First Appeal No. 164/1999. Case: Rameshwarlal Vs Dattatraya and Ors.. High Court of Madhya Pradesh (India)
| Case Number | First Appeal No. 164/1999 |
| Judges | Rajendra Menon, J. |
| Issue | Specific Relief Act, 1963 - Sections 9 and 21; Indian Contract Act - Sections 10, 20 and 23; Bombay Hotel and Lodging House Rent Control Act, 1947 - Section 5(3), 10(3), 15, 49 and 50(1); Central Provinces Tenancy Act, 1920; Specific Relief Act, 1877; Civil Procedure Code (CPC), 1908 - Section 172 - Order 21, Rules 4 and 35; Urban Areas (... |
| Citation | 2010 (4) MPHT 352 |
| Judgement Date | January 04, 2010 |
| Court | High Court of Madhya Pradesh (India) |
Judgment:
Rajendra Menon, J., (At Jabalpur)
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This is defendant's first appeal against the judgment and decree dated 25-2-99 passed by the Additional District Judge, Burhanpur decreeing a suit for specific performance filed by the respondents/plaintiffs.
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Facts, which are not in dispute, necessary for deciding the present appeal are, that the land in dispute is situated in Amagird, Tehsil Burhanpur. Appellant herein, Rameshwarlal, is holding Bhumiswami Rights for the entire land. In Revenue Case No. 19/A-2/77-78, he sought diversion of the land for the purpose of using it to establish a colony. The Competent Authority-exercising jurisdiction under Section 172 of the Madhya Pradesh Land Revenue Code, vide order dated 22-6-1979 granted permission, It may be noted that the application for permission under Section 172 of the Code, was accompanied by the relevant documents as per the statutory rule applicable for seeking diversion, i.e., Rule 4 and the documents included a tentative map and layout plan of the area. After obtaining diversion, records indicate that the appellant herein applied for a license to undertake colonization. The license was sought in accordance to the requirement of Section 24 (a) of the Madhya Pradesh Vinirdishta Bhrashta Acharan Nivaran Adhiniyam, 1982 (hereinafter referred to as 'Adhiniyam of 1982'). Under the provisions of Section 24 of the Adhiniyam of 1982, license for establishing a colony was necessary.
At this point, it may be noted that under Section 31 of the Adhiniyam of 1982, transfer of plots in an area of illegal diversion or illegal colonization is void.
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However, after obtaining the requisite Colonizer's License, which was granted vide Exh. D-6, dated 31-1-1989, appellant herein applied for permission to develop the area on 3- 9-91. Records indicate that on 20-1-1992, permission was received vide Exh. D-8. When the aforesaid process was in progress, it is seen that plaintiffs herein and the appellant entered into an agreement for sale of certain plots measuring 34' x 100' at the rate of Rs. 12/- per sq. ft. The total consideration for the sale was to be Rs. 40,800/-. Each of the plaintiffs paid an earnest money of Rs. 25,000/- and it was agreed that the balance amount of sale consideration, i.e., Rs. 15,800/- shall be paid at the time of registration of the sale deed, which was to be executed on or before 31-10-1987. These agreements for sale are executed vide Exhs. P-1 to P-6 on 7-10-1987. Plaintiff Nos. 1, 3, 4, 5 and 6, i.e.,...respondent Nos. 3, 4, 5 and 6, in this appeal, were parties to the agreement and one of the executant to the agreement Rambhau Mahajan having died, he is represented by his Legal Representatives, i.e.,...son and wife, plaintiff Nos. 2 (a) and (b) - respondent Nos. 2 (a) and 2 (b) in this appeal.
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The agreements (Exhs. P-1 to P-6) executed for sale of the plots and the colony being developed by the appellant was named as Mohan Nagar Colony. One of the conditions in these agreements for sale was that the appellant herein was to obtain the requisite permission from the Sub Divisional Officer, as contemplated under the Adhiniyam of 1982, for sale of the plots. It seems that even though the appellant obtained the license (Exh. D-6) and permission for development on 20-1-1992, vide Exh. D-8, for a long period of time, nothing was done even after 31-10-1987 to execute the sale-deeds. According to the plaintiffs, they were approaching the defendant, who used to orally inform them that immediately after permission is obtained, the sale-deed would be executed. When nothing was done, records indicate that the plaintiff on 3-9-93, vide Exhs. P-7 to P-12, served notice through their Counsel for execution of the sale deed. It seems that after some negotiations on 1-4-1994, endorsements were made on the back of Exhs. P-1 to P-6, to the effect that as no permission to sell the land/plots is obtained, sale would be executed within one month from the date permission is granted by the Competent Authority.
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It is the case of the plaintiffs that even though vide Exh. D-12, dated 2-4-1994 and Exh. D-13, dated 16-2-1996, certain permissions were received by the appellant/defendant for transfer of 10 plots measuring 25350 sq.ft. The appellant did not take any action for execution of the sale deed, therefore, again notice (Exh. P-13) was sent on 23-12-94; another notice (Exh. P-14) was sent on 9-8-1995, and when the defendant failed to reply and take action, the suit in question was filed on 294-1996. It is the case of the plaintiffs that vide Exh. D-13, permissions under the statutory rule was granted for selling 13550 sq.ft. and clubbing together the permission granted on various occasions, the total area for which permission was obtained is 38090 sq.ft. It was further the case of the plaintiffs that vide sale deed (Exh. P-23), dated 29-3-1996, appellant sold a plot measuring 5520 sq.ft. to one Smt. Shashibala Agrawal in a block known as Block B, Plot No. 2. Appellant also issued a Pamphlet (Exh. P-24), indicating the purpose of establishing a colony and his intention to sell the plots. By bringing on record the documents as indicated hereinabove and by contending that defendant appellant herein is not executing the sale deed, in spite of the fact that he has got permission in, various other cases and by bringing on record the requisite map, lay out plan and other documents indicating development of the colony by the appellant, suit was filed for specific performance of the agreements (Exhs. P-1 to P-6). It was further pointed out in the plaint that on 16-8-95, appellant/defendant had moved an application for permission to sell 75% plots only, after development, but when thing was done and even though permission was granted to sell more than 38000 sq. ft. of land and when plots were being sold, plaintiffs filed the suit for specific performance.
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In the written statement filed, appellant herein raised the following objections:
(a) His first contention was that the agreements in question (Exhs. P-1 to P-6) are not agreements for sale, but are agreements for securing loan and are executed as a security for loan advanced by the plaintiffs to the defendant appellant. It was further his case that as he was unable to repay the loan, hence succumbing to the threat issued by the plaintiffs for filing a suit, he made the endorsements on 1-4-94, at the back of the agreements (Exhs. P-1 to P-6). Accordingly, it was the contention of the appellant hereinabove that the agreements in question are not agreements for sale at all.
(b) Objections were also raised with regard to delay in filing the suit and it was contended that the suit is barred by limitation.
(c) Finally, the third objection raised was that as the agreement is to sell the property for which permission from the Competent Authority of the State Government is required, no decree for specific performance can be issued, as it would amount to decreeing a suit for performance of an agreement, which is void in view of Sections 24 and 31 of the Adhiniyam of 1982.
Accordingly, contending that the suit could not be decreed, resistance was made by the appellant.
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The learned Court below on the basis of the pleadings of the parties framed eleven issues:
(i) The first issue was to the effect as to whether the defendant has entered into an agreement with the plaintiffs for sale of plots bearing Numbers 7 to 12, for a consideration of Rs. 40,800/- each, and each of the plaintiffs had paid Rs. 25,000/- on the date of execution of the agreements, i.e., 7-10-1987. On the basis of the material that came on record, this issue is answered in favour of the plaintiffs by holding that the agreement was executed.
(ii) The second issue framed was as to whether the defendant has agreed to execute the sale deed after obtaining permission from the Sub Divisional Officer, Burhanpur on or before 31-10-1987. This issue is also answered in the affirmative by holding it to be established.
(iii) The third issue framed was as to whether even after 31-10-1987, defendant was assuring the plaintiffs that he shall execute the sale deed. This issue is also answered by holding that the defendant was no assuring.
(iv) The fourth issue was with regard to endorsement made on the backside of the agreements (Exhs. P-1 to P-6), on 1-4-94, for execution of the sale deed within one month of receipt of permission. This issue is also answered in the affirmative by holding that such an endorsement was made.
(v) The fifth issue was to the effect as to whether the defendant was selling the plots to various other persons. It was found that the defendant was so doing.
(vi) Issue number six was to the effect as to whether the plaintiffs were willing to perforin their part of the agreement, by paying the remaining amount of consideration and getting the sale deed executed. The issue is answered by holding that the plaintiffs were willing to do so.
(vii) The seventh issue was to the effect as to whether the so-called agreements for sale, which are referred to as 'sauda chhitiyon par' was only a security for the loan received. The issue is answered against the defendant by holding that it was not an agreement by way of security for the loan advanced.
(viii) Issue number eight was as to whether the suit is barred by time. It is held that the suit is within time.
(ix) Issue number nine was with regard to breach of certain provisions of money lenders act. It is held that no such breach is established.
(x) Issue number ten was to the effect as to whether the agreement for sale executed on 7-10-1987 is void and cannot be specifically enforced in view of not obtaining permission from the Collector in accordance to the provisions of the Adhiniyam of 1982. The issue is answered by holding that the agreements are not void and it can be enforced.
(xi) Issue number eleven was with regard to relief and costs.
Evidence was led by the parties and on the basis of the...
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