SHANKERRAO RAMRAO MAIRAL Vs. SUMATI BHIKAJI KHISTE

JUDGEMENT

(1.) This appeal is directed against the appellate judgment and decree in Regular Civil Appeal No. 41 of 1961 decided by Mr. D. A. Desai District Judge Baroda.

(2.) The facts of the case briefly stated are as under. The defendant No. 1 owned a piece of land in the Wadi locality of the city of Baroda. He farmed out plots in that piece of land and started selling them as building sites. There were several rows of plots known as A B C and so on. Row C contained 10 plots which were numbered as C-1 to C-10. On 26th August 1958 the plaintiff entered into an agreement of sale with the defendant No. 1 for purchasing plot C-5. The defendant No. 1 agreed to sell it to her for a sum of Rs. 326.25 p. The agreement of sale is evidenced by receipt of payment Ex. 43 under which on 27th August 1958 the plaintiff paid to the defendant No. 1 a sum of Rs. 51/as earnest money. On 3rd March 1959 the balance of 275.25 p. was paid by the plaintiff to the defendant No. 1. It is the plaintiffs case that thereafter the defendant No. 1 did not execute the sale-deed inspite of the plaintiffs attempts to get it executed by him. The plaintiff therefore filed Regular Civil Suit No. 1252 of 1959 in the Court of the Civil Judge (Senior Division) at Baroda for obtaining decree for specific performance of the said agreement.

(3.) The defendant No. 1 filed his written statement. He contended that though he had farmed out the plots and numbered them it was only a provisional lay-out because it was subject to the approval of the Municipality of Baroda. According to him since the Municipality of Baroda did not accord immediate approval to his lay-out of the plots he could not execute a sale-deed in favour of the plaintiff. All that he did was to register the intending purchasers of the plots. He further contended that plot C-5 had not been in existence at the time of the final lay-out because it had merged into a road. Therefore according to him no specific performance can be ordered against him.