SHANTARAM BABU LONGALE Vs. BALARAM KRISHNA PATIL

JUDGEMENT

(1.) The appellant filed Regular Civil Suit No. 71 of 1981 against the defendants for specific performance of the contract and for declaration. The appellant/plaintiff has entered into an agreement on 18 th March, 1980 with the respondents/defendants for the purchase of the land bearing Gat No. 47, Hissa No. 1(a) situates at village Garpoli, Taluka Karjat, District Raigad admeasuring one acre and 20 gunthas, out of total land admeasuring 2 Hectares 40R. At the time of execution of the Agreement of Sale, the full consideration of amount of Rs.6,000/ was paid by the appellant to the respondents. However, the land was coming under the scheme of Bombay Prevention of Fragmentation and Consolidation Holdings Act, 1947 (hereinafter referred to as the 'said Act'. So the agreement was executed on the condition that the defendants would obtain requisite permission for transfer of the suit land from the Collector. Despite repeated request of the appellant for execution of the sale deed, the respondent did not take steps and the respondent/defendant no. 1 objected the possession of the plaintiffs in December, 1981. The defendant no. 1 on 18 th November, 1981 entered into a sale deed for entire land i.e. 2.27H with defendant no. 2. After having knowledge of this sale transaction between defendant nos. 1 and 2 of the entire land, the appellant filed a suit for specific performance of the contract dated 18 th March, 1980 and for declaration that transaction of the suit land between defendant nos. 1 and 2 is null and void. The appellant/plaintiff filed a suit for execution of the Agreement of Sale of the suit land. The defendant no. 1 and 2 both contested the claim. Defendant no. 1 though admitted the execution of the agreement dated 18 th March, 1980 with the plaintiff, he denied that it was a sale of the land but averred that it was a mortgage, therefore the possession of the land was given. The suit was decreed and the respondents were directed to perform the specific performance by executing the sale deed in favour of the appellant/plaintiff. Being aggrieved by the said judgment and order of the trial Court, the respondents filed Appeal No. 43 of 1986 and the said appeal was allowed, against which this Second Appeal is preferred.

(2.) Appeal was admitted. The substantial question of law formulated is as under:

(3.) The learned counsel for the appellant submitted that this is a suit for specific performance. The Agreement of Sale is not denied. The suit was filed within time. At the time of Agreement of sale, the possession of the land was handed over to the appellant. He submitted that the party was ready and willing to perform the contract. He submitted that the transaction being an agreement of sale cannot be covered under section 31 of the Act. The first Appellate Court has framed in all four points, out of that three points were decided in favour of the appellant. Point no. 4 whether the plaintiff is entitled to specific performance of the contract was decided against the appellant. The said point was decided in negative on the basis of Section 31 of the said Act. He submitted that the First Appellate Court has committed an error in holding that the transaction did not culminate into a sale for want of permission of the Collector. He submitted that the second buyer has challenged the order of the trial Court and the appellant, being the first buyer, is on the better footing than the second buyer. He relied on Section 2(4) i.e. definition clause and Section 3 of the said Act, which is about determination of local area under the Fragmentation Act. He submitted that it was necessary for the Government to declare or settle a standard area under section 4 and 5 of the said Act. He submitted that as fragment is not determined, bar under section 31 cannot be attracted. The learned counsel submitted that the bar is not applicable automatically unless standard fragment is determined. In support of his submissions, he relied on the decision of the Single Judge in Bapurao Ragho Dethe vs. Ganpati Vithu Rohankar, 1994 2 MhLJ 1504 on the point of sale of land and the determination of standard area under the said Act. The relevant portion in paragraph 8 is reproduced here below: