1 SA 333.1991 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 333 OF 1991 1. Bhausaheb Gayaji Bhujbal Age : 29 Yrs., Occ. Agriculture, R/o : Rahata, Tq. Kopargaon, Dist. Ahmednagar. 2. Manda Gayaji Bhujbal Age : 28 Yrs., Occ. Agriculture, R/o : Rahata, Tq. Kopargaon, Dist. Ahmednagar. 3. Anusaya Arunrao Bhaskar Age : 30 Yrs.,Occ. Agriculture, R/o : Kopargaon, Dist. Ahmednagar. ..... APPELLANTS V E R S U S 1. Dagu Dantram Karmase Age : 62 Yrs., Occ. Agriculture, and business, R/o : Rahata, Tq. Kopargaon, Dist. Ahmednagar. 2. Mhalasabai Gayaji Bhujbal Age : 29 Yrs., Occ. Agriculture, R/o : Rahata, Tq. Kopargaon, Dist. Ahmednagar. .... RESPONDENTS 2 SA 333.1991 - ( J ) Mr.D.K.Kulkarni ,Advocate for the appellants. Mr.R.N.Dhorde, Advocate for Respondent No. 1. CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT : 24/03/2011 JUDGMENT: 1. The present Second Appeal is by the original defendant no. 1. 2. Initially, the suit land was given on lease to the plaintiff on 26/6/1957 by deceased Gayaji, who was the father of defendant nos. 1,2 and 4 and husband of defendant no. 3. Thereafter, another lease deed was executed in favour of plaintiff in the year 1972 for the period of seventy ( 70 ) years by deceased Gayaji by accepting advance rent of Rs. 2,000/-. The plaintiff, pursuant to the lease, was in actual possession of the suit land. Thereafter as the father of defendant no. 1 was in need of money for purchasing bullock, he decided to sale the suit land to the plaintiff for Rs. 3,000/- and executed agreement of sale on 24/5/1974. The sale deed was to be executed after obtaining necessary permission for sale from the competent authority. The plaintiff at the time of agreement of sale, paid Rs. 700/- to the father of the defendant no. 1 and the amount of Rs. 2,000/- paid at the time of lease, was adjusted and the plaintiff was only required to 3 SA 333.1991 - ( J ) pay balance amount of Rs. 300/-. It is contended by the plaintiff that the plaintiff called upon the father of the defendant no. 1 to execute the sale deed after obtaining necessary permission, but, no heed was paid. Thereafter Gayaji expired on 6/12/1977. By virtue of the amendment to the provision of Prevention of Fragmentation and Consolidation of Holdings Act [ For short, ‘ Consolidation and Holdings Act ’ ] in the year 1977, the condition of obtaining permission stood waived. The plaintiff as such issued notice to the defendants calling upon them to execute the sale deed. As no heed was paid, the plaintiff thereafter instituted the Suit for specific performance. 3. The defendants filed Written Statement in which they admitted the lease in favour of the plaintiff. They have also contended that deceased Gayaji had no right to sale the entire land to the plaintiff, the property being ancestral. They further submitted that the agreement was got executed by fraud by deceiving deceased Gayaji, so also, the said agreement was not for the benefit of the family, was not for the legal necessity and as such was not binding on the defendants. The agreement of sale is void in view of the provisions of Consolidation and Holdings Act, so also, the Suit is not within limitation. 4 SA 333.1991 - ( J ) 4. The trial Court decreed the Suit for specific performance holding that the agreement of sale was duly executed by Gayaji. The same was legal and valid and was for legal necessity, so also, the plaintiff was and is ready and willing to perform his part of the contract. The Court directed the specific performance of contract. The defendants aggrieved thereby, preferred Appeal. The appellate Court also dismissed Appeal and confirmed the Judgment and decree passed by the trial Court granting the relief of specific performance to the plaintiff. Being aggrieved thereby, the defendants have assailed the said Judgment and decree in the present Second Appeal. 5. The Second is admitted on 4/10/1991. Though the Second Appeal is admitted on 4/10/1991, no substantial questions of law were framed. In fact, the Appeal is required to be considered for admission. However, as the Appeal was argued at length and Mr. D.K.Kulkarni, the learned counsel for the appellants canvassed his arguments on following questions. I proceed to adjudicate the same after hearing the learned counsel for the respective parties : (i) Whether findings recorded by both the Courts below as to proof of agreement to sale Exh. 39 can be said as “ perverse ” being 5 SA 333.1991 - ( J ) contrary to Order XVIII Rule 1,2 and 3-A of the Code of Civil Procedure, 1908 and Judgment of this Court in the matter of Vijaysing Govardandas and others V/s Dwarkadas Mulji reported in 2002 ( 1 ) Mh.L.R. - 398 ? (ii) Whether both the Courts below are legally correct in recording findings that plaintiff proved that Gayaji sold land for legal necessity and in fact legal necessity existed, if not, whether Judgments and decrees of both the Court below deserves to be quashed and set aside ? (iii) Whether grant of decree for specific performance in absence of exercising right to purchase land by plaintiff being tenant is contrary to Sec. 32 ( O ) of Bombay Tenancy and Agriculture Lands Act, 1948 ? (iv) Whether both the Courts below are legally correct in not framing issue of hardship and not recording finding thereon ? (v) Whether findings recorded by both the courts below on the point of legality of transaction in view of section 31, 31 AA and 31 AB of the Bombay Prevention of Fragmentation 6 SA 333.1991 - ( J ) and Consolidation of Holdings Act, 1947 can be said to be perverse ? 6. Mr. D.K. Kulkarni, the learned counsel submits that the grant of decree for specific performance is not automatic. It is a discretionary one. The Court should have considered the question of hardship. Failure to consider the same, would vitiate the Judgment. The Court shall see the equity. If the decree for specific performance is granted, then the defendants would become landless. The leaned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Raghunath Fulaji Jadhav and another V/s Rajendra Dinkarrao Patil and others reported in 2007 (3) Mh.L.J. - 519. 7. Mr. Kulkarni, the learned counsel submits that the document is proved as is required under law. The finding in that regard is not in consonance with the provisions of Order XXXVIII Rule 1, 2 and 3-A of the Code of Civil Procedure. For the said purpose, the learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Madholal Sindhu V/s Asian Assurance Co. Ltd. and others reported in ( 1954 ) 56 BOMLR 147. The learned counsel states that the contents of the documents are not proved, the plaintiff has not stepped into the witness box and his son has led the evidence. Mere proof of execution would not 7 SA 333.1991 - ( J ) ipso facto prove the contents of the document. 8. Mr. Kulkarni, the learned counsel submits that the sale was hit by Section 32 ( O ) of the Bombay Tenancy and Agricultural Lands Act [ For short, ‘ Tenancy Act ’ ]. No issue is framed in that regard. The right to purchase the land should be exercised by the tenant within the period allowed by law. In the present case, the said right to purchase has not been exercised by the tenant as stipulated and as such the plaintiff who was the tenant, has lost his right and no decree for specific performance can be granted. 9. Mr. Kulkarni, the learned counsel further submits that the Courts below have not properly recorded the findings on the legality of the transaction in view of the bar ingrafted in Section 31, 31-AA and 31-AB of Consolidation and Holdings Act. The amendment to the said Act does not tantamount to blanket relaxation of the condition, but it is subject to the conditions and as the said conditions are not satisfied, the said transaction is hit by the provisions of the said Act. 10. Per contra, Mr. R.N. Dhorde along with Mr. Kadam, the learned counsel for the plaintiff/respondent submit that ( i ) the provisions of the 8 SA 333.1991 - ( J ) Tenancy Act would not be applicable as the specific performance was sought in respect of agreement of sale and the tenant was not exercising his right to purchase under the Tenancy Act (ii) When the total land has been sold, then the permission of the competent authority under the Consolidation and Holdings Act is not necessary. For the said purpose the learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Shantabai Bhima Sangle and others V/s Sau. Yamunabai Waliba Kedar and others reported in 2009 ( 5 ) ALL MR – 321 and another Judgment of the learned Single Judge of this Court in the case of Dinu Govinda Kadam ( since deceased through L.Rs. ) V/s Shankar Tatyaba Pisal and another reported in 2009 ( 6 ) ALL MR – 310. 11. The learned counsel further submit that the burden to plead and prove hardship is on the defendants. The defendants have not pleaded about the hardship and so have also not proved the same. Even the witness of the defendants has admitted that still some land remains with them. As the hardship is not pleaded and proved, the same could not be considered. For the said purpose, relies on the Judgment of the learned Single Judge of this Court in the case of Parashram Vithoba Ubhedal V/s Rashadbee W/o Rajmohmad Shaikh and others reported in 2009 (1) ALL MR – 647. 9 SA 333.1991 - ( J ) 12. The argument of the learned counsel for the appellants that right to purchase has not been exercised as per the provisions of Section 32 ( O ) of the Tenancy Act and as such the decree for specific performance can not be granted, is mis-placed and not sustainable. The right to purchase contemplated under Section 32 ( O ) of the Tenancy Act is with regard to the purchase under the provisions of the Tenancy Act. The present Suit for specific performance is in respect of agreement of sale entered into between the parties dehors the Tenancy Act. The plaintiff is trying to enforce his rights under the agreement of sale, which can not be subject matter of the Tenancy Act. When the transaction was independent of the transaction of lease, then in such circumstances, no question arises of the applicability of the provisions of the Tenancy Act, interalia Section 32 (O) of the Tenancy Act would not apply. The parties would be governed by their ordinary civil rights and not by the tenancy Act in the present matter for enforcement of the agreement of sale. 13. The bar engrafted under section 31, 31-AA and 31-AB of the Consolidation and Holdings Act would also not apply. The land which was the subject matter of the transaction is the land admeasuring 58 R. out of Block No. 1775. Block No. 1775 is of 58 R. and as such when the total land is sold, the said bar ingrafted under the Consolidation and Holdings Act 10 SA 333.1991 - ( J ) would not apply. The said issue is no longer res-integra and is settled by this Court in the case of Shankar Pisal and Shantabai referred supra. 14. The contention that the contents of the agreement of sale have not been proved as is required under the statute, may not be sustainable and more over the same would not be the substantial question of law as both the Courts concurrently on appreciation of evidence have held that the contents of the agreement are proved. The defendants have nowhere suggested to the witness of the plaintiff Govind, who is the son of plaintiff, that he was not present at the time of agreement. They also did not dispute that the agreement bears the thumb impression of deceased Gayaji. Even the Sub Registrar has made a specific endorsement that the executent has admitted execution of the agreement of sale before him and he has received Rs. 700/- before him. The said agreement of sale is a registered agreement of sale. Taking into consideration all the facts, the Courts have held the said agreement of sale and its contents as proved. The same is finding of fact based on evidence. 15. The question of hardship would arise if the defendants would have pleaded the same. From the perusal of the Written Statement of the defendants, it is manifest that the defendants have nowhere pleaded 11 SA 333.1991 - ( J ) hardship. In such circumstances, when the defendants have not pleaded nor proved hardship, no question arises of the Courts framing issue of hardship and the same could not be raised in Second Appeal. 16. The plaintiff is in possession of the suit property since 1957. The agreement of sale is proved. It is held by the Courts below that the plaintiff was and is ready and willing to perform his part of the contract. In such circumstances, both the Courts have properly exercised their discretion of decreeing the Suit for specific performance and the reasonings given by the Courts below are plausible reasonings. As such, no case for interference is made out in the present Second Appeal. 17. It was contended by Mr. D.K. Kulkarni, the learned counsel for the appellant that the prices have risen and so it would not be equitable to grant relief of specific performance. 18. Mere rise in prices can not be the ground to negate the decree for specific performance. 19. However, inflation is the order of the day and as such, to adjust the equity I feel it appropriate to direct the plaintiff to pay additional 12 SA 333.1991 - ( J ) amount of Rs. 50,000/- ( Rupees Fifty Thousand only ) to the defendants within the period of two ( 2 ) months from today. On deposit of Rs. 50,000/- ( Rupees Fifty Thousand only ) by the plaintiff, the decree passed by the trial Court and confirmed by the lower appellate Court shall be executed. 20. Save and except the direction to the plaintiff to pay the additional sum of Rs. 50,000/- ( Rupees Fifty Thousand only ) to the defendants either personally to the defendant or deposed the same in the Court within the period of two ( 2 ) months, the rest of the decree passed by the trial Court and confirmed by the lower appellate Court is up-held. The Second Appeal is accordingly disposed of with no order as to costs. [ S.V. GANGAPURWALA,J. ] KNP/SA 333.1991