ASHWINKUMAR MANILAL SHAH Vs. CHHOTABHAI JETHABHAI PATEL

JUDGEMENT

(1.) The above-mentioned First Appeal and the two civil applications are proposed to be disposed by a common judgement and order. The First Appeal has been filed against the judgement and decree dated 2.12.1987 of Civil Judge (S.D.), Vadodara, dismissing the suit of the plaintiff-appellant for specific performance of agreement to sell, executed by the defendants nos.1 and 2 on 1.2.1979. The brief facts giving rise to this appeal are as under:-

(2.) On 1.2.1979 the defendants nos.1 and 2 along with the defendants nos.3 to 8 executed an agreement to sell the land belonging to exclusive ownership, possession and enjoyment of the defendants. The area of the land agreed to be sold was 37,371 sq. ft. of Survey No.17/2, which is wrongly mentioned in the plaint as Survey No.10/2 of village Manjalpura, District Vadodara, at the rate of Rs.5.81 per sq. ft. A sum of Rs.10,001 was paid as earnest money to the defendants. The boundaries of the land to be sold are given in paragraph 1 of the plaint. The defendants nos.1 and 2 at the time of execution of agreement to sell gave assurance that they have right to sell on behalf of the defendants nos.3 to 8 and the title of the said land is clear and marketable. It was the responsibility of the defendants to get non-agricultural permission under the Urban Land (Ceiling & Regulation) Act, 1976 and the expenses thereof were to be borne by the plaintiffs. As such upon the request of both the defendants one Ashok B. Patel, Advocate, was engaged for obtaining requisite permission. The balance amount was to be paid at the time of execution of sale deed and possession was also to be delivered thereafter. Since the property was ancestral property, it was partitioned on 19.9.1979 between the defendants nos.1 to 8. The proceedings for obtaining permission from the Urban Land Ceiling authorities were initiated but thereafter the defendants changed their mind because the prices of the land increased. The defendants nos.1 and 2 by their undated letter informed the plaintiffs that the agreement to sell has come to an end and they can get back the earnest money. Thereafter exchange of correspondence between the parties took place. Neither permission was obtained nor sale deed was executed. Hence, the suit for specific performance of agreement to sell was filed by the plaintiffs.

(3.) The suit was resisted by the defendants on variety of grounds. The first was that the correct survey number of the land in dispute is 17/2 and not 10/2. Execution of agreement to sell is not disputed. However, it was pleaded that the agreement to sell was not executed by defendants nos.1 and 2 on behalf of defendants nos.3 to 9. The said agreement is null and void because other co-sharers have not joined the same and it has also become null and void because the permission under Land Ceiling Act was not obtained by the plaintiffs. The defendants nos.1 and 2 returned the earnest money of Rs.10,000.00 through bank draft by registered post but it was not accepted by the plaintiffs. Consequently, it was pleaded that the plaintiffs had no right to claim back the earnest money.