High Court · 2025
Legal Reasoning
973.SA-450-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 450 OF 2023WITHCIVIL APPLICATION NO. 13191 OF 20241.Rahul Raman Muttha;Age : 42 years, Occ: Business;R/o: Main Road, Shrirampur,Dist. Ahmednagar.2.Nilesh Suresh Oza;Age : 43 years, Occ: Business;R/o: Main Road, Shrirampur,Dist. Ahmednagar... Appellants Versus1.Raosaheb Jagannath Chaudhari;Deceased Through LR’s:1A)Pradip Raosaheb Chaudhari;Age : Major, Occ: Agri,1B)Manglbai Raosaheb Chaudhari;Age : Major, Occ: Agri,1C)Priti Kishor Pangawane;Age : Major, Occ: Household;1D)Dipti Satish Ghule;Age : Major, Occ: Household;All are R/o : Jalgaon; Tq. Rahata,Dist. Ahmednagar.2.Sumant Gulabrao Chavan;Age : Major, Occu. Agri,R/o : Ward No.7, Chajed Complex,Shrirampur, Tq. Shrirampur,Dist. Ahmednagar.3.Nitin Achyutrao Kharde,[1] 973.SA-450-2023.odtAge : Major, Occ: Household;R/o : Kolhar Bk. Tq. Rahata,Dist. Ahmednagar. .. Respondents****** Mr. Deelip L. KhivesaraAdvocate for the Appellants.* Mr. Dhananjay Mane and Mr. Umesh BodkheAdvocate for the Respondent Nos. R/1A to 1D and 3.* Mr. Kishore M. GadhaveAdvocate for the Respondent No.2.***** CORAM : SHAILESH P. BRAHME, J. Date Of Reserving The Order : 11th June 2025 Date Of Pronouncing The Order : 16th June 2025 FINAL ORDER :.Heard both sides.2.Appellants original Plaintiffs are non-suited by the trialCourt in Special Civil Suit No.6/2013 vide judgment and decreedated 01.08.2019 which is confirmed by Lower Appellate Court inRegular Civil Appeal No.28/2019 vide judgment and decree dated21.01.2023. They are challenging concurrent finding of facts in thepresent appeal. 3.It is a case of the Appellants that Respondent No.3 was theowner of suit land who had agreed to sell it to the Appellants byagreement to sale executed on 09.04.2010. Out of total amount ofconsideration of Rs.31,00,000/-, Appellants had paid[2] 973.SA-450-2023.odtRs.4,11,000/-. The suit land was Class-II Inam land. It was agreedbetween the parties that permission for alienation cum conversionof land from new tenure to old tenure and non-agriculturalpurpose would be secured at the expenses of Appellants. Afterconverting it into new tenure sale deed was to be executed withinone month. A proposal for cancellation of the new tenure wasstated to be pending since 19.08.2004 before the Collector. 4.In these premises, Appellants filed suit for specificperformance of contract as they were ready and willing to performtheir part of contract. The Respondents failed to secure necessarypermission from the competent authority. 5.Respondents contested the suit on various grounds. It iscontended that Appellants were under obligation to pay thecharges of the conversion of the suit land which was not compliedwith. The competent authority determined Nazrana amount videletter dated 15.05.2010. Due to failure of the Appellants to pay,application seeking permission for conversion of land was rejectedon 24.11.2010. It is contended that Appellants are not entitled tothe relief due to non-compliance of terms of contract. 6.Appellants examined two witnesses and the Respondentsexamined three witnesses. The correspondence with thecompetent authority at Exhibits- 86 to 88 was placed on record. 7.Both the Courts below concurrently held that Appellantswere not ready and willing to perform their part of contract. They[3]
Legal Reasoning
973.SA-450-2023.odtfailed to pay 75% of the amount of Government valuation ofRs.61,10,500/-. They were aware of the determination of 75% ofamount. It was further held that no evidence was produced by theAppellants to show that they were ready to pay balance amount. 8.Learned Counsel Mr. Deelip Khivesara appearing for theAppellants would strenuously submit that there was absolutely nocommunication from the Respondents to the Appellants,disclosing grant of permission for alienation or conversion of landfrom new tenure to old tenure. Neither was there anycommunication calling upon them to pay any charges. Both theCourts below according to him, committed error of jurisdiction inholding that Appellants were not ready and willing to performtheir part of contract. It is further urged that what was requiredfor execution of the sale deed was conversion of land from newtenure to old tenure and not the permission for non-agriculturalpurpose. Two different kinds of permission were necessary andnon-agricultural permission by the competent authority would beof no consequences. It is contended that both the Courts belowfailed to perceive the concept of distinct permission and arrived aterroneous conclusion. It is submitted that in the absence of anypermission of the Collector under the provision of Section 28 ofMaharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961which the Respondents were bound to obtain it was not possible toexecute sale deed. No fault can be attributed to the Appellants. 9.Learned Counsel for the Appellants would press into servicesubstantial questions of law in terms of ‘A to I’ enumerated in the[4] 973.SA-450-2023.odtSecond Appeal memo in support of his case. 10.Per contra, learned Counsel for the Respondents wouldsubmit that there are concurrent findings of facts recordedagainst the Appellants which are reasonable and plausible. Allaspects of the matter was taken into account. My attention isadverted to the cross-examination of PW-1/Rahul to demonstratethat Appellants had no adequate funds to meet the transactions. 11.Having considered rival submissions of the parties, whatemerges is that they are ad-idem for execution and the terms ofthe agreement dated 09.04.2010 at Exhibit-34. The suit land wasClass-II new tenure land and the permission of the competentauthority was required for its alienation. The expenses forconverting the land from new tenure to old tenure and permissionfor non-agricultural purpose was to be borne by the Appellants.Relying on the correspondence at Exhibits-86 to 88, both theCourts below inferred that Appellants failed to deposit 75% of thecharges which was detrimental to their plea of readiness andwillingness. 12.I have gone through original record and proceedings.Application at Exhibit-86 submitted on 17.07.2010 was for thepermission under Section 44(1) of the Maharashtra LandRevenue Code. Letter dated 15.05.2010 at Exhibit-87 addressedby Tahesildar to the Respondent No.3 was in respect ofGovernment valuation of the suit land and 75% of the amounttowards charges for conversion of the land to non-agricultural[5] 973.SA-450-2023.odtpurpose. It was bearing signature of the Appellant No.1 which wasrightly referred in the judgment of the Lower Appellate Court. Theletter dated 24.11.2010 at Exhibit-88 disclosed rejection of thepermission to convert the suit land into non-agricultural purpose.13.After appreciating the correspondence from Exhibit-87 and88, it was recorded by Courts below that Appellants were aware ofpayment of the charges, but no payment was made. The cross-examination of PW-1 – Rahul is also rightly appreciated by theLower Appellate Court. No endeavour was made by him to know asto the status of the proposal submitted soliciting the permission.No explanation is coming-forth as to why the Appellants did notpay 75% of the amount as charges towards conversion of landfrom agricultural to non-agricultural purpose. The cross-examination of PW-1 – Rahul would indicate that the balanceamount was not ready and the inference drawn by LowerAppellate Court cannot be faulted. 14.There is no material on record to show that distinctpermissions were solicited for converting land from new tenure toold tenure and for conversion of land to non-agricultural purpose.Appellants were not called upon to pay the expenses in thatregard. But that would not absolve the Appellants from paying thecharges indicated by letter dated 15.09.2010 at Exhibit-87. It isundisputed that amount determined by the competent authoritycommunicated vide Exhibit-87 was required to be paid by either ofthe parties. As per agreement Exhibit-34, Appellants were underobligation to bare the said charges. Failure of the said payment is[6] 973.SA-450-2023.odtdefinitely indicative of the fact that they are not ready or willing toperform their part of contact. 15.My attention is adverted to the permissions required underthe Maharashtra Agricultural Lands (Ceiling on Holdings) Act,1961 which were never issued in the present matter by thecompetent authority. However decree for specific performance forcontract can be granted subject to the permissions. Appellants didnot pay the charges for non-agricultural permission, but they areinsisting for permission for conversion of land from new tenure toold tenure. This conduct is against the terms of the contract. 16.A useful reference can be made to the ratio that conditionaldecree for specific performance for contract is possible to begranted. It is laid down in the matter of G.T. Girish Vs. Y. SubbaRaju (dead) by Legal Representatives and Another, (2022) 12 SCC321. Following of the relevant extract :“75.In other words, in an agreement wherein the vendor agrees to conveyproperty, which is permissible only with the permission of some Authority, the Courtcan, in appropriate cases, grant relief. We need only notice two recent Judgments which havereiterated the principle, the first of which is reported in Vishwa Nath Sharma V. Shyam ShankerGoela and another, which is relied upon, in fact, by the respondents. The decision of this Court,again relied upon by the respondents in Ferrodous Estates (Pvt.) Limited Vs. Gopiratnam alsoreiterates the said view.76.In Ferrodous Estates (Pvt.) (supra), the matter arose under the Tamil Nadu Urban Land(Ceiling and Regulation) Act, 1978. The High Court, in the impugned Judgment, had dismissed theSuit for Specific Performance, taking the view that till 1999, when the Tamil Nadu Urban CeilingAct was repealed, the agreement was not enforceable. That apart, under the agreement of sale,vacant land, in the aggregate, exceeding the ceiling limit of the plaintiff, would have to beconveyed to him, attracting the VETO contained in Section 5(3) read with Section 6 of the StateAct. It was this view, which was reversed by this Court, following the Judgments, which we havereferred to which relate to conditional decrees. This result was arrived at by this Court, afterfinding that agreement to sell contemplated transfer of the land only after getting exemption.Clause (4) of the Agreement contemplated that the vendor was to obtain permission from theCompetent Authority under the Urban Land Ceiling Act.[7]
Decision
973.SA-450-2023.odt77.We need not multiply authorities. All that is necessary to notice and find is that whenan agreement to sell is entered into, whereunder to complete the title of the vendor and for a saleto take place and the sale is not absolutely prohibited but a permission or approval from anAuthority, is required, then, such a contract is, indeed, enforceable and would not attract theshadow of Section 23 of the Indian Contract Act, 1872.”.Therefore submission of the Appellants that unless there is apermission, readiness or willingness cannot be inferred which hasno merit. 17.Both the Courts below have concurrently held against theAppellants which cannot be faulted. Reliance is placed by theRespondents on the judgment of Balwant Vithal Kadam Vs. SunilBaburaoi Kadam, (2018) 2 SCC 82, to corroborate the principles ofconcurrent findings of facts. Further reliance is placed on thejudgment of Vijay Kumar and Others Vs. Om Parkash, (2019) 17SCC 429, to buttress that relief of specific performance would bediscretionary and the balance amount was not ready withAppellants which affects the plea of readiness and willingness.Respondents have rightly relied on above judgments. 18.For the reasons stated above, I do not find that a case ismade out by the Appellants to entertain Second Appeal. Nosubstantial questions of law are involved in it. It is liable to bedismissed. Second Appeal is dismissed. There shall be no order asto cost. 19.Civil Application is disposed of. [ SHAILESH P. BRAHME ] JUDGENAJEEB..[8]