( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 143 OF 1990 Babu Shantwan Kakade APPELLANT VERSUS 1. Rama Yedu Bade 2. Zumber Shahu Kakade RESPONDENTS WITH SECOND APPEAL NO. 144 OF 1990 Babu Shantwan Kakade APPELLANT VERSUS Rama Yedu Bade RESPONDENT ..... Mr. V.J. Dixit, Senior Advocate for the appellant in both appeals. Smt. Lata Bade, advocate for respondent No. 1 in both appeals. None for respondent No. 2 in Second Appeal No. 143/1990. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE OF JUDGEMENT RESERVED : 17th July, 2009] [DATE OF JUDGEMENT PRONOUNCED : 31st July, 2009] ( 2 ) JUDGEMENT : 1. These two (2) appeals arise out of one set of concurrent judgements, one rendered by the learned Civil Judge (J.D.), Newasa in suit (R.C.S. No. 310/1981) and judgement rendered by the learned Additional District Judge, Ahmednagar, in appeal (R.C.A. No. 456/1984) and another set of two concurrent judgements, one rendered by learned Civil Judge (J.D.), Newasa in suit bearing R.C.S. No. 177/1983 and by the learned Additional District Judge, Ahmednagar in appeal (R.C.A. No. 453/1984). 2. For the sake of convenience, I shall refer to original parties by their names for the purpose of clarity. Originally, Babu Kakade filed Regular Civil Suit No. 310/1981 for declaration of ownership and possession of land bearing Gat No. 1375 to the extent of 1 hectare 29 Ares situated at Newasa. This land may be referred hereinafter as “the suit land”. He sought declaration that an agreement of sale dated 15th March, 1973 executed by him in favour of defendant No. 1 – Rama ( 3 ) Bade was void ab initio because it was not executed by him after giving full thought and on his volition. He also sought declaration that defendant No. 1 Rama Bade was not entitled to continue his possession and to obtain relief of specific performance in pursuance to the said agreement of sale. He further sought recovery of possession of the suit land from defendant No. 1 Rama Bade and also of a part of the same from defendant No.2 Zumber Kakade alleging that the latter was in possession of a portion consisting of 2 acres 6 guntha. It was alleged that defendant No.2 Zumber Kakade had illegally entered into possession of 1 acre 3 gunthas land without any lawful authority. The suit of Babu Kakade was dismissed. He preferred appeal which came to be dismissed. 3. Rama Bade filed suit bearing R.C.S. No. 177/1983 for specific performance of the agreement of sale dated 15th January, 1973. The suit was decreed. Feeling aggrieved, Babu Kakade preferred appeal bearing R.C.A. No. 453/1984 which came to be dismissed. ( 4 ) 4. The pleadings of the contesting parties in both the suits are similar. In order to avoid repetitions, I shall first spell out case put forth by Babu Kakade in his suit which also was his defence in the counter suit. Briefly stated, his case is that the suit land is Hadola Inam Watan land of new tenure. The sale permission was required for transfer of the land as it was required to be converted into old tenure. It was agreed by Rama Bade that he would obtain necessary permission for conversion of the suit land into old tenure land. The consideration was settled at Rs. 6000/- as per the agreement of sale dated 15-01-1973. Rama Bade paid earnest money of Rs. 4500/- and agreed to pay remaining consideration of Rs. 1500/- after necessary sale permission was received. Though such agreement was entered into, yet, Babu Kakade was not aware of the real market price of the suit land at the relevant time. Rama Bade got the agreement of sale executed for palpably low price of Rs. 6000/- by playing fraud. The agreement of sale was, therefore, not binding on him as the same is vitiated due to fraud. The further contention put forth by Babu Kakade was that no steps ( 5 ) were taken by Rama Bade to obtain necessary permission to convert the inferior watan land as old tenure land so as to make it partiable. Nor, the terms of the agreement were duly complied with by him. Consequently, the agreement of sale is not binding on him as it is vitiated by fraud and, therefore, he sought declarations as well as possession of the suit land. According to Rama Bade, he was always ready and willing to perform his part of the agreement of sale. He was delivered possession of the suit land in pursuance to the agreement of sale dated 15th January, 1973 and is in possession thereof in exercise of right of part performance. He was not under obligation to secure permission for conversion of the suit land to old tenure land so as to make it partiable property. He was entitled to claim specific performance of the agreement of sale in as much as he came to know about refusal of Babu Kakade to perform the terms of the agreement when the suit (R.C.S. No. 310/1981) was filed. So, by way of separate suit, he claimed specific performance of the agreement of sale. ( 6 ) 5. Zumber Kakade, who is the defendant No. 2 in suit bearing R.C.S. No. 310/1981, contended that he was in lawful possession of 1 acre 2 gunthas of land out of the suit land since 1970. 6. Both the Courts below held that the entire suit land is in possession of Rama Bade and no part thereof was in possession of said Zumber Kakade (defendant No. 2). 7. The parties adduced evidence on issues settled by the trial Court in both the suits. The concurrent findings rendered by both the Courts below in the two (2) suits are : (i) that, Babu Kakade utterly failed to prove that the agreement of sale dated 15th January, 1973 was outcome of fraud played on him and is, therefore, void; (ii) that, Babu Kakade committed breach of the terms of the agreement of sale; (iii) that, Rama Bade was in possession of the entire suit land in pursuance to the agreement of sale dated ( 7 ) 15th January, 1973; (iv) that, Rama Bade was always ready and willing to perform his part of the agreement and that Babu Kakade was under obligation to obtain the necessary permission for conversion of the suit land from new tenure to the old tenure land so as to make it transferable; and (v) that, Zumber Kakade was not in possession of 1 acre 3 gunthas land or any part of the suit land. In keeping with the above findings of facts, the suit filed by Babu Kakade was dismissed and the decree of dismissal was upheld by the first Appellate Court whereas the suit filed by Rama Bade was decreed and the said decree is upheld by the first Appellate Court. 7. Feeling aggrieved by both sets of concurrent judgements and decrees mentioned above, Babu Kakade preferred these two (2) appeals. 8. Heard learned counsel for the parties. 9. Before I proceed to consider merits in the ( 8 ) context of these appeals, it may be mentioned that no substantial question of law was formulated when the appeals were admitted by this Court. The then Hon’ble Judge (Halbe, J.) passed single word order as follows : “Admit” 10. There is difficulty, therefore, in considering these appeals for want of substantial questions of law. The additional substantial questions of law can be framed in view of sub-section (5) of section 100 of the Civil Procedure Code only when already some substantial question of law is formulated at the time of admission of the appeal. In order to curtail length of the litigation, I deem it proper to proceed with the appeals on assumption that the following substantial questions of law are involved in these appeals. (i) Whether, in the facts and circumstances of the present case, the first Appellate Court committed patent error while holding that the appellant (Babu Kakade) was under obligation to ( 9 ) seek permission for conversion of the new tenure land to old tenure land and it ought to have been held that respondent Rama Bade committed breach of the terms of the agreement ? (ii) Whether, in the facts and circumstances of the present case, the Courts below committed patent error while exercising discretion available under section 20 and, particularly, due to absence of specific pleadings as required under section 16 (c) of the Specific Relief Act? (iii) Whether, in the facts and circumstances of the present case, it was patent error committed by both the Courts below to hold that the agreement of sale was not unfair and was not outcome of fraud played on Babu Kakade ? (iv) Whether the suit for specific performance of contract was barred by limitation and, therefore, should have been dismissed ? ( 10 ) 11. Before I advert to the submissions of the learned counsel, it is pertinent to note that the suit land is inferior watan land. It is undisputed that Babu Kakade owned the said land. It is an admitted fact that he executed the agreement of sale dated 15-02-1973 in favour of Rama Bade whereby it was agreed that the suit land would be sold for consideration of Rs. 6000/-. There is also no dispute about the fact that Rama Bade paid earnest money of Rs. 4500/- at the time of execution of the agreement of sale. Thus, only a small part of the consideration amount had remained unpaid. It is pertinent to note that though sale permission was required for transfer of the suit land under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act at the relevant time, yet, in the year 1977, the legal embargo was removed. No such sale permission was, therefore, required after 1977. The only permission required to be obtained was to convert the suit land from new tenure to old tenure for the purpose of its partiability. ( 11 ) 12. Though it was contended that the market price of the suit land was much more at the time of execution of the agreement of sale, yet, Babu Kakade utterly failed to establish such averment. Except his vague and bare words, there is no iota of evidence on record to show that the agreed price was palpably low or inadequate. The pleadings stated in the plaint of suit bearing R.CS. No. 310/1981 are totally insufficient to make out any case of fraud or undue influence. What was alleged by Babu Kakade is that he was not given opportunity to think over about terms of the agreement and decide whether the price of the land was reasonable. He vaguely stated before the Court that the agreement was got executed from him by cheating. No specific act of so called cheating was spelt out by him. The pleadings of Babu Kakade regarding so called fraud are insufficient. A vague statement that he was not given sufficient time to think over about the market price of the suit land is of no avail. 13. What emerges from the record is that conduct of Babu Kakade was unfair. He asserted that only part of ( 12 ) the suit land is delivered in possession of Rama Bade, to the extent of 2 acres 6 gunthas whereas 1 acre 2 gunthas land was handed over to original defendant No. 2 Zumber Kakade. The trial Court and the first Appellate Court noticed that he and said Zumber Kakade were in collusion with each other. During cross-examination, original defendant No. 2 Zumber Kakade admitted that he gave application for intervening in the suit at instance of Babu Kakade. Both the Courts held that there was no reliable evidence to show that Zumber Kakade was in actual possession of the land to the extent of 1 acre 2 gunthas area. The possession receipt (Exh-111) indicated that the possession of entire suit land was delivered to Rama Bade in pursuance to the agreement of sale. Needless to say, it is duly proved that Babu Kakade delivered possession of the suit land to Rama Bade in pursuance to the terms of agreement of sale after receiving major chunk of the agreed amount of consideration. 14. The main thrust of the argument advanced by learned Senior Counsel Mr. Dixit is on question of ( 13 ) readiness and willingness of Rama Bade to perform his part of the agreement. Mr. Dixit would submit that the suit for specific performance should not have been decreed when pleadings of Rama Bade were not clear and proper within the meaning of section 16 (c) of the Specific Relief Act, 1963. He would submit that the relief of specific performance was sought after about ten (10) years and, therefore, ought to have been held as barred by limitation. He contended that necessary ingredients of section 53A of the Transfer of Property Act, 1882 were also not made out by Rama Bade and hence, he was not entitled to any protection. 15. So far as question of readiness and willingness is concerned, it may be stated that no such issue was framed by the trial Court in suit bearing R.C.S. No. 177/1983. The pleadings of plaintiff – Rama Bade in that suit would show that he stated that Babu Kakade avoided to perform his part of the agreement. He further pleaded that he was ready to perform his part according to the terms of the agreement. Ofcourse, the pleadings are not happily worded. It is stated : ( 14 ) “ (The plaintiff though was ready to perform as per the terms of the agreement and was discharging his responsibility in pursuance to the agreement, yet, the defendant was not performing his part). 16. In his statement before the Court, Rama Bade categorically deposed that he was ready and willing to pay remaining consideration of Rs. 1500/- and to get the sale-deed executed. He stated that it was only because Babu Kakade was not ready to obtain necessary permission, he was required to file suit for specific performance. In other words, there is material compliance of the provisions of the provisions of section 16 (c) of the Specific Relief Act, 1963. That apart, it is significant to note that Babu Kakade did not urge before the trial Court to frame issue in the ( 15 ) context of non-compliance of section 16 (c) of the Specific Relief Act, 1963. No such ground was raised in the appeal memo before the first Appellate Court. Not only that, but in the appeal memo filed in this second appeal too, I do not find any such specific ground raised by Babu Kakade so as to challenge the decree for specific performance of the agreement of sale in the context of Second Appeal No. 144/1990. In the absence of any such ground of appeal, I find it difficult to entertain the argument in this behalf. It may be mentioned here that the learned Counsel referred to following case-law : (i) Syed Dastagir v. T.R. Gopalakrishna Setty (1999) 6 S.C.C. 337; (ii) Umabai and another v. Nilkanth Dhondiba Chavan (Dead) by L.Rs. and another 2005 (4) Mh.L.J. 306 (iii) Manjunath Anandappa Urf Shivappa Hansi v. Tammanasa and others (AIR 2003 S.C. 1391) (iv) H.P. Pyarejan v. Dasappa (Dead) by L.Rs. And others 2006 (3) Mh.L.J. 312 ( 16 ) I do not find it necessary to discuss the above authorities in view of absence of specific ground raised in the appeal memo and the circumstances noticed hereinbefore. 17. The trial Court and the first Appellate Court noticed that Babu Kakade received substantial part of the consideration amount and yet, attempted to take undue advantage of the fact that the land was not converted into old tenure. It has been rightly observed that he could not be permitted to take advantage of his own wrong. The agreement could not be declared as illegal and void at instance of Babu Kakade. His allegations in the suit (R.C.S. No. 310/1981) have been found to be malafide and rightly so. 18. Mr. Dixit, learned Senior Counsel, would submit that the suit for specific performance was barred by limitation. The agreement in question was executed on 15th January, 1973 and the suit was filed on 17-09-1983. It may prima facie appear that the suit is barred by ( 17 ) limitation. One cannot be oblivious of the fact, however, that the limitation would commence after refusal of the party to perform his part of the agreement. In the present case, Rama Bade was in actual possession of the suit land. He expressed his willingness to perform his part of the agreement by making substantial payment of the earnest amount. The necessary permission for conversion of the land from new tenure to old tenure was not obtained by Babu Kakade. The evidence tendered by Rama Bade revealed that Babu Kakade put off performance of the agreement of sale to the extent of his part. It is pertinent to note that Babu Kakade filed suit bearing R.C.S. No. 310/1981 on 14-10-1981. So, Rama Bade received notice of implied refusal of Babu Kakade in the year 1981. The suit for specific performance was filed within period of three (3) years after receipt of the notice of said suit filed by Babu Kakade. Consequently, it is within limitation in view of Article 54 of the Limitation Act. 19. The oral evidence of the parties comprised of oath against oath. The learned District Judge duly ( 18 ) appreciated the evidence on record while granting decree for the specific performance. The evidence on record is sufficient to conclude that Babu Kakade committed the breach of the agreement of sale. The possession of Rama Bade could be referred to the agreement of sale. Mr. Dixit invited my attention to the observations in following cases : (i) Mahadeo Nathuji Patil v. Surjabai Khushalchand Lakkad and others (1994 Mh.L.J. 1145) (ii) Shrimant Shamrao Suryavanshi and another v. Pralhad Bhairoba Suryavanshi (dead) by Lrs. and others. (AIR 2002 S.C. 960) (iii) Adinath Limbaji Navale and others v. Policeman Housing Society, Beed and others 2007 (6) Mh.L.J. 781 20. The settled legal position is that where the vendee is inducted in possession of immovable property in pursuance to the agreement of sale, he can claim protection under section 53A of the Transfer of Property Act against the vendor or anyone claiming through him though the contract may not be enforceable due to lapse ( 19 ) of the limitation period. As stated earlier, in the present case, the suit for specific performance of the agreement was filed within limitation from date of refusal by Babu Kakade to perform his part of the agreement. Hence, it is not necessary to consider whether Rama Bade is entitled to protection under section 53A of the Transfer of Property Act. It is also argued that due to intervening developments, the land itself is not available for the purpose of transfer. This aspect need not be considered at the stage of present second appeals in as much as it would be the subject matter which may be considered by the executing Court. Moreover, it is the sweet will of the successful party i.e. Rama Bade to obtain execution of the decree or to accept the reality which is outcome of the subsequent developments. The subsequent development is that the revenue authorities have decided to resume the land in proceedings No. 54/1985 due to transfer of the land without proper sanction. 21. For the reasons aforestated, I have no hesitation in holding that both the appeals are without ( 20 ) merits. Hence, the appeals are dismissed with costs. [ V.R. KINGAONKAR ] JUDGE NPJ/SA143-144-90