:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE SECOND APPEAL NO.587 OF 1991 SECOND APPEAL NO.587 OF 1991 SECOND APPEAL NO.587 OF 1991 Kondiram Krishnaji Kadam (Deceased by heirs) 1A. Suresh Kondiram Kadam, Age 41, R/o Pimpode, Tal: Koregaon 1B. Dharmaraj Kondiba Kadam, Age 33 R/o Pimpode, Tal: Koregaon 1C. Hirabai Kondiram Kadam, Age 75, Occupation:Household, R/o; Satara Road, Tal: Koregaon, 1D. Sou. Tarabai alias Akkatai Harichandra Roman, Age:40, R/o. Shivathar, Tal: Koregaon. 1E. Sou. Sushilabai Namdeo Bobade Age 40, R/o. Kapashi, Tal:Phaltan. 1F. Sou. Ratnamala Yeshwant Kotekar Age 44, Occ:Household, R/o.Shendre, Tal:Satara. 1H. Sou. Ranjana Sahebrao Gaikwad, Age Adult, R/o. Asangaon, Tal & Dist. Satara. 1J. Sou. Manda Hanumant Godase Age Adult R/o. Dolegaon, Tal. & ..Appellants Dist. Satara. (Org. Defts.) v. 1. Rajaram Bahiru Pisal, age 60 2. Ramdas Bahiru Pisal, Age 32, Occ: Agriculturist, R/o. Palashi, Tal: Koregaon, Dist. Satara. ...Respondents (Org.Plaintiffs) Ms.Anjali Helekar i/by S.M.Dharap , advs. for the Appellants. Mr.Raja S. Ghadge, , adv. for the Respondents. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. :2: DATE: 6th August, 2008. DATE: 6th August, 2008. DATE: 6th August, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. This is a second appeal filed by the legal heirs of the original defendant Kondiram Krishnaji Kadam against the dismissal of their regular civil appeal no.191 of 1987 against the decree of specific performance passed by the trial Court in regular civil suit no.111 of 1977 in favour of the plaintiffs. 2. Admittedly, the suit land bearing gat no.788 admeasuring 91 R situated at Pimpode Khurd, Taluka: Koregaon, District: Satara is the suit property. It belongs to the original defendant Kondiram. According to the plaintiffs/respondents, the defendant Kondiram had entered into an agreement with them on 8-7-1974 to sell the suit land to them for a consideration of Rs.5,000/-. Out of the consideration amount, he had already received an amount of Rs.1800/- about eight days before the agreement and an amount of Rs.1700/- was received at the time of execution and registration of agreement for sale. The balance amount of Rs.1500/- was to be paid at the time of execution of the sale deed. Agreement provided that for sale of the land, permission of the collector was required and the defendant would obtain the permission and within one month after obtaining permission, he would execute the sale deed. :3: It was also agreed that the possession of the land would be given at the time of execution of the sale deed. According to the plaintiffs, the defendant required further amount, and, therefore, the plaintiffs paid further amount of Rs.500/- to him on 18th October, 1974 and thus, the defendant had received an amount of Rs.4,000/-. According to them, the plaintiffs repeatedly asked the defendant to execute the sale deed by accepting the balance amount of Rs.1,000/- but he did not perform his part of the contract. Therefore, firstly, they issued notice and then filed the suit for specific performance of the contract. In alternative, to the decree for specific performance of the contract, the plaintiff prayed for refund of the amount of Rs.4,000/- with future interest. 3. The defendant Kondiram contested the suit by filing written statement Exhibit 12. According to him, there was no agreement for sale of land. He also contended that the suit land is Patil Inam land of Class 6B and it is non transferable and it is re-granted to the defendant on the condition of non-transferability. He contended that therefore, the agreement for sale is not executable in law. He further contended that he had approached the plaintiffs for loan of Rs.3,500/-. However, they insisted for execution of an agreement for sale as a security of loan. He also contended that out :4: of the loan amount of Rs.3,500/-, the actual amount of Rs.2,500/- was paid to him and the amount of Rs.500/- was adjusted towards the loan for agricultural operations done by the plaintiffs in the defendant’s land. Subsequently, on 18-10-1974, he received further amount of Rs.500/- and thus, he had received Rs.3,500/- and not Rs.4,000/-. He also contended that it was agreed that the plaintiffs would cultivate the land for two years and got its usufruct towards the satisfaction of the loan amount. According to him, during the year 1974-75, the suit land was put in possession of the plaintiffs. They had taken crop and thus, the loan amount has been duly satisfied. In view of this the plaintiffs are not entitled to decree for specific performance or refund of the amount. 4. In view of the pleadings of the parties, the trial Court framed certain issues and after hearing the evidence, passed the decree for specific performance of the contract in favour of the plaintiffs and it also directed that the plaintiffs shall make an application to the Collector seeking permission for transfer of the land. 5. Being aggrieved by the decree and the judgment passed by the trial Court, the legal heirs of the defendant, who had died during the pendency of the suit filed regular civil appeal 191 of 1987. The appeal was :5: also dismissed. Therefore, they have preferred the present second appeal. 6. The Second Appeal was admitted on following two grounds: g) Whether a decree for specific performance could be granted, when the relevant authority under the Law empowered to give or refuse permission to transfer land granted on impartible tenure, had refused permission to sell the same. k) The learned Judge ought to have considered the factor that the deceased father of the Appellants i.e. original Respondent had refunded an amount of Rs.1,800/- before the suit was filed and that this fact has been admitted by the Respondent i.e. the original plaintiff. 7. Heard the learned counsel for the Parties. Perused the evidence led by the parties and the judgments rendered by both the Courts below. On perusal of the evidence led by the parties, it appears that there was some inconsistency in the evidence of the plaintiffs about the payment of consideration amount. As per the contents of the agreement for sale Exhibit 49 out of the total consideration amount of Rs.5,000/-, the defendant had received an amount of Rs.1800/- about eight days before the execution of this agreement and an amount of Rs.1700/- was to be paid and was infact paid before the Sub-Registrar at the time of execution and registration of the agreement for sale and the balance :6: amount of Rs.1500/- was to be paid at the time of execution of the sale deed. P.W.1 Rajaram, who is the plaintiff no.1, deposed that he had paid whole of the amount of Rs.3,500/- at the time of execution of the agreement for sale. Even P.W.2 Ramdas, who is the plaintiff no.2, deposed that at the time of execution of agreement, he had paid Rs.3,500/- in cash. In the cross-examination when P.W.1 Rajaram was confronted with the contents of the agreement, he deposed that he could not show as to why in the agreement, it was mentioned that only an amount of Rs.1700/- was paid on the date of agreement. He also could not explain in the cross-examination why in the agreement, there was mention of payment of Rs.1700/- only on the date of agreement and not Rs.3,500/-. However, he tried to state that an amount of Rs.1,800/- was paid on the previous day, i.e., one day before the agreement but again he could not explain why in the agreement there was no mention that the amount of Rs.1800/- was paid on the previous day. It is to be noted that at the time of recording evidence, the original defendant had died and, therefore, his evidence could not be recorded. It is material to note that in the cross-examination P.W.1 Rajaram admitted that after agreement for sale, Kondiram had returned an amount of Rs.1800/- to him, which he had given to him on the previous day. It means that out of the amount of Rs.3,500/-, the plaintiff Rajaram had received back the amount of Rs.1800/-. It is material :7: to note that the evidence was recorded on 8-12-1986, i.e. almost 12 years after the agreement. Therefore, there is a possibility that this witness might have been confused about the dates of the payment or repayment of the amount but material fact is that he had received back Rs.1800/- from the defendant Kondiram and there is no explanation from the plaintiffs as to why that amount was repaid. 8. It is admitted fact that the it was Patil Inam land and it was re-granted to the defendant as per the provisions of Section 5(2) of the Bombay Service Inams (Useful to Community) Abolition Act, 1953, Section 5(3) provides that the occupancy of the land re-granted under subsection (2) shall not be transferable or partible by metes and bounds without the previous sanction of the Collector and except on payment of such amount as the State Government may by general or special order determine. From this, it is clear that the ban on the transfer or partition is not absolute, but conditional. The land so re-granted may be transferred with previous sanction from the Collector and that too on payment of certain amount as may be determined by the Government by general or special order. However, such Inam land cannot be transferred unless permission is granted by the Collector. Admittedly, even as per the terms of the agreement, the defendant was to obtain permission from the collector for sale of the land. It is material to :8: note that the D.W.1 Suresh, son of the deceased defendant, admitted that his father could not get the permission. The Courts below have noted that the learned advocate for the defendant had applied for summons to call the record from S.D.O. to prove that Kondiram had applied for permission for sale of the land. However, in spite of summons, that record could not be made available. In view of this conduct, the Courts below noted that the parties had infact entered into an agreement for sale and that is why the defendant Kondiram had applied for permission for sale though it was not granted. Taking into consideration the admission of Suresh and the conduct of his advocate the Courts below rightly come to conclusion that there was an agreement for sale. If there would be no agreement for sale, Kondiram would not have applied for permission. This falsifies the plea of the loan transaction. 9. Both the Courts below in view of these circumstances, felt that the decree for specific performance could be granted. However, it appears that both the Courts below lost the sight of last paragraph of the agreement for sale wherein it is clearly mentioned that if the vendor could not get permission, he would refund the amount in the month of ’Chaitra’ and the agreement for sale would stand cancelled. If the defendant had infact applied and he could not get the :9: permission, as per the terms of the contract itself, this agreement for sale was to be cancelled and therefore, the plaintiffs could not get decree for specific performance but only for refund of the amount. It is also material to note that the trial Court while granting decree for specific performance had directed the plaintiffs to make an application to the Collector for permission and the learned Appellate Court noted that the plaintiffs had applied but that permission was refused by the Collector on the technical ground that such permission could be sought only by the vendor and not by the purchaser. Anyhow, the circumstances reveal that firstly, the defendant himself applied and permission was not granted and thereafter, the plaintiffs applied for permission and that was not granted. If the permission was not granted for sale of land in view of the provisions of Section 5(3) of the Bombay Service Inams (Useful to Community) Abolition Act, 1953, sale deed could not be executed by the defendant in favour of the plaintiffs. 10. Taking into consideration the facts and circumstances noted above, it must be held that there was an agreement for sale and the defendant had received an amount of Rs.3,500/- as stated in the agreement for sale dated 8-7-1974 and further amount of Rs.500/- on 18-10-1974 out of the total consideration of Rs.5,000/-. Thus, there was an agreement for sale. However, he :10: could not obtain permission from the collector. In this context, admission of the plaintiff no.1 Rajaram that he had received back an amount of Rs.1800/- has to be considered, otherwise, there was no reason for him to receive back the amount of Rs.1800/- from Kondiram. Some how, both the parties did not come before the Court with clean hands and they have given twist to the facts in their own way. The trial Court noted that stray admission by the plaintiff no.1 about the receipt of Rs.1800/- could not be given much importance which was not proper. Thus, the plaintiffs had received back an amount of Rs.1800/- from him. This was clearly as per the terms of the agreement which provides that if the permission could not be obtained, the defendant would refund the amount received by him. In view of this, the plaintiffs could only ask for refund of the balance consideration amount and could not claim decree for specific performance of the contract. Both the Courts below committed error in granting decree for specific performance of the contract ignoring these vital facts. It is to be noted that according to the defendant, whole of the amount was satisfied because plaintiffs had taken yield of the crop but there is no satisfactory evidence about it. The learned counsel for the defendants/appellants made a statement that the defendants are willing to re-pay the balance amount of consideration with interest thereon from the date of the suit. :11: 11. In view of the above circumstances, appeal is allowed. The judgments passed by both the Courts below are set aside. Decree passed in favour of the plaintiffs is also set aside. However, the legal heirs of the defendant/appellants are hereby directed to refund the balance amount of Rs.2,200/- to the plaintiff with interest at the rate of 8% p.a. from the date of the suit till this date and further interest at the rate of 6% p.a. from this date till the realisation of amount. The learned counsel for the defendants/appellants seeks three months time to repay the amount. The amount shall be deposited before the trial Court within three months from this date and if the amount is deposited, plaintiffs shall be allowed to withdraw that amount. Decree be drawn up accordingly. The plaintiffs have also deposited Rs.1,000/- before the trial Court towards the payment of balance consideration. The plaintiffs shall be allowed to withdraw that amount also. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)