CASE TITLE – Babasaheb Dhondiba Kute v. Radhu Vithoba Barde
CASE NUMBER – SLP(C) No.29462 OF 2019
DATED ON – 15.02.2024
QUORUM – Justice B.V. Nagarathna & Justice Augustine George Masih
FACTS OF THE CASE
The appellant-plaintiff and the respondent-defendant entered into an agreement to sell dated 31.07.2001 under which, the defendant agreed to sell his land of 80R situated at Block No.41/1, Mandve (Bk), Tq. Sangamner to the plaintiff for a total consideration of Rs.2,25,000/-. An advance amount of Rs.1, 55,000/ was paid by the plaintiff to the defendant on the said date. Thereafter possession was stated to have been given in the year 2003 by the defendant to the plaintiff. On 10.01.2003, the plaintiff paid an additional consideration of Rs.65, 000/- and thus out of a total consideration of Rs.2, 25,000/-, an amount of Rs.2, 20,000/- was paid. Since the defendant did not perform his part of the contract to execute the sale deed, the plaintiff filed Special Civil Suit no.11 of 2005 before the concerned trial Court seeking the decree for specific performance of the agreement to sell and in the alternative, for refund of the advance sale consideration / earnest money of Rs.2, 20,000/- along with interest @ 6% p.a. In response to the suit summons and notice issued by the trial Court the defendant appeared and denied the case of the plaintiff by filing his written statement. The trial court framed the issues for its consideration and ultimately refused the decree of specific performance and granted the alternative relief of refund of Rs.2, 20,000/- with interest 6% p.a. Being aggrieved by the denial of the decree for specific performance of the agreement to sell, the plaintiff preferred his appeal before the First Appellate Court. The First Appellate Court affirmed the judgment of the trial Court but increased the rate of interest from 6% to 14% from the date of the decree. He also directed the plaintiff to hand over possession to the defendant. Being aggrieved, the plaintiff preferred the second appeal, namely, S.A. No.118/2018 before the High Court. The High Court considered Section 36A of the Maharashtra Land Revenue Code, 1966 and observed that such a decree for specific performance could not be granted and thereby, dismissed the second appeal. Hence, this appeal.
ISSUES
Whether the plaintiff is entitled to the relief specific performance of the agreement to sell dated 31.07.2001?
STATUTES
Section 36A of the Land Revenue Code, prescribes how Tribal land occupancy cannot be transferred to non-tribals without government approval.
CONTENTION OF APPELLANTS
Learned counsel for the appellant contended that the High Court was not right in interpreting Section 36A of the Land Revenue Code to the effect that there was a total bar for transfer of any land to be made by a tribal to a non-tribal. Such a transfer by way of sale could be made on the basis of the conditions stipulated therein, that is, with the previous sanction of the State Government. That the stage for obtaining a sanction had not arisen in the instant case, inasmuch as the defendant had not come forward to execute the sale deed. In the circumstances, the plaintiff filed a suit seeking specific performance of the agreement to sell. Even after a decree for specific performance is granted by the Court, the plaintiff was required to seek permission under Section 36A of the Land Revenue Code and thereafter execute such a decree. Merely because Section 36A stipulates a pre-condition for sale of land by tribal to a non-tribal, it would not imply that there is a bar to seeking a relief from specific performance of an agreement to sell entered into by a tribal in favour of a non-tribunal. He contended that in a suit for specific performance for agreement to sell what was required to be considered was conditions and stipulations considered under Sections 10, 16 etc. of the Specific Relief Act, 1963 and the plaintiff had complied with those conditions inasmuch as out of a total consideration of Rs.2, 25,000/-, the plaintiff had already tendered Rs.2, 20,000/- and he had performed his part of the contract whereas the defendant had not done so. Therefore the trial Court as well as the first appellate Court were not right in granting only the alternative relief. He further contended that Section 36A of the Land Revenue Code was improperly invoked by the High Court. He submitted that in the absence of the defendant coming forward to execute the sale deed, there was no occasion for the plaintiff to seek such a sanction of the State Government that only if the decree for specific performance is passed in favour of the plaintiff herein he would be in a position to seek such a sanction and ultimately the decree would be executed only if the sanction is given by the State Government in terms of Section 36A of the Land Revenue Code. Therefore, the High Court was not right in holding that in view of the Section 36A of the Land Revenue Code, the defendant had no right to even enter into an agreement to sell and that the plaintiff had no right to seek the relief of specific performance of the agreement to sell. It was contended that the judgments of the High Court and courts below may be set aside and decree of specific performance of agreement to sell may be granted by allowing this appeal.
CONTENTIONS OF RESPONDENTS
The Learned Counsel for the respondent supported the impugned judgment and contended that Section 36A not only refers to sale, gift, exchange, mortgage, lease but also uses ‘or otherwise’. That in the instant case, pursuant to the agreement to sell entered into by the defendant in favour of the plaintiff, possession also was handed over. That the sale agreement was in violation of Section 36A of the Land Revenue Code. Therefore, the High Court was right in holding that the transaction itself was void since there was no prior sanction obtained and hence, the decree for specific performance could not have been granted. He therefore contended that there is no merit in this appeal and therefore, the same may be dismissed.
COURT ANALYSIS AND JUDGEMENT
The Hon’ble Supreme Court found that the High Court had focused itself only on the aspect regarding Section 36A of the Land Revenue Code to deny relief to the appellant-plaintiff. The trial Court, the First Appellate Court as well as the High Court have concurrently held that there was indeed an agreement to sell between the parties and the plaintiff had paid a sum of Rs.2, 20,000/- out of a total consideration of Rs.2, 25,000/- to the defendant-respondent herein, who had also handed over possession of the subject land to the plaintiff. When all the courts have held that the plaintiff has performed his part of the agreement inasmuch as he had tendered a sum of Rs.2,20,000/- out of a total consideration of Rs.2,25,000/- and he was ready and willing to perform the rest of the obligation under the contract, it was only in the context of non-performance by the defendant that the plaintiff was constrained to file the suit for specific performance. Therefore, on the basis of Section 36A, the trial Court, the first appellate court as well as the High Court could not have declined to grant the decree for specific performance to the plaintiff inasmuch as the considerations under the provisions of the Specific Relief Act, 1963 only had to be made for the purpose of adjudicating the suit between the parties. The Hon’ble Supreme Court stated that since there was no reason to decline the grant of a decree under the provisions of the said Act, the trial Court, the First Appellate Court as well as the High Court ought to have granted the said decree rather than granting an alternative relief. And after looking through all facts and contention the Supreme Court decided to modify the judgment of the High Court, First Appellate Court as well as the trial Court and decree the suit filed by the plaintiff by holding that the plaintiff is entitled to the relief specific performance of the agreement to sell dated 31.07.2001, and held that the suit is to be decreed in the aforesaid terms. The Court further stated It is needless to observe that now that they have granted the decree of specific performance, the appellant-plaintiff shall proceed under Section 36A of the said Section before seeking conveyance of the subject land in his favour in case the defendant is a tribal.
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Judgement Reviewed by – Gnaneswarran Beemarao
