IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA. No. 442 of 2000. Date of Decision:3.5.2011. _______________________________________________ Moti Ram ….Appellant. Versus. M/s Uttam Sucrotech (P) Ltd. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?. Yes. For the appellant :Mr. K.D.Sood, Advocate. For Respondent. :Mr. Arjun Lall, Advocate Dev Darshan Sud, J.(Oral). This appeal has been preferred by the appellant against the judgment and decree of the learned District Judge, Kullu dismissing the appeal preferred by the appellant herein against the judgment and decree of the learned trial Court. 2. The plaintiff had filed a suit for possession of the land on the basis of title. It was pleaded that he was the owner in possession of land compromised in Khasra No. 1601, khata khatauni No. 619/901 measuring 3-7-0 bighas situated in Phati Balh, Kothi Maharaja Tehsil and District Ghaziabad of Uttar Pradesh. It was pleaded that the defendant is a resident of District Ghaziabad of Uttar Pradesh and as such he is a non Himachali, a non-agriculturist and has got no legal authority to purchase agricultural land in Himachal Pradesh without the Whether reporters of the Local papers are allowed to see the judgment.yes. 2 prior permission of the State Government. An agreement was entered into between the parties was the sale of the land where the consideration was settled at ` 3,50,000/- by an agreement dated 12.3.1987 and a sum of ` 35,000/- was paid to him. The remaining sale consideration of ` 3,15,000/- was agreed to be paid by the defendant on or before 30.9.1987 at the time of execution of the sale etc. 3. The defendant resisted the suit on the ground that the plaintiff had received the entire sale consideration on 6.6.1988 and also delivered a possession to him pursuant to the transaction. He has spent more than a sum of ` 4,00,000/- on improvement of the suit land to the knowledge of the plaintiff who did not resist such development. The suit was barred under Section 53-A of the Transfer of Property Act. On the settled issues, the learned trial court held that the plaintiff was estopped by his act and conduct in maintaining the suit. On the question of limitation, the issue was neither pressed nor argued. The Court held that the provisions of Section 53-A of the Transfer of Property Act were attracted. After trial the court concluded: “The cumulative effects of the aforesaid discussion is that the defendant has established from the clear cut and unequivocal admission of plaintiff that the defendant has performed his part of contract by making payment of the entire sale consideration and after receiving the possession of suit land they have effected improvements over suit land by raising construction over it by spending considerable amount. Therefore, in the given circumstances, the plaintiff has no right to claim the possession of suit land and the plaintiff is estopped by his act and conduct to file the present suit and the suit is also barred under Section 53-A of the Transfer of Property Act. I accordingly decide issue No.1,3 and 4 in favour of defendant and issue No.6 against the plaintiff.” 3 4. Appeal preferred before the learned District Judge was also dismissed. The plaintiff is now in appeal. This appeal was admitted on 21.9.2000 on questions No. 1 to 3 formulated in the appeal: 1. Whether the agreement dated 12.3.1987 entered into between the parties for the sale of agricultural land could be endorsed more so when it has been revoked by the plaintiff as no permission u/s 118 of the H.P .Tenancy and land Reforms Act had been obtained by the defendant which is not an agriculturalist of Himachal Pradesh? 2. Whether the plea of part performance of the agreement u/s 53-A of the Transfer of Property Act could be set up by the defendant in a suit for possession when the agreement was prohibited by law more so in view of the non-obstantic clause provided under the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act?. 3. Whether the findings of the court below are based on misconstruction of Section 53 A of the Transfer of Property Act and 118 of the H.P. Tenancy and Land Reforms Act and findings on issue No.3 and 4 are not sustainable?. 5. Adverting to the first question, the matter is no longer res integra. It has now been settled by a catena of decisions that non grant of permission does not debar the grant of a decree for specific performance. 6. In Mrs. Chandnee Widya Vati Madden v. Dr.C.L.Katial and others, AIR 1964 SC 978, the Supreme Court held: “ 4. The main ground of attack on this appeal is that the contract is not enforceable being of a contingent nature and the contingency not having been fulfilled. In our opinion, there is no substance in this contention. So far as the parties to the contract are concerned, they had agreed to bind themselves by the terms of the document executed between them. Under that 4 document it was for the defendant-vendor to make the necessary application for the permission to the Chief Commissioner. She had as a matter of fact made such an application but for reasons of her own decided to withdraw the same. On the findings that the plaintiffs have always been ready and willing to perform their part of the contract, and that it was the defendant who willfully refused to perform her part of the contract, and that time was not of the essence of the contract, the Court has got to enforce the terms of the contract and to enjoin upon the defendant-appellant to make the necessary application to the Chief Commissioner. It will be for the Chief Commissioner to decide whether or not to grant the necessary sanction.” (Pp.979 & 980) 7. In Ajit Prashad Jain v. N.K.Widhani and others , AIR 1990 Delhi 42, the High Court of Delhi dealing with the question as to whether in the absence of permission under Urban Land (Ceiling & Regulation) Act, a decree for specific performance could be passed. The Court held: “21. The permission from Land and Development Office is not a condition precedent for grant of decree for specific performance. In Mrs. Chandnee Widya Vati Madden v. Dr. C.L.Katial, (1964) 2 SCR 495: (AIR 1965 SC 978) the Supreme Court confirmed the decision of the Punjab High Court holding that if the Chief Commissioner ultimately refused to grant the sanction to the sale the plaintiff may not be able to enforce the decree for specific performance of the contract but that was no bar to the court passing a decree for that relief. The same is the position in the present case. If after grant of the decree of specific performance of the contract the Land and Development Office refuses to grant permission for sale the decree holder may not be in a position to enforce the decree but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract……………….” (Pp.48 & 49) 8. To similar effect are the decisions of Culcutta High Court in Anjali Das V. Bidyut Sarkar, AIR 1992 Calcutta 47 and Delhi High 5 Court in Raghunath Rai and another V. Jageshwar Prashad Sharma and another, AIR 1999 Delhi 383. 9. In K.Raheja Construction Ltd. v. Alliance Ministries and others , AIR 1995 SC 1768, the Court held: “4. It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years elapsed from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent.” (Pp.1768 & 1769) 10. This Court in Rahul Bhargava Vs. Vinod Kohli and others, 2008 (1) Shim.L.C. 385 relying upon a decision of the Supreme Court in Manzoor Ahmed Magray V. Ghulam Hassan Aram and others (1999) 7 SCC 703, has also reiterated these principles. 11. From the facts what I find is that the entire sale consideration was passed on to the petitioner. The fact that he has not obtained permission from the Government would be no bar for grant of decree for specific performance in favour of the respondent in case he chooses to institute any action in accordance with law and within limitation. 12. In these circumstances, it cannot be urged that the agreement is unlawful as it defeats the provision of law. On the other aspect that the agreement if allowed to continue, would defeat the 6 provisions of law, the submission is rejected for the reason that there is ample power vested in the State Government under Section 118 of the Himachal Pradesh Tenancy Land Reforms Act, to initiate action against a person who purchases land in contravention of the provisions of the Act. One other submission has been made by the learned counsel appearing for the appellant that ground No.7 raised in the appeal to the effect that the appellate Court did not consider the pleading of the plaintiff that the amendment in the plaint was necessitated as the agreement was opposed to law and would defeat the provisions of the law. In such an event, there was no question of its enforcement and, therefore, the suit of the plaintiff should and ought to have been decreed. 13. The answer to this question has already been considered by me hereinabove. This submission on the part of the plaintiff is also rejected. 14. This judgment is confined to its facts and does not adjudicate on any other law/ regulation relating to sale/purchase of land in Himachal Pradesh. Submission made by the learned counsel for the appellant herein that the petitioner cannot continue in possession because of the provisions of the Tenancy Act (supra) is a point to be considered by the State Government in accordance with law and not for the petitioner to urge. The State has not been impleaded as a party to these proceedings. Question Nos. 2 and 3. 15. In view what I have stated on question No.1, no decision is required under these questions. Appeal is therefore dismissed. There shall be no order as to costs. (Dev Darshan Sud), May 3, 2011(R) Judge 7