Raghunath Fulaji Jadhav v. All

ORAL JUDGMENT

Challenge in this second appeal under section 100 of the Code of Civil Procedure (for short, "C.P.C.") is to the judgment rendered by the learned Vth Addl. District Judge, Solapur in Civil Appeal No.130 of 1988 reversing the Judgment and order passed by the trial Court by which the suit was dismissed.

Brief facts, encompassing the details, which lead to the filing of this appeal, are as follows: The dispute is regarding land Gat No.132 situate at Mouje Bhalvani, Taluka Kamala, District-Solapur admeasuring 3 Hector 43 Ares (for short, "suit property"). The suit property is admittedly the ancestral property of deceased Bhimrao Krishnaji 3 3 3 Kulkarni. Bhimrao sold the suit property by an agreement dated 12th December, 1967 to respondent no.1 for a total consideration of Rs.2500/-. The consideration was paid by respondent no.1 in the form of earnest money of Rs.150/- and two subsequent instalments of Rs.1850/- paid on 30th September,1968 and Rs.500/- paid on 5th November,1969. It was agreed by both the parties that the sale deed would be executed within six months of the deceased - Bhimrao obtaining permission from the competent authority under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act,1950 (for short, "the Act"). Bhimrao died on 10th October,1979 and till then no permission was obtained from the competent authority. Defendant nos 1 to 5, who are the heirs of Bhimrao, refused to perform their part of the contract and issued notice dated 23rd October 1980. Defendant nos. 1 to 3 subsequently sold the suit property to defendant nos 6 and 7, that is, present appellants, for a consideration of Rs.16000/- by registered sale deed dated 4.7.1981. In the meanwhile, respondent no.1 filed a civil suit no.55 of 1981 for specific performance against the heirs of Bhimrao, that is,

defendant nos 1 to 5 and the appellants. The trial Court dismissed the suit vide its judgment and order dated 30.6.1984 and the appeal filed by the respondent-plaintiff was allowed vide judgment and 4 4 4 order dated 2.2.1991, hence this appeal by defendant nos 6 and 7.

The reference will have to be made to the suit filed by the heirs of Bhimrao, that is, defendant nos.1 to 5 bearing suit no.160 of 1980. This suit was filed for injunction simplicitor. The trial Court had granted temporary injunction in favour of the heirs of Bhimrao. The plaintiff claim that by virtue of the temporary injunction granted in the said suit the heirs of Bhimrao, namely, Nishikant and Bhalchandra dispossessed the plaintiff. Subsequently, the injunction was vacated. The suit was not prosecuted further. However, the possession was not restored. Thereafter on 4.4.1981 the plaintiff, instituted the present suit. After filing of the suit on 4.4.1981, defendant nos.1 to 3 executed the sale deed in favour of defendant nos.6 and 7 and, therefore, they were added as party defendants in the suit. They were put in possession of the suit property by the defendant nos.1 to 5. The plaintiff, therefore, prayed for possession of the suit property. Defendant nos.6 and 7 claim that they purchased the suit property from defendant nos.1 to 3 for Rs.16,000/- and that they are bonafide purchasers for value without notice.

Mr.Jamdar, learned counsel for the appellants 5 5 5 confined his arguments mainly on two points. Firstly, whether the suit is within limitation, and secondly, whether the jurisdiction as contemplated under section 20 of the Specific Relief Act, 1963 has been exercised by the appellate court properly. He submitted that the present case is covered by the first part of Article 54 of the Limitation Act, 1963 and not the second part thereof as held by the appellate court. In support of this submission he invited my attention to the fact that the necessity of obtaining permission of authority under the provisions of the Act was done away with and, therefore, the date for performance of the agreement became ascertainable, that is, six months from the date of amendment. In support of this submission he placed reliance upon the judgment of the Supreme Court in Ramzan Vs. Hussaini (1990) 1 S.C.C. Ramzan Vs. Hussaini (1990) 1 S.C.C. Ramzan Vs. Hussaini (1990) 1 S.C.C.

104104104. Mr.Jamdar invited my attention to section 31 AB of the Act of 1947 to contend that the transactions, such as in the present case, were no longer treated as void and, therefore, the date for performance of the agreement became ascertainable. In other words, he submitted that by virtue of the amendment the requisite permission stood granted by operation of law and the six months period will have to be calculated from the date of amendment. He further submitted that from the conduct of the plaintiff it is clear that he was aware about the amendment and, therefore, he ought 6 6 6 to have filed the suit within three years of the amendment.

Mr.Jamdar next submitted that the categories of equitable relief listed in section 20 of the Specific Relief Act are not exhaustive. The appellants has listed relevant equitable considerations. These provisions have not been considered by the appellate court in proper perspective and has overlooked the law settled by High Courts and the Supreme Court. He submitted that delay in approaching the court seeking specific performance was completely overlooked which was relevant consideration under section 20 of the Specific Relief Act. In support of this contention he placed reliance upon the judgment of the Supreme Court in Manjunath Anandappa URF Shivappa Hanasi Vs. Manjunath Anandappa URF Shivappa Hanasi Vs. Manjunath Anandappa URF Shivappa Hanasi Vs.