{"id":173627,"date":"2008-09-25T00:00:00","date_gmt":"2008-09-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ambadas-khanderao-hagvane-vs-shaikh-razaq-shaikh-yakub-on-25-september-2008"},"modified":"2016-04-19T10:53:23","modified_gmt":"2016-04-19T05:23:23","slug":"ambadas-khanderao-hagvane-vs-shaikh-razaq-shaikh-yakub-on-25-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ambadas-khanderao-hagvane-vs-shaikh-razaq-shaikh-yakub-on-25-september-2008","title":{"rendered":"Ambadas Khanderao Hagvane vs Shaikh Razaq Shaikh Yakub on 25 September, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Ambadas Khanderao Hagvane vs Shaikh Razaq Shaikh Yakub on 25 September, 2008<\/div>\n
Bench: J. H. Bhatia<\/div>\n
                                          1\n\n              IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                      CIVIL APPELLATE  JURISDICTION\n\n\n\n\n                                                                               \n                             SECOND APPEAL NO.  634 of 1991\n\n\n\n\n                                                       \n    1. Ambadas Khanderao Hagvane\n       age : 39 yrs, Occu : Mechanic\n\n\n\n\n                                                      \n       R\/o. At : Vihitgaon,\n       Taluka and District : Nashik.\n\n    2.  Devidas Khanderao Hagvane\n\n\n\n\n                                             \n         Age : 30 yrs., Occu : Service,\n         R\/o. At : Vihitgaon, \n         Taluka and District Nashik.\n                             \n    3.  Bhandudas Khanderao Hagvane\n         Age : 31 yrs., Occu : Service,\n         R\/o. At : Vihitgaon,\n         Taluka and District : Nashik\n           \n\n\n    4.  Tulshiram Khanderao Hagvane\n        \n\n\n\n         Age : 22 yrs, Occu : Service,\n         R\/o. At : Vihitgaon,\n         Taluka & District : Nashik\n\n\n\n\n\n    5.  Sou. Januda Namdeo Rahane\n         Age : 35 yrs. Occu : Houshold,\n         R\/o. At : Poona Road,\n         Bankar Mala, Nashik.                             ...   Appellants.\n\n\n\n\n\n                                                          (Orig. Defendants)\n              V\/s.\n\n    1. Shaikh Razaq Shaikh Yakub\n        Age : 51, Occu : Business,\n\n\n\n\n                                                       ::: Downloaded on - 09\/06\/2013 13:54:14 :::\n                                           2\n\n        R\/o. At : Nashik.\n\n\n\n\n                                                                                  \n    2. Shaikh Rafiq Shaikh Yakub\n       Age : 31, Occu. : Business,\n\n\n\n\n                                                          \n       R\/o. At : Nashik.                                     ...   Respondents.\n                                                              (Orig. Plaintiffs)\n\n\n\n\n                                                         \n    Mr. C.P. Deogirikar with Mr. A.V. Anturkar for the Appellants.\n    Mr. G.R. Agrawal  i\/b. R.M. Agrawal for Respondent Nos. 1 and 2.\n\n\n\n\n                                              \n                                      CORAM : J.H. BHATIA, J.\n<\/pre>\n
                                ig    DATE  : 25th SEPTEMBER 2008\n\n    ORAL JUDGMENT  :-\n                              \n<\/pre>\n
               This appeal is filed by the Original Defendants challenging<\/p>\n
    the decree passed by the Joint Civil Judge, Junior Division, Nasik in<\/p>\n
    Regular   Civil   Suit   No.174   of   1984   in   favour   of   the<\/p>\n
    Plaintiff\/Respondents   and   confirmed   by   the   learned   6th   Additional<\/p>\n
    District Judge, Nasik while dismissing Regular Civil Appeal No.31 of<\/p>\n
    1986 filed by the Defendants.\n<\/p>\n
    2.         Admitted facts are that Original Defendant No.5 Khanderao<\/p>\n
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\n                                                  3<\/span><\/p>\n
    was   owner   of   the   land   Survey   No.24\/12   admeasuring   30   Gunthas<\/p>\n
    situated   at   Mauje   Vihitgaon,   Taluka   Nashik   which   is   now   part   of<\/p>\n
    Municipal Corporation, Nashik.   Defendant No.5 Khanderao had got<\/p>\n
    the land mutated in the nature of his four sons, who are Defendant<\/p>\n
    Nos.1   to   4.     The   Plaintiffs,   who   are   brothers   interse,   filed   suit   for<\/p>\n
    specific performance of contract against the Defendants.   According<\/p>\n
    to them the Defendants had agreed to sell the suit land to them for<\/p>\n
    consideration of Rs.15,000\/- and amount of Rs.6,000\/- was paid as<\/p>\n
    earnest  money  and  balance amount was  to be paid  at the  time  of<\/p>\n
    executiion   of   sale   deed.     Accordingly,   an   agreement   for   sale   was<\/p>\n
    executed on 17.7.1978.  As per terms of the contract the Defendants<\/p>\n
    were to obtain permission for sale under Urban Land Ceiling Act as<\/p>\n
    well   as   under   Section   63  of   the   Bombay  Tenancy  and   Agricultural<\/p>\n
    Lands Act (Tenancy Act, in brief).  According to the Plaintiffs, the cost<\/p>\n
    of obtaining the permission from both the Competent Authorities was<\/p>\n
    to be borne by the Defendants while  cost of getting the sale deed<\/p>\n
    registered  would   be   borne   by  the   Plaintiffs.     Permission   under  the<\/p>\n
    Urban Land Ceiling Act was obtained on 24.8.1978.   However, the<\/p>\n
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\n                                               4<\/span><\/p>\n
    Defendants   did   not   take   any   steps   to   secure   permission   under<\/p>\n
    Section 63 of the Tenancy Act and thus, they committed breach of the<\/p>\n
    contract.     The   Plaintiffs   firstly   issued   firstly   public   notice   and<\/p>\n
    thereafter,   they   issued   notice   to   the   Defendants   in   the   year   1983.\n<\/p>\n
    However, the Defendants avoided and finally refused to execute sale<\/p>\n
    deed.  The Plaintiffs contended that they have been always ready and<\/p>\n
    willing to perform their part of the contract, that is to pay the balance<\/p>\n
    amount and to get the sale deed executed, however, the Defendants<\/p>\n
    were not ready.  Therefore, they filed the suit for specific performance<\/p>\n
    of the contract.   Alternatively, they also contended that if the decree<\/p>\n
    for specific performance cannot be granted,  the amount of Rs.6,000\/-\n<\/p>\n
    be directed to be refunded by the Defendants with interest thereon.\n<\/p>\n
    3.          The   Defendants   contested   the   suit   by   filing   written<\/p>\n
    statement wherein they denied to have entered into any agreement<\/p>\n
    for sale with the Plaintiffs and to have received any amount from them<\/p>\n
    as earnest money towards the alleged transaction.  They also denied<\/p>\n
    that they were to obtain any permission which would be necessary for<\/p>\n
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\n                                              5<\/span><\/p>\n
    execution of sale deed.   According to them, the market value of the<\/p>\n
    land was more than Rs.40,000\/- and therefore, it was not possible for<\/p>\n
    them to enter into an agreement for sale of the suit land for meager<\/p>\n
    amount of Rs.15,000\/-.   According to them, Defendant No.5 was in<\/p>\n
    need   of   money   to   meet   certain   expenses   and   therefore,   he<\/p>\n
    approached one Haroon Seth, who is said to be brother-in-law of the<\/p>\n
    Plaintiffs.   Haroon Seth agreed to advance the amount however, he<\/p>\n
    wanted Defendant No.5 to execute some documents as security of<\/p>\n
    the said amount.  Defendant No.5 received the amount of Rs.6,000\/-\n<\/p>\n
    from  Haroon  Seth  as  a   loan  and  also  signed  on  blank paper,  and<\/p>\n
    handed   over   the   same   to   Haroon   Seth.     It   was   agreed   that   on<\/p>\n
    repayment   of   the   amount,   the   said   paper   bearing   signature   of<\/p>\n
    Defendant No.5, would be returned to him.  Later on, Defendant No.5<\/p>\n
    approached   Haroon   Seth   and   offered   to   repay   the   amount   of<\/p>\n
    Rs.6,000\/- and demanded the said signed document but Haroon Seth<\/p>\n
    avoided to receive the amount and to hand over the document saying<\/p>\n
    that   he   had   to   search   out   the   said   document   and   that   when   the<\/p>\n
    document would be traced out, he would return to him.  Due to sharp<\/p>\n
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\n                                              6<\/span><\/p>\n
    increase in the prices as a result of passage of time, Haroon Seth got<\/p>\n
    prepared the false deed of agreement in favour of the Plaiantiff and<\/p>\n
    they have filed the suit falsely misusing that document.  It was further<\/p>\n
    contended that Defendant No.4 Tulshiram was a minor at the time of<\/p>\n
    alleged   agreement   and   no   permission   was   obtained   from   the<\/p>\n
    Competent Court for sale of his share in the suit property.  By making<\/p>\n
    an amendment to the written statement, they also pleaded that the<\/p>\n
    land   was   a   Patil   inam   land   and   could   not   be   transferred   without<\/p>\n
    obtaining   necessary   permission   and   without   depositing   50%   of   the<\/p>\n
    market price of the land with the Government.  On all these grounds,<\/p>\n
    the   suit   was   contested.     According   to   them,   because   of   these<\/p>\n
    reasons, the suit is liable to be dismissed.\n<\/p>\n
    4.          The Trial Court framed several issues and after the hearing<\/p>\n
    the   evidence   of   both   the   parties,   rejected   the   contentions   of   the<\/p>\n
    Defendants and  passed the  decree for specific performance of  the<\/p>\n
    contract in favour of the Plaintiffs.\n<\/p>\n
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\n                                             7<\/span><\/p>\n
    5.         Being aggrieved by the Judgment and Decree passed by<\/p>\n
    the Trial Court, the Defendants preferred Regular Civil Appeal No.31<\/p>\n
    of 1986. The learned Appellate Court also rejecteed the contentions<\/p>\n
    of the Defendants that they had not entered into an agreement for<\/p>\n
    sale with the Plaintiffs; that they had not received earnest money and<\/p>\n
    that   it   was   only   a   loan   transaction   between   Defendant   No.5   and<\/p>\n
    Haroon Seth.  The Lower Appellate Court also came to the conclusion<\/p>\n
    that   it   was   responsibility   of   the   defendants   to   obtain   necessary<\/p>\n
    permission for sale of the land under Urban Land Ceiling Act as well<\/p>\n
    as Tenancy   Act.   The learned Lower Appellate Court also rejected<\/p>\n
    the   contention   that   the   contract   is   not   enforceable   due   to   any<\/p>\n
    provision  of  Inam  Abolition  Act  or the  Tenancy  Act.    However,  the<\/p>\n
    learned Appellate Court came to the conclusion that at the time of the<\/p>\n
    agreement for sale, Respondent No.4 Tulshiram was a minor and his<\/p>\n
    mother Housabai was not competent to enter into an agreement to<\/p>\n
    sell the share of the minor in the land.  With this finding, the Appellate<\/p>\n
    Court modified the decree passed by the Trial Court and as a result of<\/p>\n
    the same, the decree was passed in favour of the Plaintiffs in respect<\/p>\n
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\n                                                 8<\/span><\/p>\n
    of 3\/4th share of the suit land with direction to the Plaintiff to deposit<\/p>\n
    balance amount of Rs.5,250\/- towards that share.  The decree passed<\/p>\n
    by   the   Trial   Court   was   set   aside   to   the   extent   of   1\/4th   share   of<\/p>\n
    Defendant   No.4   in   the   suit   land.     The   Appellate   Court   directed<\/p>\n
    Defendant   Nos.   1   to   3   to   secure   the   necessary   permission   under<\/p>\n
    Section 63 of the Bombay Tenancy and Agricultural Lands Act within<\/p>\n
    the   period   of   three   months   for   which   the   Plaintiffs   would   bear<\/p>\n
    expenses.     The   Appellate     Court   also   directed   that   in   case   of<\/p>\n
    defendants failing to obtain permission, the Plaintiff would secure the<\/p>\n
    permission through the Court and thereafter, the sale deed could be<\/p>\n
    executed.   Being aggrieved, the Defendants have filed this Second<\/p>\n
    Appeal.\n<\/p>\n
    6.          Heard learned  Counsel for both the parties.   The  Appeal<\/p>\n
    was admitted on 29.11.1991 by following order :-\n<\/p>\n
                “The   nature   of   the   suit   transaction   and   the   discretion  <\/p>\n
                exercised raised substantial question of law.”\n<\/p>\n
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\n                                                9<\/span><\/p>\n
    7.          The Second Appeal can be admitted and heard only on the<\/p>\n
    substantial   question   of   law   which   may   be   raised.     As   pointed   out<\/p>\n
    above, at the time of admitting the appeal, substantial questions of<\/p>\n
    law were not formulated.  Therefore, before formulating the questions<\/p>\n
    of   law,   it   will   be   necessary   to   note   down   the   admitted   facts   and<\/p>\n
    concurrent findings of facts given by the Courts below.\n<\/p>\n
    8.          Admittedly,  the suit land originally belonged  to Defendant<\/p>\n
    No.5 Khanderao.   However, before the suit transaction, he had got<\/p>\n
    the land mutated in the names of his 4 sons, who are Defendant Nos.\n<\/p>\n
    1 to 4.  Defendant No.4 Tulsiram was aged 12 years when the alleged<\/p>\n
    agreement took place in 1978 and on his behalf,  the agreement was<\/p>\n
    signed by his mother as a guardian.   In fact,  in the presence of the<\/p>\n
    father i.e. Defendant No.5 Khanderao, the mother could not be legal<\/p>\n
    guardian of defendant.  Admittedly, no permission was obtained from<\/p>\n
    the District Court for the purpose of sale of the property belonging to<\/p>\n
    Defendant No.4.   In view of this, the lower Appellate Court refused<\/p>\n
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\n                                                 10<\/span><\/p>\n
    specific   performance   of   contract   to   the   extent   of   1\/4th   share   of<\/p>\n
    Defendant   No.4   and   passed   the   decree   in   respect   of   3\/4th   share<\/p>\n
    belonging to Defendant Nos.1 to 3, who were themselves signatories<\/p>\n
    of the agreement.  The Plaintiffs have also preferred cross objections<\/p>\n
    in   respect   of   dismissal   of   their   suit  to   the   extent   of   1\/4th   share  of<\/p>\n
    Defendant No.4.   I find that the Trial Court had not given any reason<\/p>\n
    on this aspect and the Appellate Court has given valid reasons while<\/p>\n
    refusing   specific   performance   to   the   extent   of   1\/4th   share   of<\/p>\n
    Defendant No.4.  Therefore, I find no substance in the cross objection<\/p>\n
    and therefore, the cross objection is liable to be rejected.\n<\/p>\n
    9.           Both the Courts below have given concurrent findings that<\/p>\n
    the defendants had entered into an agreement to sell the suit land to<\/p>\n
    the Plaintiffs for consideration of Rs.15,000\/- and they had received<\/p>\n
    amount of Rs.6,000\/- as earnest money and they had executed an<\/p>\n
    agreement   for   sale.   Both   the   Courts   below   also   held   that   the<\/p>\n
    defendants were to obtain necessary permission under Section 26 of<\/p>\n
    the   Urban   Land   Ceiling   Act   and   under   Section   63   of   the   Bombay<\/p>\n
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\n                                           11<\/span><\/p>\n
    Tenancy and Agricultural Lands Act from the Competent Authorities<\/p>\n
    before   executing   sale   deed.     Both   the   Courts   below   found   that<\/p>\n
    permission   under   Section   26   of   the   Urban   Land   Ceiling   Act   was<\/p>\n
    obtained   by   the   defendants   on   30th   August   1978.     Only   the<\/p>\n
    permission under Section 63 of Tenancy Act was not obtained.  There<\/p>\n
    is   a concurrent finding  of  fact  from both  the  Courts below that the<\/p>\n
    Defendants had failed to prove that Defendant No.5 Khanderao had<\/p>\n
    obtained loan of Rs.6,000\/- from Haroon Seth and that he had not<\/p>\n
    entered into any agreement for sale with the Plaintiffs.   There is no<\/p>\n
    material  on  record to  show that the concurrent  findings of facts on<\/p>\n
    these points are either per se wrong or perverse in view of the oral or<\/p>\n
    documentary   evidence   on   record   and   therefore,   no   substantial<\/p>\n
    question of law can be raised in respect of these findings.\n<\/p>\n
    10.        The   learned   Counsel   for   the   Defendants\/Appellants<\/p>\n
    contended that as per the terms of the alleged contract, the sale deed<\/p>\n
    was   to   be   executed   within   six   months   from   17.7.1978   when   the<\/p>\n
    agreement was entered into and the last date for execution of sale<\/p>\n
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\n                                                12<\/span><\/p>\n
    deed was 17.1.1979 and the permission was to be obtained from both<\/p>\n
    the authorities under the Urban Land Ceiling Act as well as Tenancy<\/p>\n
    Act within the said period.  The Plaintiffs were bear the expenses of<\/p>\n
    obtaining   permission   as   well   as   to   execute   the   sale   deed.     The<\/p>\n
    Plaintiffs took a stand later on that they were not liable to bear the<\/p>\n
    expenses of obtaining permission and therefore, no steps were taken<\/p>\n
    for the purposes of obtaining the permission under Section 63 of the<\/p>\n
    Tenancy Act and as a result, permission was not obtained within the<\/p>\n
    period.  The suit was filed on 17.2.1984 and thus, the suit is barred by<\/p>\n
    limitation.   The learned Counsel also contended that because of the<\/p>\n
    said stand taken by the Plaintiff in respect of expenses of obtaining<\/p>\n
    permission, it must be held that they were not ready and willing to<\/p>\n
    perform their part of the contract.   Decree for specific performance<\/p>\n
    could   not   be   passed   with   condition   to   obtain   permission   under<\/p>\n
    Tenancy   Act.     It   is   further   contended   that   the   Defendants   are   the<\/p>\n
    small   cultivators   holding   a   small   piece   of   land.     If   the   decree   for<\/p>\n
    specific performance is granted, they would be deprived of their land.\n<\/p>\n
    Further,  value of  the land  has  increased  many folds  from  the  year<\/p>\n
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\n                                               13<\/span><\/p>\n
    1978 to 2008.   If the discretion is used in favour of the Plaintiffs in<\/p>\n
    granting the decree for specific performance, the defendants would be<\/p>\n
    put to great financial loss and therefore, it will not be in the interest of<\/p>\n
    justice   to   pass   a   decree   for   specific   performance   in   the   favour   of<\/p>\n
    Defendants to the Plaintiffs.\n<\/p>\n
    11.          In view of the above arguments advanced by the learned<\/p>\n
    Counsel   for   the   Defendants\/Appellants,   following   substantial<\/p>\n
    questions of law may be formulated :-\n<\/p>\n
                 (i) Whether the Courts below, in the face of the pleadings<\/p>\n
    and   evidence,   committed   error   in   holding   that   the   suit   was   within<\/p>\n
    limitation ?\n<\/p>\n
                 (ii) Whether the Courts below, in face of documentary and<\/p>\n
    oral evidence and the pleadings, committed error in holding that the<\/p>\n
    Plaintiffs were always ready and willing to perform their part of the<\/p>\n
    contract ?\n<\/p>\n
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\n                                               14<\/span><\/p>\n
                (iii)   Whether   the   Courts   below   committed   error   in   using<\/p>\n
    discretion   in   favour   of   the   Plaintiffs   while   granting   the   decree   for<\/p>\n
    specific performance of the contract ?\n<\/p>\n
                (iv) Whether the Courts below committed error in passing<\/p>\n
    the decree for specific performance subject to obtaining permission<\/p>\n
    under   Section   63   of   the   Bombay   Tenancy   and   Agricultural   Lands<\/p>\n
    Act ?\n<\/p>\n
    12.         To   appreciate   the   arguments   advanced   on   behalf   of   the<\/p>\n
    Appellants   and   the   counter   arguments   advanced   on   behalf   of   the<\/p>\n
    Respondents\/Plaintiffs, it will be necessary to state the terms of the<\/p>\n
    agreement between the parties.  The agreement for sale reveals that<\/p>\n
    the Defendants had agreed to sell the suit land for consideration of<\/p>\n
    Rs.15,000\/- and they had received amount of Rs.6,000\/- as earnest<\/p>\n
    money   at   the   time   of   executing   the   agreement   for   sale   and   the<\/p>\n
    balance amount of Rs.9,000\/- was to be paid by the Plaintiffs to the<\/p>\n
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\n                                              15<\/span><\/p>\n
    Defendants   at   the   time   of   execution   of   sale   deed   before   the   sub-\n<\/p>\n
    Registrar.   The period of completing the transaction was fixed to be<\/p>\n
    six months from 17.7.1978 to 17.1.1979.   It also provides that as a<\/p>\n
    land was situated within the area of Municipal Corporation, Nashik, it<\/p>\n
    was   necessary   to   obtain   permission   from   the   competent   authority<\/p>\n
    under   the   Urban   Lands   Ceiling   Act   and   after   obtaining   that<\/p>\n
    permission,   further   permission   would   be  required  to   be   taken   from<\/p>\n
    Assistant Collector, Nashik under Section 63 of the Tencancy Act.  It<\/p>\n
    is specifically provided that the vendors, i.e.  the defendants were to<\/p>\n
    secure the permission at the cost of the plaintiffs.  It further provided<\/p>\n
    that after obtaining permision under Section 63 of the Tenancy Act,<\/p>\n
    the sale deed would be executed.   In case, the above referred both<\/p>\n
    the permissions could not be secured within the specified period, the<\/p>\n
    period   for   execution   of   sale   deed   could   be   extended   till   both   the<\/p>\n
    permissions   were   obtained   and   further   by   period   of   one   month<\/p>\n
    beyond the date of obtaining the permission.\n<\/p>\n
    13.         Under Article 54 of the Limitation Act for a suit for specific<\/p>\n
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\n                                             16<\/span><\/p>\n
    performance of  contract, the  period of  limitation  is  three years and<\/p>\n
    when the date of performance is fixed, the period of limitation begins<\/p>\n
    to run from that day and when no such date is fixed, the period of<\/p>\n
    limitation begins to run when the Plaintiff has knowledge of refusal of<\/p>\n
    performance.   In  the present case, the period was specified in  the<\/p>\n
    agreement.   In view of the terms of the contract noted above,   it is<\/p>\n
    clear that the parties had agreed that the sale transaction should be<\/p>\n
    completed   within   six   months   i.e.   by   17.1.1979   but   this   period   was<\/p>\n
    subject   to   condition   of   obtaining   permission   for   sale   from   the<\/p>\n
    competent authorities under both the Acts.   If the permission would<\/p>\n
    have   been   obtained   within   that   period,   the   transaction   was   to   be<\/p>\n
    completed   on   or   before   17.1.1979   and   in   that   case   the   period   of<\/p>\n
    limitation would begin to run from 17.1.1979 and would come to an<\/p>\n
    end on 17.1.1982.     Admittedly, the permission under Section 26 of<\/p>\n
    Urban Lands Ceiling Act was obtained by 30th August 1978 i.e. well<\/p>\n
    within time.   However, permission under Section 63 of the Tenancy<\/p>\n
    Act was not obtained.   There is nothing to show that the defendants<\/p>\n
    had filed any application before the competent authority for obtaining<\/p>\n
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\n                                              17<\/span><\/p>\n
    their   permission.       As   per   the   terms   of   the   contract   it   was   the<\/p>\n
    responsibility   of   the   defendants  to   obtain   that   permission   and   then<\/p>\n
    both   the   parties   were   to   complete   the   sale   transaction.     As   the<\/p>\n
    defendants   had   failed   to   move   an   applicaion   for   permission   under<\/p>\n
    Section   63   of   the   Tenancy   Act,   naturally,   the   permission   was   not<\/p>\n
    secured and as long as that permission was not secured, the period<\/p>\n
    for completing the transaction would automatically get extended under<\/p>\n
    the  terms   of  the  contract.     Mr.  Deogirikar,  learned Counsel  for  the<\/p>\n
    defendants\/appellants   vehemently   contended   that   it   was   the<\/p>\n
    responsibility   of   the   Plaintiffs   to   approach   the   competent   authority<\/p>\n
    under Section 63 and to obtain permission.   However, he could not<\/p>\n
    point   out   any   legal   provision   under   which   the   application   for   that<\/p>\n
    permission   to   be   made   only   by   the   purchaser   of   the   land.     The<\/p>\n
    application could be moved by either of the party and as per terms of<\/p>\n
    the   contract   it   was   responsibility   of   the   defendants   to   secure   the<\/p>\n
    permission.  It means it was their responsibilithy to file an application<\/p>\n
    before the competent authority for obtaining permission under Section<\/p>\n
    63   of   the   Tenancy   Act.     Mr.   Deogirikar   contended   that   it   was<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 13:54:15 :::<\/span>
\n                                                 18<\/span><\/p>\n
    necessary   for   the   competent   authority   to   be   satisfied   that   the<\/p>\n
    permission could be granted under the provisions of Section 63 of the<\/p>\n
    Tenancy   Act   and     the   relevant   rules   and   unless   the   purchasers<\/p>\n
    appeared   before   that   authority   with   necessary   evidence,   the<\/p>\n
    competent   authority   could   not   come   to   the   conclusion   that   the<\/p>\n
    plaintiffs   deserve   that   permission.     However,   in   my   considered<\/p>\n
    opinion, if the application would have been filed by the defendants,<\/p>\n
    the Plaintiffs could  be called upon to  appear  before the competent<\/p>\n
    authority and to produce necessary oral and documentary evidence to<\/p>\n
    satisfy the concerned authority that under the provisions of law and<\/p>\n
    the rules they could be allowed to purchase the land.     Unless the<\/p>\n
    application was made, that stage would not come.   The defendants<\/p>\n
    failed   to   perform   their   part   of   the   contract   by   filing   the   application<\/p>\n
    before the competent authortiy to secure that permission.,  In view of<\/p>\n
    these circumstances, it must be held that the suit was not barred by<\/p>\n
    limitation.\n<\/p>\n
    14.           Mr. Anturkar, who also argued on behalf of the defendants<\/p>\n
                                                                   ::: Downloaded on – 09\/06\/2013 13:54:15 :::<\/span>
\n                                             19<\/span><\/p>\n
    after   completion   of   arguments   by   Mr.   Deogirikar,   vehemently<\/p>\n
    contended that if the conduct of the Plaintiffs and their stand is looked<\/p>\n
    into in the face of the terms of the contract, it would appear that they<\/p>\n
    were  not  willing  to  perform  their  part  of  the  contract.   The  learned<\/p>\n
    Counsel pointed out that in the notice dated 25.11.1983 issued by the<\/p>\n
    plaintiffs   through   their   Advocate   to   the   defendants,   they   had<\/p>\n
    contended   that   the   defendants   had   to   bear   the   costs   of   obtaining<\/p>\n
    permission and in the plaint also the plaintiffs had pleaded that the<\/p>\n
    defendants had to bear cost of obtaining permission.  He pointed out<\/p>\n
    that this stand taken by the plaintiffs in the notice and in the plaint was<\/p>\n
    contrary to the specific term of the contract that the defendants would<\/p>\n
    secure the permission at the costs of the plaintiffs i.e. the purchaser.\n<\/p>\n
    Mr. Anturkar contended that this indicated that the plaintiffs were not<\/p>\n
    willing  to bear the cost of obtaining permission and if it is so, it must<\/p>\n
    be held that they were not ready and willing to perform their part of<\/p>\n
    the contract.     It is true that this stand taken by the plaintiffs, in the<\/p>\n
    said notice which was issued before filing the suit as well as in the<\/p>\n
    plaint, is contrary to the specific terms of the contract in respect of the<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 13:54:15 :::<\/span>
\n                                                  20<\/span><\/p>\n
    cost of obtaining the permission.  However, it is material to note that<\/p>\n
    in   the   reply   to   that   notice   or   in   the   written   statement   filed   by   the<\/p>\n
    defendants,   while   they   had   denied   the   contract   and   they   had<\/p>\n
    contended  that   it  was   the  loan  transaction  between  Defenant   No.5<\/p>\n
    Khanderao and Haroon Seth, they had not specifically contended that<\/p>\n
    as per the terms of the contract the plaintiffs were to bear the cost of<\/p>\n
    obtaining permission and as they were not willing to bear that cost,<\/p>\n
    the permission could not be obtained.  If they would have taken such<\/p>\n
    a   stand,   they   would   be   perfectly   justified   but   it   appear   that   while<\/p>\n
    denying the whole agreement and all the pleadinga of the plaintiffs in<\/p>\n
    their   statement   generally,   they   did   not   take   any   specific   plea   in<\/p>\n
    respect   of   the   cost   of   taking   permission.       It   appears   that   on   this<\/p>\n
    aspect even the plaintiff was not challenged in the cross examination,.\n<\/p>\n
    The Trial Court came to the specific finding that the Plaintiffs were<\/p>\n
    always ready and willing to perform their part of the contract.   It is<\/p>\n
    material   to   note   that   in   the   appeal   memo   filed   before   the   lower<\/p>\n
    Appellate Court as well as in the appeal memo of the Second Appeal<\/p>\n
    filed before this Court, no ground has been taken in respect of the<\/p>\n
                                                                    ::: Downloaded on – 09\/06\/2013 13:54:15 :::<\/span>
\n                                                21<\/span><\/p>\n
    costs of obtaining permission.   The   learned  lower Appellate Court<\/p>\n
    simply noted that the Trial Court had come to the conclusion that the<\/p>\n
    plaintiffs had been always ready and willing to perform their part of the<\/p>\n
    contract.  It appears that as this finding was not challenged before the<\/p>\n
    Appellate Court, the Appellate court did not consider this apsect at all.\n<\/p>\n
    This ground was not taken in the appeal memo nor there is nothing on<\/p>\n
    record   to   show   that   this   ground   was   raised   even   at   the   time   of<\/p>\n
    arguments before the lower Appellate Court.   As pointed out earlier,<\/p>\n
    the Second Appeal was admitted on merely observing that the nature<\/p>\n
    of the suit transaction and the discretion exercised, raised substantial<\/p>\n
    questions   of   law.     It   must   be   persumed   that   the   questions   of   law<\/p>\n
    would be only those which were actually raised in the grounds taken<\/p>\n
    by the Appellant in the appeal memo but the appeal memo clearly<\/p>\n
    shows that the Appellant did not raise this ground and for the first time<\/p>\n
    this arguments was advanced before this Court by Mr. Anturkar.   In<\/p>\n
    view of the conduct of the defendants in not challenging the findings<\/p>\n
    of the Trial Court about the readiness and willingness of the Plaintiffs<\/p>\n
    either   before   the   first   Appellate   Court   or   before   this   Court   on   this<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 13:54:15 :::<\/span>
\n                                               22<\/span><\/p>\n
    specific   ground,   in   my   considered   opinion   it   is   too   late   for   the<\/p>\n
    defendants to raise this ground.  The Plaintiffrs had paid the earnest<\/p>\n
    amount   of   Rs.6,000\/-.       As   per   the   terms   of   the   contract,   after<\/p>\n
    obtaining   the   permission   from   the   competent   authorities   the<\/p>\n
    defendants were to inform the plaintiffs and thereafter, the sale deed<\/p>\n
    to be executed and registered.  The defendants never approached the<\/p>\n
    competent   authorities   under   Section   63   of   the   Tenancy   Act   and<\/p>\n
    therefore, the question of even bearing the cost never arose nor it<\/p>\n
    was  the   stand   of   the   defendants  that   they  could   not   approach   the<\/p>\n
    competent  authority   for   that  permission   because  the   plaintiffs  were<\/p>\n
    not willing to bear that expenditure.   It is possible that if they would<\/p>\n
    have     replied   the   notice   issued   by   the   Plaintiffs,   pointing   out   the<\/p>\n
    contradiction   in   their   stand   and   the   terms   of   the   agreement,   the<\/p>\n
    Plaintiffs   would   have   rectified   their   stand   and   there   would   be   no<\/p>\n
    difficulty about the bearing of the cost of the sale.  In view of this, I am<\/p>\n
    unable   to   accept   the   contentiion   of   the   learned   Counsel   for   the<\/p>\n
    defendants that the Plaintiffs were not ready and willing to perform<\/p>\n
    their part of contract.\n<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 13:54:15 :::<\/span>
\n                                               23<\/span><\/p>\n
    15.         The   learned   Counsel   for   the   defendants   also   contended<\/p>\n
    that the agreement for sale itself could not be entered into without<\/p>\n
    obtaining permission.  It is difficult to accept this contention.  Section<\/p>\n
    63   of   the   Tenancy   Act   provides   that   no   sale   (including   sales   in<\/p>\n
    execution of a decree of a Civil Court or for recovery of arrears of land<\/p>\n
    revenue   or   for   sums   recoverable   as   arrears   of   land   revenue)   gift,<\/p>\n
    exchange or lease of any land or interest therin, or no mortgage of<\/p>\n
    any land or interest therein, in which the possession of the mortgaged<\/p>\n
    property   is   delivered   to   the   mortgagee   shall   be   valid   in   favour   of<\/p>\n
    person   who   is   not   an   agriculturist   without   obtaining   necessary<\/p>\n
    permission   from   the   Collector.       Of   course,   certain   conditions   in<\/p>\n
    Section 63 as well as in the rules there under,   have to be satisfied<\/p>\n
    before the Collector may grant the permission.  The sale of the land to<\/p>\n
    non-agriculturist shall not be valid without obtaining permission. The<\/p>\n
    sale does not take place unless the sale deed is executed. Agreement<\/p>\n
    of the sale and the sale cannot be equated.   The agreement clearly<\/p>\n
    states   that   the   sale   transaction   was   to   be   completed   only   after<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 13:54:15 :::<\/span>
\n                                               24<\/span><\/p>\n
    obtaining   necessary   permission   under   Section   63.     Therefore,   the<\/p>\n
    agreement could not be invalid.  The Courts below passed the decree<\/p>\n
    for specific performance subject to condition of obtaining necessary<\/p>\n
    permission   under Section 63 and directed the Defendants to obtain<\/p>\n
    that permission as per the terms of the contract.  It is difficult to find<\/p>\n
    any fault with the conditional decree passed by the Courts below.  It<\/p>\n
    goes   without   saying   that   if   the   competent   authority   refuses   the<\/p>\n
    permission under Section 63 the sale deed cannot be executed.  Mr.<\/p>\n
    Agarwal, learned Counsel for the Plaintiffs rightly relied upon Balu B.\n<\/p>\n
    Zarole   V\/s.   Shaikh   Akabar     (AIR   2001   Bombay   364)   wherein   the<\/p>\n
    learned Single Judge of this Court held in the similar circumstances<\/p>\n
    that the decree for specific performance granted subject to sanction of<\/p>\n
    Collector is not improper.  This authority is squarely applicable to the<\/p>\n
    facts   of   the   present   case.     Therefore,   it   cannot   be   held   that   the<\/p>\n
    conditional   decree   passed   by   the   Court   subject   to   obtaining<\/p>\n
    permission of the authority under Section 63 of the Tenancy Act is not<\/p>\n
    valid.\n<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 13:54:15 :::<\/span>
\n                                                25<\/span><\/p>\n
    16.         The   learned   Counsel   for   the   defendants\/appellants<\/p>\n
    vehemently contended that the consideration for the suit transaction<\/p>\n
    was only Rs.15,000\/- and a meager amount of Rs.6,000\/- was paid as<\/p>\n
    per the terms of the agreement.  The learned Counsel contended that<\/p>\n
    the relief of specific performance of the contract is discretionary and in<\/p>\n
    view  of the facts that the defendants  are   poor  persons,  holding  a<\/p>\n
    small   piece   of   land   and   further,   the   prices  of   land   have   increased<\/p>\n
    manifold and therefore, it will not be in the interest of justice to grant<\/p>\n
    decree for specific performance.  It is contended that if 30 years after<\/p>\n
    the agreement, the Defendants are required to execute the sale deed<\/p>\n
    as   per   the   price   fixed   in   the   year   1978,   they   would   be   practically<\/p>\n
    deprived   of   their   property.     Mr.   Agarwal,   learned   Counsel   for   the<\/p>\n
    Plaintiffs vehemently contended that merely because long time has<\/p>\n
    lapsed in the litigation, the decree for specific performance cannot be<\/p>\n
    refused to the plaintiffs because they were not at fault.   It is pointed<\/p>\n
    out   that   the   plaintiffs   were   required   to   file   the   suit   because   the<\/p>\n
    defendants had taken a false stand of loan transaction.  The suit was<\/p>\n
    filed in 1984 and it was decreed on 9.8.1985 i.e. within almost one & a<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 13:54:15 :::<\/span>
\n                                            26<\/span><\/p>\n
    half   year.     Against   that   decree   the   Defendants   had   preferred   an<\/p>\n
    Appeal and that Appeal was decided on 6th June 1991, confirming<\/p>\n
    the decree for specific performance in respect of 3\/4th share.   That<\/p>\n
    judgment   was   challenged  in   the   present   appeal  and  this  appeal   is<\/p>\n
    pending for last about 17 years.   All this period has been lost only<\/p>\n
    because   the   defendants   filed   the   Appeals.     He   also   relied   upon<\/p>\n
    number of authorities in support of his contention that normally the<\/p>\n
    decree   for   specific   performance   of   the   contract   should   be   granted<\/p>\n
    unless there are specific circumstances against the same.   He also<\/p>\n
    contended that merely because the prices are increased, the decree<\/p>\n
    cannot be refused now.   In support of this, he placed reliance upon<\/p>\n
    Mrs. Chandnee Widya Vati Madden  V\/s. Dr. C.L. Katial  (AIR 1964<\/p>\n
    S.C. 978),   P.S. Ramkrishna Reddy  V\/s. M.K. Bhagyalakshmi (AIR<\/p>\n
    2007 S.C. 1256),  P.C. Varghese V\/s. Devaki Amma Balambik Devi<\/p>\n
    (AIR 2006 S.C. 145),  P. D’
\n                              souza v\/s. Shondrilo  Naidu (AIR 2004<\/p>\n
    S.C. 4472)   and Gobind   Ram   V\/s. Gian Chand (AIR 2000 S.C.\n<\/p>\n
    3106).    In all these cases, it was held that merely because of the<\/p>\n
    lapse of time, if there was escalation of prices, the decree for specific<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 13:54:15 :::<\/span>
\n                                               27<\/span><\/p>\n
    performance   cannot   be   refused   unless   the   purchaser   was   taking<\/p>\n
    undue   or   unfair   advantage.     It   may   be   noted   that   in   the   case   of<\/p>\n
    Gobind Ram V\/s. Gian Chand, in   January 1973 an agreement for<\/p>\n
    sale of immovable property had taken for consideration of Rs.16,000\/-\n<\/p>\n
    and   amount   of   Rs.1,000\/-   was   paid   as   earnest   money,   balance<\/p>\n
    amount was to be paid at the time of sale deed.  In 1976, the suit was<\/p>\n
    decreed  and  the   Plaintiff   was  directed  to  pay  the  balance   amount.\n<\/p>\n
    When the appeal was before the High Court, the High Court directed<\/p>\n
    the   Respondent\/Plaintiff   to   pay   further   sum   of   Rs.1,00,000\/-   to<\/p>\n
    compensate   the   vendors.     When   the   matter   finally   went   to   the<\/p>\n
    Supreme Court,  Their Lordships directed the  purchasers to  deposit<\/p>\n
    further sum of Rs.3,00,000\/- in addition to the agreed price so that the<\/p>\n
    vendors could be substantially compensated though he could not get<\/p>\n
    the full market price of that value.  In the present case, the decree has<\/p>\n
    been passed only in respect of 3\/4th share.   Thus, the value of the<\/p>\n
    3\/4th land as per the terms of the contract is only Rs. 11,250\/-, out of<\/p>\n
    which an amount of Rs.6,000\/- was paid at the time of agreement,<\/p>\n
    therefore,   the   lower   Appellate   Court   directed   the   Plaintiffs   to   pay<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 13:54:15 :::<\/span>
\n                                              28<\/span><\/p>\n
    balnce amount of Rs.5,250\/-.  It may be noted that when the learned<\/p>\n
    Counsel   for   the   defendants   vehemently   argued   about   the   price<\/p>\n
    escalation and the financial loss to which the defendants whould be<\/p>\n
    put   to,   the   learned   Counsel   for   the   plaintiffs\/respondents   after<\/p>\n
    obtaining   instructions   from   his   clients   made   a   statement   that   the<\/p>\n
    plaintiffs   are   willing   to   deposit   further   amount   of   Rs.5,00,000\/-   in<\/p>\n
    addition to the balance amount of consideration.   In my considered<\/p>\n
    opinion,   this   offer   is   substantial   and   now   inspite   of   the   balance<\/p>\n
    amount of Rs.5,250\/-, the defendants would be paid further amount of<\/p>\n
    Rs.5,00,000\/-.   It is possible that the price of the land today may be<\/p>\n
    much more than the amount offered.   As the agreement had taken<\/p>\n
    place in 1978 and not in 2008,   the Defendants cannot expect the<\/p>\n
    market price of the land prevailing in the year 2008, particularly, when<\/p>\n
    the delay has been caused by the defendants themselves and not by<\/p>\n
    the above plaintiffs.\n<\/p>\n
    17.         Taking into consideration all the circumstances, I do not find<\/p>\n
    any substance in the Appeal.   However, as per the statement made<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 13:54:15 :::<\/span>
\n                                               29<\/span><\/p>\n
    by   the   learned   Counsel   for   the   Plaintiffs\/Respondents,   they   shall<\/p>\n
    deposit   the   balance   amount   of   consideration   of   Rs.5,250\/-   and   in<\/p>\n
    addition to that, further amount of Rs.5,00,000\/- before the Trial Court<\/p>\n
    within   two   months   from   this   date.     The   learned   Counsel   for   the<\/p>\n
    Plaintiffs\/Respondents   makes   a   statement   that   the   necessary<\/p>\n
    permission under Section 63 of the Tenancy Act has already granted<\/p>\n
    by   the   competent   authority   on   an   application   made   by   the   Court<\/p>\n
    Commissioner   in   exemption   of   the   decree.     If   the   permission   is<\/p>\n
    already obtained, within one month after depositing the amount, the<\/p>\n
    defendant Nos. 1 to 3 shall execute the sale deed as per the decree<\/p>\n
    passed by the First Appellate Court.   In case, the permission under<\/p>\n
    Section   63     is   not   yet   granted,   the   Defendant   Nos.   1   to   3   shall<\/p>\n
    approach the competent authority within two months from this date to<\/p>\n
    secure   permission   for   sale   of   the   land   under   Section   63   of   the<\/p>\n
    Tenancy Act, under intimation to the Plaintiffs.  The sale deed shall be<\/p>\n
    executed   after   the   permission   is   granted.     After   execution   and<\/p>\n
    registration of sale deed, the Defendant Nos.1 to 3 shall be at liberty<\/p>\n
    to withdraw the amount deposited with the Trial Court.\n<\/p>\n
                                                                ::: Downloaded on – 09\/06\/2013 13:54:15 :::<\/span>
\n                                        30<\/span><\/p>\n
    18.       The Defendants shall co-operate the Plaintiffs in securing<\/p>\n
    that permission.\n<\/p>\n
    19.       The Appeal is disposed of accordingly.\n<\/p>\n
                                            (J.H. BHATIA, J.)<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 13:54:15 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Ambadas Khanderao Hagvane vs Shaikh Razaq Shaikh Yakub on 25 September, 2008 Bench: J. H. Bhatia 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 634 of 1991 1. Ambadas Khanderao Hagvane age : 39 yrs, Occu : Mechanic R\/o. At : Vihitgaon, Taluka and District […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-173627","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nAmbadas Khanderao Hagvane vs Shaikh Razaq Shaikh Yakub on 25 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ambadas-khanderao-hagvane-vs-shaikh-razaq-shaikh-yakub-on-25-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ambadas Khanderao Hagvane vs Shaikh Razaq Shaikh Yakub on 25 September, 2008 - 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