Second Appeal No.192 of 2013

9th May, 2014

Petitioner Counsel: Mr. S.D. SIRPURKAR
Respondent Counsel: Mr. R.K. BORKAR

Cases Cited:
Gundaji Satwaji Shinde Vs. Ramchandra Bhikaji Joshi, (1979) 2 SCC 495 [Para 6]
Asudamal Laxmandas Sindhi Vs. Kisanrao Wamanrao Dharmale & ors, 2003(4) Mh. L.J. 134 [Para 7]
Krishna Sadashiv Kale & ors. Vs. Bhagwan Natthu Kale & ors, 2008(4) ALL MR 529=2008(4) Mh. L.J. 663 [Para 7]

JUDGMENT

JUDGMENT :- This appeal is directed against the judgment and order dated 22.11.2012 passed by the Principal District Judge, Gondia in Regular Civil Appeal No. 48 of 2012. The appeal was dismissed. First Appeal arose from judgment and order dated 12.2.2008 passed in Special Civil Suit No. 17 of 2004 delivered by the Civil Judge, Senior Division, Gondia. The trial Court was pleased to decree the suit.

2. The facts which are briefly stated are as under :

Defendant owned and possessed agricultural land bearing survey no. 42/2-A, area 1.25 acres and survey no. 41/2-A, area 0.40 acre situated at mouza Fulchur, Tahsil and District Gondia. Defendant entered into an agreement with plaintiffs on 11.8.2003 for sale of suit land for a consideration of Rs. 2,31,000/-. Plaintiffs paid earnest money of Rs. 21,000/- to the defendant and balance consideration was agreed to be paid at the time of execution of sale deed which was to be obtained on or before 31.3.2004. The defendant agreed to to get the suit land measured through TILR, Gondia at the costs of plaintiffs for working out the exact amount of consideration and it was also agreed that if the area of suit land was found less than that was mentioned in 7/12 extract, the consideration @ Rs. 1400/- per decimal would be paid less. Plaintiffs paid measurement charges to the defendant on 11.11.2003. However, defendant failed to get the land measured through TILR. On the request of defendant, plaintiffs paid entire amount of balance consideration to him on defendant undertaking to refund amount proportionate to lesser area, if any, found on measurement of land. Date 25.11.2003 was fixed for execution of sale deed. Plaintiffs purchased stamp papers of Rs. 9000/- and prepared draft sale deed and waited for defendant at the office of Sub-Registrar, Gondia on 25.11.2003. However, defendant failed to come to execute sale deed. The land was then got measured in presence of defendant and others and the area was found tallying with the one stated in 7/12 extract. Thereafter also defendant failed to execute sale deed. Hence, plaintiffs filed suit.

3. Defendant denied suit claim. He denied averments regarding measurement, fixing of dates of execution of sale deed etc. He alleged that agreement in question was bogus and fabricated. Without prejudice to this, defendant claimed that plaintiffs are not agriculturist and they are not entitled to purchase agricultural land in view of bar created by Section 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. Therefore, agreement for sale is not enforceable in law and suit is not tenable. It is further contended that the Civil Court had no jurisdiction to decide the issue as to whether plaintiff is agriculturist or not. It was alternatively contended that the value of suit land was more than Rs. 10 lacs per acre. He prayed for dismissal of suit.

4. The trial Court upon evidence led found the fact proved that the defendant had entered into an agreement with plaintiffs on 11.8.2003 to sell out suit land for consideration of Rs. 2,31,000/-. It further held that the defendant had received Rs. 21,000/- towards earnest money on 11.8.2003. The Trial Court further held that the plaintiffs had kept the sale deed ready and had purchased stamp papers of Rs. 9000/- and that possession of suit land was handed over by defendant to plaintiffs on 11.8.2003. The trial Court held that there was no bar under Section 89 of the Tenancy Act and decreed the suit with costs. The trial Court directed the defendant to execute a registered sale deed in respect of suit land in favour of plaintiffs after receiving the balance amount of consideration of Rs. 2,08,500/- within three months from the date of order. The trial Court further directed that if the defendant failed to execute sale deed as above, plaintiffs would be entitled to get the sale deed executed through the Court.

5. Defendant preferred appeal being Regular Civil Appeal No. 48 of 2012. The 1st Appellate Court by its judgment and order dated 22nd November 2012 dismissed the appeal. As against these concurrent findings of fact recorded by both the Courts below, defendant has approached this Court in second appeal.

6. Learned counsel for appellant sought to urge that Section 89 of the Tenancy Act lays down that the prior permission of the Commissioner has to be obtained before the sale deed of suit land. He placed reliance on a ruling in Gundaji Satwaji Shinde v. Ramchandra Bhikaji Joshi reported in (1979) 2 SCC 495 to urge that the Civil Court has no jurisdiction to decide an issue arising incidentally in a civil suit which is to be specifically decided by a competent authority under a particular Act. He submits that Civil Court in that case will refer the issue to that authority and dispose of the suit in accordance with the decision of that Authority.

7. The issue is no more res integra. This Court in Asudamal Laxmandas Sindhi v. Kisanrao Wamanrao Dharmale & ors reported in 2003(4) Mh. L. J. 134 and in Krishna Sadashiv Kale & ors v. Bhagwan Natthu Kale & ors reported in 2008 (4) Mh. L. J. 663 : [2008(4) ALL MR 529] had come across similar issue. This Court taking into consideration consistent views of various High Court and the Apex Court while dealing with similar provisions, held that lack of permission could not be an impediment in issuing a decree for specific performance. This Court has held that assuming such a permission is required, that would be a matter for consideration after passing of the decree and at the stage of execution. In Krishna v. Bhagwan, [2008(4) ALL MR 529] (supra), this Court while dealing with the issue, "whether obtaining permission under Section 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 for purchase of agricultural land is prerequisite condition for passing a decree of specific performance of contract of sale ?", held that granting of decree does not mean that the saledeed will necessarily be executed. The plaintiff would always carry the risk of frustration if the competent authority does not grant permission. If the plaintiff was ready to have a decree for specific performance and wait for such permission being granted or refused, there is no law which comes in the way.

8. In view of the settled position of law reproduced above, there is no substantial question of law involved in the present appeal. There is no reason why I should interfere with the concurrent findings of fact recorded by the Courts below.

9. In the result, appeal is dismissed in limine with no order as to costs.

Appeal dismissed.