1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR SECOND APPEAL NO. 99/2004 (Maroti Govinda Ghugul & ors. Vs. Sau. Panchaphula Mahadeo Rasekar) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. CORAM : Smt. Vasanti A. Naik, J. DATED : 10 th SEPTEMBER, 2008. Heard Smt. Thakre for the appellants, and Shri Sachin Deshpande for the respondent. The appellants are the original defendants. A suit was filed by the plaintiff for possession of the suit property. It was the case of the plaintiff that the plaintiff was the owner of the suit property and had agreed to sell the same to the defendants for a consideration of Rs. 39,000/- on 6/3/1992. The plaintiff had received an amount of Rs. 20,000/- from the defendants towards the earnest amount. The plaintiff had delivered the possession of the suit property to the defendants. The sale deed was to be executed on 20/5/1993 after accepting the balance amount of Rs. 19,000/-. As the field was falling in the category of Bhogwatdar Class II under the provisions of Section 29 of the Maharashtra Land Revenue Code, the 2 plaintiff had to obtain the permission of the Government before registration of the sale deed. It is the case of the plaintiff that she had applied to the S.D.O. Wani for permission to sell the suit property. However, the said case was decided against the plaintiff in January, 1995 as the Revenue Authority refused to grant permission to the plaintiff and the application thereafter preferred by the plaintiff before the Divisional Commissioner, Amravati, against the order of S.D.O., was also dismissed on 27/4/1995. In this background, it is the case of the plaintiff that the plaintiff was not able to fulfill the terms of the agreement dated 6/3/1992 and execute the sale deed in favour of the defendants as the permission was refused by the Revenue Authorities. Since the defendants refused to hand over the possession of the suit property to the plaintiff on acceptance of the earnest amount of Rs. 20,000/-, the plaintiff instituted the suit for possession. The defendants denied the case of the plaintiff and pleaded that they had made certain improvements in the field. According to the defendants, the possession of the defendants over the suit field was in part performance of contract. The defendants pleaded that they were ready and willing to perform their part of contract by paying the balance consideration and getting the sale deed 3 executed. The defendants claimed that their possession over the suit field was legal. The defendants also pleaded that the plaintiff did not deliberately obtain the permission from the Government to execute the sale deed. On the aforesaid pleadings of the parties, the trial Court framed the issues and after considering the evidence tendered by the parties on record, held that the plaintiff had succeeded in proving that she had validly cancelled the agreement of sale dated 6/3/1992 after the permission could not be obtained from the Revenue Authority. The Court held that the defendants had succeeded in proving the payment of earnest amount to the plaintiff. The trial Court held that since the plaintiff had applied for permission and it was rejected by the S.D.O. as well as the Divisional Commissioner, the contract became voidable and hence, the same was cancelled by the plaintiff as the same was contingent on the permission from the Revenue Authority to sell the property. The trial Court held that it became impossible for the plaintiff to obtain the permission from the Government in view of the rejection of the same by the S.D.O. and the Divisional Commissioner. In such a background, the trial Court held that the provisions of Section 53A of the Transfer of Property Act could not be 4 applied to the facts of the case and the defendants were not entitled for protection of their possession over the suit property. The trial Court, therefore, directed the defendants to deliver vacant possession of the suit field to the plaintiff on payment of Rs.20,000/- towards refund of earnest money. The findings recorded by the trial Court were confirmed by the first appellate Court. The first appellate Court also held that the provisions of Section 53A of the Transfer of Property Act are not attracted to the facts and circumstances of the case. I have heard the learned counsel for the parties and perused both the judgments in detail. In the facts and circumstances of the case, both the Courts rightly held that the provisions of Section 53A of the Transfer of Property Act could not have been applied and the defendants could not have sought protection of their possession over the suit property. The Courts rightly came to a conclusion that in the facts and circumstances of the case, it was not possible for the plaintiff to perform her part of the contract as the permission to sell the property was not granted by the Revenue Authorities. It is also necessary to note that though the plaintiff had produced the orders passed by the Sub Divisional Officer and the Divisional Commissioner, on the application for permission to sell the property, the 5 defendants did not do anything in the matter and had not challenged the orders passed by the Revenue Authorities. Since the findings recorded by both the Courts are pure findings of facts and do not give rise to any substantial question of law, the second appeal is dismissed with no order as to costs. JUDGE RMP