-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.561 OF 2007 APPEAL NO.561 OF 2007 APPEAL NO.561 OF 2007 Smt.Laxmibai Pandurang Sarode ...Appellant vs. Lavu Parisa Kamble ...Respondent Mr.V.A.Gangal for the Appellant Mr.Milind Deshmukh for the respondent CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 19, 2008. : MARCH 19, 2008. : MARCH 19, 2008. P.C.: P.C.: P.C.: 1. The submissions of the learned Counsel for the parties were heard on the last date. 2. The Appellant is the original defendant in a suit for specific performance of the agreement of sale of immovable property filed by the Respondent. The case of the Respondent-Plaintiff is that on 28th November 1987, an agreement for sale was executed by the Appellant in his favour. The consideration agreed was at the rate of Rs.40,000/- per acre. After notices were exchanged, the Respondent filed a suit for specific performance. It must be stated that the suit filed by the Respondent was initially decreed exparte and as per the decree, the Respondent deposited the balance consideration. Thereafter, the decree was set aside and the suit was remanded to the trial court. The trial court framed various issues. One of the defences of -2- the Appellant was that the suit land was an Inam land and an application for grant of permission for sale was rejected by the competent authority. The learned trial Judge held that the Respondent-Plaintiff had proved the execution of the agreement. The learned Judge held that the Respondent-Plaintif has proved the payment of earnest money of Rs.10,000/- on execution of the suit agreement and further payment of Rs.33,210.75 to the Land Development Bank on behalf of the Appellant. The trial court also accepted the case of the Respondent that he had paid a total amount of Rs.84,804.50 from time to time to the Defendant-Appellant. The trial court negatived the case made out by the Appellant that the Respondent obtained her thumb impression on blank papers. The trial court decided only one issue regarding the readiness and willingness in favour of the Appellant and dismissed the suit. The trial court held that the suit land being the watan land is not transferable without previous sanction of the Collector. The trial court found that an application was made by the Appellant for grant of permission to transfer but on her own subsequent statement, the said application has been filed. The learned Judge held that the hypothetical decree for specific performance cannot be passed when it is not possible to direct the authority i.e. the Collector to accord permission for sale. 3. In an Appeal preferred by the Respondent, the Appellate -3- Court has interfered and by setting aside the finding of the trial court on the issue of readiness and willingness, has passed a decree for specific performance directing execution of the sale deed after obtaining permission of the concerned authority. 4. The submission of the learned counsel for the Appellant is that the suit agreement was obtained by playing a fraud. A submission is made that the suit agreement could not have been be executed without prior permission of the Collector and execution of the agreement itself is against the public policy. He submitted that once an application for permission made by the Appellant was rejected, there could not have been a decree for specific performance passed by the court below. 5. He placed reliance on the decision of the Apex Court in case of Parakunnan Veetill Joseph’s son Mathew vs. Nedumbara Kuruvila’s son and others (A.I.R. 1987 S.C.2328) and submitted that the Respondent cannot be allowed to use the litigation as an instrument of oppression for obtaining unfair advantage. He placed reliance on the decision of the learned Single Judge of Gujrat High Court in case of Mangalbhai R.Mistri Vs.Special Secretary Revenue Department (XXVI (2) GLR 754) and submitted that even an agreement for sale of the suit land was hit by the provisions of section 5 of the Bombay inferior Village Vatan Abolition Act,1958. -4- 6. I have carefully considered the submissions. On the execution of the suit agreement and as regards the payment of consideration of Rs.84,804.50, there are concurrent findings of fact recorded by the Court below in favour of the Respondent Plaintiff. It must be stated that the Appeal in the District Court was by the Respondent-Plaintiff. In the Judgment of the District Court, the submissions made by the Advocates for the parties have been reproduced. The submissions made on behalf of the Appellant herein (Respondent before the District Court) have been reproduced in paragraph 11 which reads thus : "11. As against this learned counsel of the Respondent has submitted that impugned judgment and decree of the lower court is just, legal, proper and sustainable, being based on proper appreciation of oral, documentary evidence and law on proper appreciation of oral, documentary evidence and law points. He has also submitted that as suit land is new tenure permission for sell thereof is dire and without permission it will be amounting for sell thereof is dire and without permission it will be amounting illegal act at the hands of court and therefore, he has prayed for dismissal of the appeal by upholding impugned judgment and decree of lower court." -5- 7. It is obvious that the Appellant made no efforts to justify the decree by contending that the findings on other issues recorded by the trial court in favour of the Respondent were incorrect. In fact, there was no challenge to the said findings in the Appeal. Therefore, it will not be open for the Appellant to challenge the execution of the suit agreement on the ground of fraud. Moreover, there are concurrent findings of fact on the issue of execution of the suit agreement and payment of part consideration. 8. It is contended that the execution of the suit agreement was illegal as it was executed without obtaining prior permission of the Collector. An agreement for sale does not create any interest of the property in view of section 54 of the Transfer of Property Act,1882. The law on this point is very well settled and therefore, the decision of the Gujrat High Court does not lay down correct proposition of law. It will be necessary to refer the decision of the Apex Court in A.I.R. 1964 S.C. 978 where the view taken by the Apex Court is that in such a case the court can always pass a conditional decree of specific performance by directing the defendant vendor to secure sale permission. The decree can direct the execution of the sale deed after obtaining the sale permission. The decree can always direct that if the defendant vendor refuses to apply for permission, an application can be made to the authorities for grant of -6- permission through a Court Commissioner appointed for that purpose by the Court executing the decree of specific performance. 9. In the present case, the Respondent had applied for grant of permission. However, later on the Respondent changed her mind and made a statement before the authority that she was not interested in selling the suit property and therefore, the application was disposed of. There is no prohibition in law against making a fresh application for grant of permission to the concerned Revenue Authority. This is not a case where an application made by the Appellant-defendant was rejected by the authority on merits. The Appellant-defendant made an application which was not pressed by her later on and therefore, now the Appellant cannot take undue advantage of the order passed on the said application. 10. As stated earlier, on the basis of the ex-parte decree passed by the trial court, the entire balance consideration was deposited by the Respondent before the trial court. 11. At this stage, a submission is made by the Advocate for the Appellant that as per the terms of the suit agreement, the Appellant made an application for grant of permission and the permission was not granted. He, therefore, submitted that consequences provided in Clause 5 of the agreement will follow -7- and now the Appellant is under no obligation to execute the sale deed. 12. The Appellant cannot take advantage of her own wrong committed by not pressing the said application. The application made by the appellant has not been rejected on merits. 13. As the Respondent was found to be ready and willing to perform the suit agreement, the Appellate Court was justified in passing a conditional decree of execution of the conveyance subject to obtaining permission of the competent authority. 14. No substantial question of law arises. There is no merit in the Appeal and the same is dismissed with no order as to costs. 15. In view of dismissal of the Appeal, Civil Application No.1004 of 2007 does not survive and the same is disposed of. 16. At this stage, the learned counsel for the Appellant prays for continuation of ad-interim relief. Ad-interim order passed on 3rd September 2007 will continue to operate for a period of 12 weeks from today. -8- JUDGE JUDGE JUDGE