JUDGMENT
S.M. Daud, J.
1. These are cross-appeals arising out of the judgement and decree of the Joint Civil Judge, Senior Division at Pune vis-a-vis Survey No. 52/6-C admeasuring 1 acre and 32-3/4 gunthas at village Vadgaon Sheri. Taluka Haveli, District Pune, more precisely described in para 1 of the plaint.
2. The appellant in First Appeal No. 285 of 1985, hereinafter referred to as defendant as the owner of the suit land. The appellant in First Appeal No. 249 of 1985, hereinafter referred to as the plaintiff is a businessman based at the Pune. Defendant’s husband and the plaintiff were clubmates, both being the members of the Pune club. Plaintiff entered into an agreement to purchase the suit land from the defendant and the said agreement was reduced to writing on 19-7-1971 at Exh. 55. Broadly speaking, the plaintiff paid earnest money of Rs. 10,000/- from out of the agreed price of Rs. 1,22,000/-, was to pay the balance within a period of nine months and in return the defendant was to pass a sale deed in plaintiff’s favour. The defendant on her part undertook to do various things such as produce documents of title to satisfy PIFF of her right to transfer the land free of encumbrances, acquire and furnish to the plaintiff a demarcation certificate from the District Inspector of Land Records, secure permission from the Collector to convert the land which was agricultural into non-agricultural (NA) etc. The period for execution of the sale deed was extended from time to time. The extensions being granted on 21-3-1972, 16-2-1973, 18-4-1976 and 12-2-1979. the second extension endorsement, had, amongst others, the following recital :
“In pursuance of the agreement of sale I am herewith, delivering vacant possession of the shed as per plan attached”.
The land had a shed and the said shed had been previously let out to the Maharashtra State Warehousing Corporation on rent by the defendant. Plaintiff was placed in possession of the shed a from 1-11-1973. The last extension endorsement effected an important variation in the agreement. Plaintiff agreed to an enhancement of the price by 28,000/- which sum was to be paid along with the balance of the price of Rs. 1,12,000/- at the time of the execution of the sale deed. Secondly, until the agreement was performed i.e. the sale deed executed, plaintiff would pay the defendant a sum of Rs. 1,000/- per month. This payment was described as “rent”. Thirdly, defendant gave a specific commitment to extend full co-operation so as to further the transaction vis-a-vis any application to be made to the Government or any other authority. Lastly, time for the performance of the agreement was extended upto 11-2-1980. Plaintiff gave a public notice in certain newspapers of Pune about his intention to purchase the suit land and this was done with a view to elicit objections from those claiming to or having an interest in the property. Certain objections were raised by various persons through their advocates and this was in August 1971. The plaintiff on 18-8-1971 addressed a notice to the defendant at Exhibit 91 calling upon her to deal with the claims raised by the persons aforementioned. Defendant replied on 6-9-1971 through Exhibit 66 disclaiming the objector’s claim vis-a-vis the suit land. Plaintiff seems to have been satisfied with the clarification given by the defendants, because it was only after the receipt of Exh. 66, that the extensions of time were given for the performance of the agreement. After February 1980 there was an exchange of several missives between the parties. The first was Exh. P-88 dated 24-4-1980 sent on behalf of the defendant to the plaintiff. The notice recited various events. Paragraphs 8 and 9 of Exh. P-88 spoke of defendant having furnished a return in the prescribed form – form prescribed under section 6 of the Urban Land (Ceiling and Regulation) Act 1976, hereinafter referred to as the ‘Ceiling’ Act. Defendant mentioned that she had in her return described that suit land as an agricultural land and had further made it clear that she had entered into an agreement with the plaintiff to sell the said land unto him. Paragraph 9 spoke of the defendant ever being ready and willings to perform her obligations under the agreement; plaintiff evading performance of his obligations and this despite several extensions agreed to by her on a personal request made by the plaintiff. Plaintiff was accused of not taking steps to furnish his signatures on applications to be made to different authorities for conversion of the user of the land. This term appearing in the agreement was said to be a term agreed to for the convenience of the plaintiff only, there being otherwise no legal impediment in the sale of agricultural land by the defendant to the plaintiff. Paragraph 10 of the notice called upon the plaintiff to inform defendant whether he was still interested in completing the transaction, and, if so, to forward the requisite applications and other documents on which defendant’s signatures were required. In case the formalities required for completing the transactions were to exceed three months, plaintiff was called upon to pay a sum of Rs. 70,000/- from out of the balance agreed to be paid. In case there was no response to the notice, defendant would treat the agreement as cancelled and return to plaintiff the sum of Rs. 10,000/-. She also indicated that she would be resuming possession of the structure which was described as a ‘farm-house’. Plaintiff gave a reply to Exh. P-88 on 3-5-1980. This reply is a Exh. 89. Plaintiff denied that he had been remiss in carrying out his obligations under the agreement. In fact, it was defendant who was guilty of in action in not even dealing with the objections raised in response to the public notice intimating his desire to purchase the suit land. Next the reply spoke of defendant who was guilty of inaction in not even dealing with the objections raised in response to the public notice intimating his desire to purchase the suit land. Next the reply spoke of defendant doing nothing to further the transaction inasmuch as she had not obtained and furnished the requisite demarcation certificate or N.A. permission. The sum of Rs. 1,000/- per month which was being paid by the plaintiff was by way of rent and not compensation. Defendant had not obtained a ‘No-objection Certificate’ to the completion of the transaction from the Competent Authority under the Ceiling Act. Until defendant performed her obligations under the agreement plaintiff was not willing to pay Rs. 70,000/-, though he was ready to pay the entire balance at the time of the sale deed’s execution. At the end of the reply, plaintiff enumerated what exactly the defendant was supposed to do. First, she was to obtain a demarcation certificate from the D.I.L.R.’s office. Secondly, she was to obtain N.A. permission from the Collector. Thirdly, she was to furnish all documents of her title to the suit land. Fourthly, she was to obtain an N.O.C. under the Ceiling Act. Plaintiff expressed his readiness to give his signatures on the requisite forms to facilitate the fruition of the agreement. A rejoinder was sent by the defendant which rejoinder is at Ex. D-72 dated 10-6-1980. She took exception to the accusation levelled against her, and, in para 7 averred;
“My client (defendant) further says that permission to be obtained for conversion of land to N.A. user had to be obtained specifically giving the nature of the user to which the land was to be put. Since your client had no plans ready to indicate the N.A. user of the land, my client says that your client requested mine to postpone making an application for said purpose. My client reiterates that our client would have been liable to pay N.A. assessment after the land was converted to N.A. user and denies as false, all denials of your client in this behalf.”
In paragraph 17 of the rejoinder appears this :
“My client says that in case your client is genuinely interested in applying for permission under the relevant provisions of Ceiling Act my client is ready and willing to join your client in such application. My client is advised that such exemption is to be sought by the person intending to use the land sought to be got exempted and that the Vendor of the land has only to give consent to ‘the same and to produce the evidence about the agreement having been entered into prior to the date fixed as appointed day under the Ceiling Act.”
The rejoinder at para 21 says :
“My client is happy to learn that your client is ready and willing to complete his part of the transaction. My client, therefore, calls upon yours prepare the necessary application for exemption under the Ceiling Act duly supported by necessary documents and forward the same to my client for her signature and for her to enclose supporting document therewith for being forwarded to the State Government. If your client sends the same to my client within stipulated period of 15 days my client agrees to forward the same to the State Government within one week of the date of such receipt and my client assures yours that on receipt of the exemption (if any) from the State Government my client will execute a deed of conveyance in the terms of agreement against the receipt of the balance of sale price. If, however, no exemption is obtained within four months from forwarding the papers to the state Government or if any exemption is refused by the Government, my client is ready and willing to return the amount of Rs. 10,000/- paid as earnest money by your client to mine against your client handing over possession of the farm house to mine and against your client paying the arrears of the consideration or rent of the farm house payable upto that date”.
On 26-6-1980, plaintiff addressed Exh. 90 to defendant along with various documents which were to be filled up by the defendant and sent by her whereever necessary. This was a preliminary to the forwarding of the documents to the Director of Industries and the Competent Authority at Pune. Exhibit 90 gave a specific commitment that plaintiff would come personally to the office of the defendant’s advocate so as to help defendant in completion of the application and necessary forms being forwarded to the Director of Industries and the competent Authority. The forms bearing plaintiff’s signatures numbered six and they were
(i) Certificate showing the land as being part of Industrial Zone.
(ii) Plans for the proposed use to which the land was to be put and a project report.
(iii) Copy of the certificate given by an Architect.
(iv) Certificate showing plaintiff to be the proprietor of Suresh Fabrics.
(v) Copy of last balance-sheet of Suresh Fabrics.
(vi) Copies of the return filed by the plaintiff under the Ceiling Act.
Exhibit 90 was replied to on 24-7-1980 under Exhibit D-75. The first paragraph of Ex. D-75 admonished the plaintiff for construing defendant’s reply Exh. 72 as a blanket offer to sign any paper to be put up before her by the plaintiff. Defendant made it clear that she would not be willing to sign any paper the contents whereof committed her to something not within her personal knowledge. She was not willing to so do and land herself in trouble. An offer was made to return the earnest amount received from the plaintiff on his handing over vacant possession a suit. On 18-9-1980 defendant addressed Exh. D-68 to the Competent Authority seeking exemption under section 20 of the Ceiling Act so as to enable her to perform the agreement which he had entered into with the plaintiff on 19-7-1971 vide Exh. 55. The Competent Authority replied to this application on 29-9-1980 pointing out various omissions in the application moved by the defendant. The first omission was that the application was not in the prescribed form in duplicate with a Court fee of Rs. 10/- affixed thereon. The prescribed form was available at a certain address in the compound of the Collector’s office. Secondly, the application was unaccompanied with site plan, an extract from the 7/12 (crop statement) record, a photocopy of the agreement to sell and a bank certificate showing payment of earnest money by cheque. The last deficiency was in respect of an affidavit of the intending purchaser showing that after the purchase of the suit land he would not become a surplus holder. A Copy of the communication at Exhibit D-69 was sent to plaintiff also. On 13-11-1980, plaintiff lodged his plaint in the Court of Civil Judge, Senior Division.
3. The case set out in the plaint was that the plaintiff had always been ready and willing to perform his obligations under the agreement at Exhibit 55. Defendant had been raising frivolous objections to avoid performance of her obligations under the agreement. She had not applied to the Collector for obtaining N.A. permission nor had she furnished a demarcation Certificate from the D I.L.R. The application for exemption under section 20 of the Ceiling Act required defendant to sign various applications and forms, which applications and forms had been sent by the plaintiff to the defendants. Defendant for no justifiable reason avoided to sign the said documents. On the contrary she was laying down impossible conditions, which she knew could not be performed. This was because she had no desire to honour her obligations. Plaintiff sought a decree for specific performance. In the event the said decree could not be granted, he was entitled to not only a refund of the earnest money paid to her, but also damages totalling rupees two lakhs. Defendant in her written statement denied that she was unwilling or evasive in the matter of performing her obligations under Exh. 55. It was plaintiff who was making impossible demands upon her and this, because he either did not have the requisite funds or wanted to delay the transaction for undisclosed reasons of his own. In fact with the coming into force of the Ceiling Act, the contract had become impossible of performance as the suit land itself exceeded the permissible limits which a land-holder was entitled to retain or acquire. Coupled with the land-holding of plaintiff himself, the Competent Authority could not grant exemption whether under section 20 or any other provision of the Ceiling Act. The claim for damages was also untenable. As a matter of fact, plaintiff had no right to retain possession of the structure in the land. This structure had been given to him in part performance of the contract. Plaintiff was falsely setting up the defence of being a tenant in respect of the structure whose tenancy was governed by the Rent Act. There was no merit in this contention and therefore defendant counter claimed for the relief of possession of the structure and damages totalling Rs. 17,100/-. Defendant was prepared to give a deduction for the earnest money refundable by her and accept a decree for only Rs. 7,100/-. Plaintiff in reply to the counter-claim reiterated that he was in possession as a tenant and that his tenancy was protected under the Bombay Rent Act. Pleadings summarised her, gave rise to the appropriate issues. Only three witnesses were examined at the trial – plaintiff being one of them, the defendant’s representative being, Professor Bopardikar. The testimony of the 2nd witness examined by the plaintiff is not of much consequence. The learned Civil Judge held that plaintiff had not established his readiness and willingness to perform his obligations under Exhibit 55 and also the Exhibit 55 stood frustrated having regard to the Ceiling Act. In relation to the counter-claim the learned Judge held that plaintiff could not be ejected as his occupation in respect of the structure in the land was protected under the Bombay Rent Act. Adjusting the sum of Rs. 10,000/- refundable by the defendant, a decree for Rs. 7,100/- was passed in favour of the defendant. Parties were left to bear their own costs.
4. Aggrieved by the refusal to grant specific relief, plaintiff has filed First Appeal No. 249 of 1985. Defendant has filed First Appeal No. 285 of 1985 contending that she should have been granted a decree for possession of the super-structure in the suit land. Points arising for determination are :
(1) Did plaintiff prove that he ever was ready and willing to perform his obligations under Ex. 55?
(2) Whether the contract embodied in Exh. 55 stood frustrated having regard to the provisions of the Ceiling Act?
(3) Whether plaintiff’s possesion of the super-structure was in his capacity as a tenant protected under the Bombay Rent Act?
(4) What order?
Our findings, for the reasons given below, are :
(1) Yes.
(2) No.
(3) No.
(4) See order.
REASONS :
5. We have made a detailed reference to the correspondence preceding the institution of the suit so as to give a complete picture of the back-drop in which the crucial first point has to be decided. That Exhibit 55 embodied a genuine agreement to sell and purchase is not disputed. Defendant was the owner of the suit land and plaintiff as far back as in 1971 had entered into an agreement to purchase the said land for a consideration of Rs. 1,22,000/- Rs. 10,000/- were paid as earnest and the remaining portion of the price was to be paid at the time of the execution and presentation for registration of the sale deed. In the meantime, certain obligations were cast upon the defendant. These were preliminary to her being in a position to transfer a truly trouble-free title to the plaintiff. Defendant was required to produce for inspection of the plaintiff and his advocate all the documents of title showing her to be the exclusive and unencumbered owner of the suit land. Next, she was to have the suit land demarcated and produce a demarcation certificate for the inspection and satisfaction of the plaintiff. This was to be done before the completion of the transaction. Thirdly, defendant was to obtain permission from the Collector to convert the user of the land which was agricultural to non-agricultural purposes. A road of the width of 15 was shown as existing in a map accompanying Exh. 55. Defendant claimed that the said road was of her absolute ownership and that she would be transferring the right to the user of that road without hindrance by him. Defendant was to obtain the signatures of the holder of the power of attorney from her as also from one W.S. John in the execution of the sale deed. This was because these two ladies were the erstwhile joint owners of the larger land bearing certain survey numbers. The converyance and registration charges were to be borne half and half between the vendor and vendee. The subsequent endorsements extending time give an important clue as to the minds to the parties. The first endorsement made on 21-3-1972 was an endorsement plain and simple extending time till 18-4-1973. The second extension made on 16-2-1973 recited delivery of possession of the structure to the plaintiff and extended time for the performance of the agreement till on or before 14-8-1974. The possession of the structure was in fact delivered on 1-11-1973. On 12-2-1979, there was a further extension upto 11-2-1980 and some more terms were added to the agreement. Plaintiff agreed to pay enhanced consideration of Rs. 28,000/- which sum was to be paid along with Rs. 1,12,000/- at the time of the sale deed’s execution. Till such time as the sale deed was executed, plaintiff would go on paying Rs. 1,000/- per month which payment was described as “rent”. Defendant through her attorney agreed to gave full co-operation to facilitate execution of the sale deed in the matter of addressing applications to the Government or other authorities. The endorsement made on 12-2-1979 was so made after the Ceiling Act came into operation. This negatives the defence that exhibit 55 stood frustrated simply because of the intervention of the ceiling Act. The endorsement made on 12-2-1979 is a clear indication that despite the coming into force of the Ceiling Act, parties wanted Exh. 55 to be carried into effect – the implied understanding being that they would make an effort to supervene the obstacles created by the said Act.
6. Having regard to the extension granted till atleast 11-2-1980, it cannot be said that either party had backed out from its obligations under Exhibit 55 till this date. Defendant was the first to broach the subject of the transaction remaining unfinished and expressing a desire that this state of affairs should not be continued. Defendant did this under Exhibit P. 88 dated 24-4-1980. This communication shows defendant’s impatience if nothing more at the prolongation of the time required for the completion of the sale. The impatience led her to remark that certain terms appearing in Exh. 55 were of no real consequence, but had been included to suit the convenience of the plaintiff. She pointed to the terms under Exhibit 55 requiring her to obtain the Collector’s permission for converting the user of the land as being one such term. According to the defendant, there was no legal impediment in the way of her selling the land to the plaintiff as an agricultural land. Had this really been a term incorporated in Exhibit 55 for the convenience of the plaintiff, the agreement would have been worded differently. In fact the liability to obtain N.A. permission would have been cast upon the vendee. In case the vendor chose to attend to this task for the convenience of the plaintiff, she would have sought reimbursement for the expenses incurred in getting the user of the land changed. Far from that being the case, Exh. 55 contains an unqualified obligation on the part of the defendant to obtain N.A. permission from the Collector. Even if this was to suit the purpose of the plaintiff, the incorporation of the term indicates that plaintiff wanted the land for N.A. use, and, with this end in view, had case the burden for getting N.A. permission upon the vendor. One thing which is sure is that the plaintiff was not going to purchase the land as an agricultural land, and, for pursuit of agriculture. A reference is made in Exhibit 88 to plaintiff being remiss in not furnishing his signatures on applications to be made to the concerned authorities for conversion of the land to N.A. use. But there is no evidence to show that any such application had been moved or sought to be moved by the defendant prior to Exh. P-88. Defendant sought to vary an important term of Exh. 55 when she demanded that plaintiff pay her a sum of Rs. 70,000/- in case the completion of the formalities were to take more than three months. Exh. 55 stipulated the payment of entire balance consideration at the time of execution and presentation for registration of the sale deed. Therefore, even though defendant was first to urge expedition in the matter of completion of sale, the terms were sought to be materially altered, and, this alteration, was to be to her advantage. Plaintiff’s bona fides are evidenced from the response made by him on 3-5-1980 under Exhibit P-89. He spoke of defendant’s failure to get a demarcation certificate, the non-clearance of the objections received in response to the public notice, the failure to obtain N.A. permission and also the exemption required under the Ceiling Act. So far as the grievance about the non-clearance of objections received in response to the purchase notice is concerned, we may agree that this was a objection raised simply for the purpose of showing defendant as being a defaulter from the very inception of the transaction. But a demarcation certificate, N.A. certificate and exemption under the Ceiling Act, were not inconsequential matters. Defendant had to take the necessary steps and with a view to enable this to be done, plaintiff spelt out the exact requirements which the defendant had to meet. On 10-6-1980, defendant repeated her sincerity and at the same time exonerated plaintiff of the lapses attributed to him. In the communication at Exh. D-72 dated 10-6-1980, defendant expressed readiness to sign documents required for obtaining exemption under the Ceiling Act. Plaintiff in response to this, addressed Exh. 73 and 90 on 16-6-1980 and 20-6-1980 respectively. Exhibit 90 was accompanied by a bunch of documents which had to be signed and sent by the defendant. Defendant on 24-7-1980 made it clear that she was not going to sign applications the contents whereof committed her to certain representations made by the plaintiff. It is argued that the refusal was perfectly justified as defendant had no personal knowledge of the correctness or otherwise of the representation made in the applications and forms forwarded by the plaintiff. The important question is how far this refusal was justifiable, and that, entails an examination of the papers sent along with Exhibit 90 by the plaintiff. The bunch of papers are detailed at Exh. 90. The first of these papers was a certificate showing the suit land to be part of the industrial zone under the Development Plan for Pune. The second was a proposal and project report vis-a-vis the initiation of an enterprise of the plaintiff to be based in the suit land. Defendant was aware that plaintiff wanted to use the suit land for a non-agricultural purpose, and therefore, plaintiff was not imposing an onerous condition upon her by requesting her to sign the proposal. In the proposal, plaintiff was shown as a person desirous of starting an enterprise. These papers had to be routed through the Directorate of Industries. It is difficult to understand why defendant should have suspected this to be some sort of deceit upon her. The Central Government has framed guidelines for obtaining exemption under section 20 of the Ceiling Act, and, a person seeking exemption under section 20(1)(a) of the Act has to route his application through the Director of Industries of the State. Counsel for the defendant submits that the guidelines do not have any statutory force and therefore his client was not under an obligation to see that the application was routed through the Directorate of Industries. It is an error to contend that the guidelines do not have statutory force. Section 47 of the Ceiling Act conferes on the Central Government, powers to remove difficulties and even if this section be not a justification for the guidelines, defendant had given a commitment to co-operate in the making of any application to the Government or any authority so as to further the transaction vide the endorsement made on 12-2-1979. Defendant could have in fact added a covering letter to these forms which she had signed-the covering letter, making it clear that she could not vouch for the correctness or otherwise of the particulars vis-a-vis the project proposed to be started by the plaintiff. It was argued that no such reservation could have been acceptable to the Competent Authority. That would have been a matter for the Competent Authority to decide. If defendant was sincere in her desire that the transaction be completed, she should have refrained from raising unnecessary objection. Much is made of the fact that plaintiff did not give the required affidavit showing that he would not become a surplus holder in the event of Exhibit 55 being honoured. Plaintiff admits in his deposition that such an affidavit was not given by him. But this omission has to be matched against the institution of the suit within two months of the receipt of the Competent Authority’s communication at Exh. D-69 by the parties. The true position appears to be that defendant was getting impatient of the delay occasioned and did not have the capacity to run from office to ensure compliance with the obligation undertaken by her at the time of entering into the contract on 19-7-1971. That is why she gave the ultimatum in Exhibit P-75, and let it not be forgotten that Exh. P-75 dated 24-7-1980, was given even before the receipt of Ex. D-69 from the Compenent Authority. Defendant had indicated that she was not interested in performance of the agreement, a good two months before the demand of the competent authority, for, amongst other things, an affidavit of the intending purchaser that he would not become a surplus holder in the event of Exh. 55 going through. Therefore, the attempt to draw sustenance from Exh. D-69 is not of any avail to the defendant. In fact Exh.D-69 has been pounced upon simply because of the availability of a plausible excuse to show plaintiff in the wrong box. Having regard to this indication of the minds of the parties from the documentary evidence, it is not really necessary to go into the depositions of plaintiff and Bopardikar. We will, however, take a look at the said depositions. From answers given by the plaintiff in cross-examinations it is clear that sum of Rs. 1,000/- per month was to allay defendants misgiving at the delay causing a loss in real money term. Of course, this has to be set off against the consideration of the plaintiff being put into possesion of the super-structure. Next, plaintiff admits that proof Bopardikar was looking after the property on behalf of the defendant and her constituted attorney. Plaintiff was asked to give an explanation as to why Ex. 55 made no reference to the land being required for the installation of a sizing unit of his textile factory. Plaintiff frankly admits that he cannot give any reason for the omission, But the inability to explain is not a matter of any consequence, for a plain reading of Exh. 55 makes it clear that the land was required for N.A. user by the intending purchaser. He further admits that on his own he had not sent a notice to the defendant demanding a demarcation certificate from her. But this requirement was mentioned from time to time in the replies given by the plaintiff. Plaintiff further admits that he did not submit any papers till 11-2-1980 for obtaining the requisite exemption under the Ceiling Act. But the burden to do so lay upon the defendant and plaintiff was good enough to send all the required documents along with his signatures to the defendant for being forwarded to the Competent Authority through the Directorate of Industries. In fact, plaintiff had gone further and offered his services to explain the other requirements so that defendant did not experience any difficulty in affixing her signature to the applications and forms. As said earlier, defendant’s suspicion and refusal to sign the relevant papers put the finish to the transaction. Plaintiff could not send the requisite affidavit demanded under Exh. D-69 for two months prior thereto, defendant had under Exh. P. 75 made it clear that she would not be going ahead with the transaction so far as Prof. Bopardikar is concerned, he wants us to believe that the application for conversion to N.A. purposes, required the furnishing of certain particulars by the plaintiff. Had this been true, it would have been so made clear in Exh. 55. Next, Prof. Bopardikar speaks of plaintiff being required to make an application to the Collector for being permitted to purchase the suit land as he was a non-agriculturist. This is not spoken of in the correspondence that was exchanged between the parties before the institution of the suit. He goes on to say that even the exemption under the Ceiling Act was to be obtained by the plaintiff. We have already referred to the determination of the parties to go through with the agreement despite the coming into force the Ceiling Act. It is the vendor who was to lose the suit land because of the provisions of the said enactment. To be in a position to perform the agreement to sell, it was for the defendant to move the Competent Authority. In fact that is what defendant’s attorney undertook to do vide the endorsement dated 12-2-1979. Therefore, on every matter of importance, Prof. Bopardikars version is at variance with either the document, the probabilities or the statutory provisions. Disagreeing with the trial Court, we hold that it was the defendant who chose to be unreasonable, which unreasonableness, led to the non-performance of the agreement.
7. The second finding of the trial Court attacked by the plaintiff is in relation to the contract being frustrated on account of the Ceiling Act. The suit land was part of what is known as the Pune Agglomaration. The contract could go through only if exemption under section 20 of the Ceiling Act could be obtained. The relevant portion from section 20 reads as follows :
20. (1) Notwithstanding anything contained in any of the foregoing provisions of this Chapter—(Chapter III)
(a) Where any person holds vacant land in excess of the ceiling limit and the State Government is satisfied, either on its own motion or otherwise, that, having regard to the location of such land, the purpose for which such land is being or is proposed to be used and such other relevant factors as the circumstances of the case may require, it is necessary or expedient in the public interest so to do, that Government may, by order, exempt, subject to such conditions, if any, as may be specified in the order, such vacant land from the provisions of this Chapter.”
The power to exempt was conferred upon the State Government, where a case was made out that it was necessary or expedient in the public interest so to do. Therefore, a total ban on transfers of vacant land in excess to the ceiling limits was not imposed by the Ceiling Act. It was argued that the State Government was under no compulsion to grant exemption and that in any case it would not have grant exemption seeing that plaintiff could not ever satisfy the Competant Authority that he would not become a surplus holder in the event of his being allowed to purchase the suit land. The power under section 20 is notwithstanding anything contained in any of the foregoing provisions of the Chapter. Therefore, it would not be correct to say that because of plaintiff not, being in a position to furnish an affidavit of his not becoming a surplus holder, the contract stood frustrated. The power to exempt was there and if the State Government was reasonable in laying down impossible condition, the aggrieved persons could move a Court of competent jurisdiction for redressal. The power to grant or refuse exemption is not absolute or uncontrolled. Any wayward exercise of the power is subject to exemption is not absolute or uncontrolled. Any wayward exercise of the power is subject to judicial control. Therefore, on this issue also, the trial Court has come to an erroneous conclusion. We hold that the coming into force of the Ceiling Act did not nullify the contract incorporated under Exh. 55.
8. On point No. 3, the learned trial judge has been much influenced by the use of the word “rent” occurring in the endorsement made upon Exh. 55 on 11-2-1979. The use of this or that word is never decisive as to the true nature of a transaction. The endorsement made on 16-2-1973 makes it clear that the super-structure was being delivered to the possession of the plaintiff, to use the words of the endorsement, “in pursuance of the agreement for sale”. In other words, possession of the super-structure was delivered to the plaintiff in part performance of the agreement reached between the parties on 19-7-1991. It was something in the nature of an earnest by defendant of her interest to implement the agreement. Of course, this was accompanied by a promise on the part of the plaintiff to reimburse her for the erosion in the real value of the agreed consideration. This reimbursement was to be in the shape of Rs. 1,000/- per month. In a sense this was compensation to assuage defendants grievance about loss of income consequent to the delay in the performance of the agreement. The mere fact that this payment was described as “rent” in endorsement dated 12-2-1979, would not create a tenancy between the parties. A tenancy is a matter of agreement between the parties and does not come into existence by laxity in the choice of words by parties in expressing themselves. The word “rent” was a misnomer, the true nature of the payment being occupation charges. The Rent Act did not apply to the transaction whereunder plaintiff had come to possess the super-structure. Had we concurred with the trial Court on the first two points, there would have been an enlargement of the relief to be granted to the defendant.
9. To recapitulate, plaintiff was entitled to specific performance and until the performance of the agreement, defendant was entitled to get Rs. 1000/- per month by way of occupation charges for the superstructure. At the Bar, it is agreed that plaintiff has been paying the occupation charges almost regularly and that no sum is outstanding on this count from him. The sum of Rs. 1000/- per month represents interest payable on the major portion of the balance of the price. This major portion we place at rupees one lakh. Now, if plaintiff is to be granted specific performance it cannot be at the price agreed to under Exh. 55. The erosion in the real value of money goes on by an almost uncheckable inflation and has to be made good and this can be done only by adding interest to the balance of the price minus that sum which we have taken as representing the capital for the interest of Rs. 1000/- per month being paid by the plaintiff as occupation charges for the super-structure. The total agreed to be paid, less the sum of Rs. 1,00,000/- and the earnest of Rs. 10,000/-, is, Rs. 40,000/-. Justice requires that plaintiff be made to pay interest at the rate of 12% per annum on the sum of Rs. 40,000/-, and this, from 1-3-1980. However, this interest shall in no case exceed the sum of Rs. 40,000/-. Hence the order.
10. On plaintiff depositing in the executing Court a sum of Rs. 1,40,000/- plus interest at the rate of 12% per annum such interest to be calculated only on the sum of Rs. 40,000/-(but such interest not to exceed Rs. 40,000/-) within three months from today or the extended time which extension shall be only upon an application to be made to the executing Court and granted for good cause being established, defendant shall do all that is necessary to enable the execution of the sale deed in plaintiff’s favour. In the event of defendant failing to comply with her obligations, plaintiff will be entitled to get specific performance on the above terms by the Court.
11. In the event of the Competent Authority and the other authorities not according the required permission, and the refusal being legally justified, the defendant will be under an obligation to refund Rs. 10,000/- to the plaintiff. In that event defendant will be entitled to adjust the sum of Rs. 10,000/- against any arrears of occupation charges outstanding from the plaintiff in respect of the super-structure, and this, only upon the plaintiff redelivering possession of the super-structure to her. Defendant shall be entitled to get this relief by way of execution through Court. Costs in both the Courts as incurred.
The two appeals are disposed of as above.