1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 295 OF 1987 1. Vasant Baburao Deshmukh Aged about 37 years, Occ: Agriculturist, R/o. Vadgaon, Badruk, Taluka Haveli, Dist.Pune. 2. Sudam Eknath Charwat, Aged about 45 years,Occ: Agriculturist, R/o. Asabove. ..Appellants (Orig.Plaintiiffs) Vs. 1. Sudam Gangaram Dangat 2. Ghansham Gangaram Dangat 3. Keshav Gangaam Dangat 4. Daulat Gangaram Dangat since deceased: by hiis heirs & Legal representatives: 4A) Smt. Umabai Daulat Dangat Wife aged about 48 years Occ: Agriclture. 4B) Ranjeet Daulat Dangat Son aged about 29 years. Occ: Agriculturist. 4C) Jaysingh Daulat Dangat Son aged about 25 years, Occ:Agriculture. 4D) Miss Ragini Daulat Dangar, daughter, aged 26 years, Occ:Agriculture. (Name of R.R-D deleted) All are residing at Vadgaon, 2 Taluka Haveli,Dist. Pune. 5. Smt. Laxmibai Gangaram Dangat 6. Sou. Savitribai Vasant. 7. Sou. Anjali Bajirao Ghule Respondent Nos. 1 to 5 residing at Vadgaon, Budruk, Tal.Haveli, Dist. Pune. ...Respondents (Orig. Defendants) Mr.N.M.Sakhardande i/b. S.G.Page, Advocate, for the appellants. Mr.Nitin Muley i/b. G.S.Godbole,Advocate for the respondent No.6. CORAM: J.H.BHATIA,J. DATE: 4th August, 2009. JUDGMENT: 1. After the death of the original defendant/respondent No.4 – Daulat Gangaram Dangat, his wife, two sons and a daughter were brought on record as respondents Nos. 4A, 4B, 4C and 4D respectively. His daughter respondent No. 4d also died and appellant No.2 had filed an affidavit dated 30.4.2009 and stated that after enquiry and to the best of his knowledge, there are no heirs or legal representatives of the deceased-defendant 4D. The learned Counsel for the appellant makes a statement that additional affidavit has been filed by Sudam Eknath Charwat. that the respondents Nos. 4A to 4C are the persons who are also legal heirs of respondent No.4D. In view of the facts and circumstances, 3 the respondent No.4D is properly represented and the appeal shall proceed against the remaining respondents. 2. The original plaintiffs have preferred this Appeal. The Appeal was admitted on the following substantial question of law :- “A neat and substantial question of law is as to whether the two plaintiffs who entered into agreement to purchase the suit land were not justified in insisting that permission be applied for both the plaintiffs. It appears that permission was applied for sale in favour of only one plaintiff and a stranger.” 3. The admitted facts are that the plaintiffs/appellants had entered into an agreement with the defendant Nos. 1 to 4 on 18.1.1977 whereby the said defendants had agreed to sell 3 acres of land out of Survey no.44 situate at Vadgaon, Taluka Haveli, District Pune for consideration of Rs.32,500/-. The amount of Rs.15,000/- was paid by the plaintiff to the defendants as earnest money and possession of 3 acres of land was given to them. The land had come to the father of the defendants under the provisions of section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 and therefore, it was 4 necessary to obtain prior permission from the Collector to sell the said land to anybody. An application was made to the Collector for permission to sell the land. The Collector issued an order granting permission on 19.9.1978 which reveals that the permission was granted to the defendants to sell six acres of land to the plaintiff No.2 – Sudam and one Mahadev Ramchandra Mahadik. Admittedly, Mahadev Ramchandra Mahadik was not party to this contract. He had a separate contract with the defendants in respect of 3 acres of land out of the same survey number. The learned counsel for the respondent/defendants makes a statement that the said Mahadev Mahadik had actually got the sale deed executed in respect of 3 acres of land on the basis of that permission. However, as the permission was not granted by the Collector in the name of the plaintiff Nos. 1 and 2 both to purchase 3 acres of land as per the said agreement, the plaintiffs did not get the sale deed executed on the basis of that permission. According to the plaintiffs, they were in possession of the suit land, which was to be purchased for the purpose of quarrying and they had also obtained necessary permit for the purpose of quarrying operations. On the daye of Dasera 1980 when they went to the land to start quarrying operation again, for that season, the defendants obstructed. Thereafter the plaintiff issued a notice to them and finally filed the suit on 13.11.1980 for specific performance of the contract. 5 4. The suit was contested on the ground that the plaintiffs themselves were not ready and willing to perform their part of the contract and therefore, the decree could not be passed. The trial Court dismissed the suit holding that the plaintiffs had failed to prove that they were ready and willing to perform their part of the contract and also that the defendants had committed breach of the conditions of the agreement. The trial Court also held that the suit is barred by limitation. The plaintiffs preferred Regular Civil Appeal No.431 of 1984. The appellate Court found that the suit was within limitation, but the appellate Court concurred with the trial Court that the plaintiffs had failed to prove that the defendants had committed any breach of the contract. In the result, the Appeal also came to be dismissed. Hence, the Second Appeal. 5. Heard the learned Counsel for the parties. The learned Counsel have taken me through the judgments of both the Courts below as well as relevant documentary and oral evidence. 6. There is no dispute that the agreement for sale had taken place between the plaintiff Nos.1 and 2 on the one hand and the defendants Nos. 1 to 4 on the other. As per the agreement, amount of Rs.15,000/- was paid by the 6 plaintiffs to the defendants. The plaintiffs were also put in possession of the land which was to be used for the purpose of quarrying. The evidence on record reveals that the plaintiffs and defendant No.1 had jointly made an application for permission. Copy of that application, which was submitted to the Collector. is not available with any of the parties. The parties relied on the order dated 19.9.1978 passed by the Assistant Collector granting permission. As pointed out earlier, the permission was granted to the defendant Nos. 1 to 4 to sell six acres of land to plaintiff No.2 and one Mahadev Ramchandra Mahadik. We are not concerned with the contract which had taken place between Mahadev and defendants. It appears that plaintiff nos. 1 and 2 had agreed to jointly purchase 3 acres of land for the business of quarrying. As the permission was granted only in favour of the plaintiff No.2 the plaintiff Nos. 1 and 2 found it difficult to get sale deed executed in their joint names, it would be in violation of the permission as far as plaintiff No.1 is concerned. The plaintiff No.2 could not have got the sale deed executed in his name alone as it would be against the contract. In fact it appears that some mistake was committed either in making the application or in passing the order by the Collector while granting permission. It is admitted in the evidence on behalf of the plaintiffs that after the said permission was granted, the defendants had shown that permission to the plaintiffs and had offered to execute the sale deed, but the plaintiffs reused 7 to get the sale deed executed. It may be because of the reasons stated above. Admittedly, the plaintiffs never asked the defendants to get that permission corrected nor they themselves moved the Collector to get that order or permission corrected. In view of the circumstances, the Courts below came to conclusion that the plaintiffs themselves were not ready and willing to perform their part of the contract inspite of their pleadings to that effect. There can be no dispute that both the plaintiffs were justified in insisting that permission be obtained in the names of both the plaintiffs. However, the fact remains that immediately after the permission was obtained, same was shown to the plaintiffs but the plaintiffs did not take any steps either to approach the Collector to get it corrected nor they asked the defendants to get it corrected. If they would have orally requested the defendants and if the defendants would not be willing to approach the Collector again, they could have issued notice to the defendants to that effect and asked them to move the Collector for modification of the order, but no such steps were taken. Therefore, this indicates that inspite of the agreement between the parties and inspite of the permission granted by the Collector because of the defect in the permission, the sale deed could not be executed and the plaintiffs failed to take any steps in the right direction in getting that permission order corrected. There is nothing on record to show that they had pointed out to the defendants that such a mistake was there and 8 because of that mistake they could not get the sale deed executed as per the contract. Therefore, it cannot be said that the defendants had committed breach of any terms of the contract. The plaintiffs simply refused to get the sale deed executed inspite of offer made by defendants. Therefore no fault can be found in the concurrent finding of fact that the plaintiffs were not ready and willing to perform their part of the contract. 7. The learned Counsel for the appellant contended that when the plaintiffs had paid Rs.15,000/- as earnest money, the Court could have granted conditional decree for specific performance of the contract so that the necessary permission could be obtained from the Collector and the sale deed could be executed. He relied upon Nirmala Anand vs. Advent Corporation (P) Ltd. & Ors. (2002) 5 SCC 481. That was a case in respect of a flat situated in Mumbai. In view of the specific terms of the contract and circumstances, conditional leave was granted by the Supreme Court. However, in the present case, plaintiffs admittedly refused to get sale executed and also took no steps to get permission corrected. The land was used for quarrying and the plaintiffs admitted in the cross-examination that from 1977 to 1980,they had quarried and they had made huge profit of Rs.40,000/- to Rs.50,000/- out of the same. Thus, the plaintiffs have been reasonably compensated not only about the 9 principal amount, but had also made some profit on the same. It cannot be lost sight of the fact that the prices of immovable properties have skyrocketed during the last 30 to 40 years. The agreement in the present case took place in 1977. The property is situated at short distance from Pune Municipal Corporation and though at that time it was useful only for the purpose of quarrying, now it may be used for other non-agricultural purpose and therefore, the value of the property at present cannot be compared with the value of the property then prevailing. Therefore, in my considered opinion, after 32 years, it will not be equitable to grant a decree for specific performance and that too subject to certain permission to be obtained. Decree for specific performance is discretionary in nature and both the Courts below used the discretion against the plaintiffs. Taking into consideration the circumstances, I do not find any justification to take a different view. 8. In view of the facts and circumstances, the Appeal stands dismissed. However, the parties shall bear their own costs throughout. (J.H.BHATIA,J.)