrived at in accordance with Section 85, it is not enforceable. As I have said, the authority did not take the plea that the contract was not enforceable on that ground. Absence of advertisement may be a procedural omission but that would not defeat the contract. The Trust did not raise the issue that no advertisement was made and it the records were destroyed and if there is no evidence to show that no advertisement was made, naturally its evil consequence cannot be visited upon the plaintiff. In the absence of the records it will be presumed that the official act has been properly done. I have, therefore, no hesitation in holding that the contract between the plaintiff and respondent 2 has not been rendered unenforceable. In my view, the procedure under Section 85 has been rightly followed since it will be deemed that the advertisement was also made,
11. The appellate court held that the contract is not enforceable on the ground that it cannot be said that the disputed plot is part and parcel of plot No. 69 and it belonged to the Trust, In coming to this finding, in my view, the court has completely erred in law. The appellate court seems to have forgotten that the Trust claimed title and possession over the disputed land and offered it for sale to the plaintiff-appellant. There was no onus, therefore, on the plaintiff to show that the land belonged to the Trust. The onus was really on defendant 2 (respondent 1) to show that he had title over the land and it was in his possession and was part of plot No. 65. This onus the defendant concerned has failed to discharge. The appellate court has merely based its finding on conjecture that if the disputed plot could be part of plot No. 69, why not it could be part of plot No. 65. There is no basis for the Court to upset the finding of the trial court as wrong and error neous.
12. The lower appellate court then went into the question of agreement which matter also was canvassed with great vehemence by the learned counsel for the respondent. In my view, much cannot be made out of this agreement.Firstly, admittedly both the parties resiled from that agreement. Secondly, the trial court, is entirely correct when it takes the view that the agreement cannot be of any use to the defendant. The agreement, though admitted by the plaintiff, has not been brought on the re-cord of this case. It has also not been shown, except that a resolution was passed by the Trust, that money was deposited by defendant 2 (respondent 1) as a result of that agreement. The resolution also, it appears, was not passed at a proper meeting of the Trust. Be that as it may, in the absence of the actual resolution nothing really turns on that agreement. Even if the story of the plaintiff that the agreement was signed by him under certain compulsion is not acceptable, yet the fact that both the parties resiled from that agreement cannot now give it a strength that is sought to be bestowed upon it by the respondent. The agreement was not an agreement within the meaning of the Civil P. C. which is enforceable in a suit, and it, in any way, did not affect the contract arrived at, between the plaintiff and defendant 1 (respondent 2). The learned appellate court is entirely wrong in destroying the original contract and rendering it unenforceable on the basis of the subsequent agreement and thereby also holding that the suit is barred by estoppel and acquiescence. It cannot be forgotten that the agreement was arrived at because defendant 2 interloped into the contract between the plaintiff and defendant 1, raised a dispute and tried to create a right for himself which he had not substantiated at the trial. If defendant 2 (respondent 1) by his conduct had raised a dispute, which necessitated his being made a party, he could have agitated it in a proper forum at his own instance. Having forced the plaintiff into a situation by dispossessing him after the contract had been entered into between the plaintiff and defendant 1 the plaintiff had no alternative but to seek his relief against him also for specific performance.
13. It may be stated here that the trial Court had negatived the claim of the defendant that the defendant was in possession of the land since over 12 years and had built a wall round the compound. The defendant has singularly failed to prove his case and the appellate Court has also failed to meet the reasonings of the trial court in this regard.
14. The appellate court has also committed an error of law in going into the question whether the plaintiff acquired any title, to the suit land or not. This question is wholly irrelevant. Undoubtedly, title would come after the deed is registered and the suit was really to acquire that title. Undoubtedly, the plaintiff obtained possession and title would have followed after registration for which relief has been sought by the plaintiff. The whole decision on this question is an exercise in futility by that appellate court.
15. I have already discussed the scope of Section 20 of the new Act and Section 22 of the old Act. Instances cited in Clauses (a), (b) and (c) of Sub-section (2) of Section 20, Specific Relief Act, under which circumstances the Court could refuse a decree for specific performance, have no application to the facts of this case. No unfair advantage accrued to the plaintiff over the defendant nor any unforeseen hardship is visited upon the defendant nor its enforcement can be called inequitable. In fact, the plaintiff is entitled to the benefit of Sub-section (3) of Section 20 of the Specific Relief Act In this case the plaintiff has already paid consideration money and has come into possession but was deprived of it forcibly by defendant 2 (respondent 1), the appellant, therefore, suffering loss in consequence.
16. In the result, the appeal is allowed with costs, the judgment and the decree of the lower appellate court are set aside and those of the trial court are restored.