-1- GPN-J-2459-ARHCBN-3-04-1,00,000-ALA4* [Spl.-H.C.,A.S.,C.D.79e. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. SECOND APPEAL NO. 4/2009 Ajheralikha Mukaddaralikha and another -versus- Supda Datuji Dange and others ----------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram appearances, Court's orders or Directions Court's or Judge's Orders. And Registrar's Orders. ----------------------------------------------------------------------------------------------------------------------------------- CORAM : B.P.DHARMADHIKARI, J. DATED : JANUARY 15, 2009. Heard Advocate Shri S.Z. Qazi, for appellants/original defendants and Advocate Shri B.S. Deshpande, for respondent no.1. Challenge is to concurrent judgment and decrees delivered by the Courts below, decreeing the suit for specific performance filed by the present respondent no.1. Advocate Shri Qazi, has contended that the present appellant no.2 / original defendant no.2 has not signed the agreement for sale of which specific performance was sought. The Lower Appellate Court has found that at the relevant time defendant no.2 was not available, but after the said agreement on 1.10.1988 notice was given by all the defendants including the defendant no.1 to plaintiff for specific -2- performance. The Lower Appellate Court therefore, has found that absence of signature of defendant no.1 on said agreement was not very material. Second contention of Advocate Shri Qazi, is that after notice dated 1.10.1988 there was a meeting dated 11.10.1988 and in that meeting according to the respondent / plaintiff time was extended. He contends that said meeting has not been established and Haribhau Pandav, who was alleged to be present in the meeting has not been examined. It is to be noted that the agreement is for sale of immovable property and courts have found that time was not essence of contract. The Courts have also found that the plaintiff had prepared himself fully for obtain sale deed on 30.04.1990. In view of these findings it is apparent that even if the prayer for time in meeting held on 11.10.1988 is accepted, the consideration by the court below is not materially affected and the Courts have found that the plaintiff was ready and willing, and that finding is neither erroneous nor perverse. Lastly, Advocate Shri Qazi, has pointed out that as per provisions of Section 12 of the Maharashtra Project Affected Persons Rehabilitation Act, 1999 sale of land is not permitted till the Collector makes a declaration that no further land in -3- benefited zone in any particular village or area therefrom is required. Advocate Shri Deshpande, points out that the contention in this respect was raised at the stage of final arguments before the trial Court and there was no pleading or evidence. He points out that the land is situated at a village which is far away from the Purna River and therefore, provisions under section 12 cannot apply to it. He has invited attention to the consideration of this aspect in paragraph no.27 of the judgment by the Trial Court. The consideration in paragraph no.27 clearly show that there was no plea in this respect and also there was no evidence. The further consideration of this aspect is upon its own knowledge by the Trial Court and that consideration is totally unwarranted. The above referred Maharashtra Project Affected Persons Rehabilitation Act, 1999 contemplates land in affected and benefit zone and under the benefited zone the land need not to be situated near the river. It is to be noted that the prohibition contained in section 12 is in public interest and the Executing Court may take note of it and find out whether the execution of sale deed is possible or not. The same cannot be a reason for interfering with the judgments delivered by the Courts below. -4- No substantial question of law therefore arise for determination in this Appeal. Second Appeal is thus dismissed. No cost. JUDGE Rgd.