MURGAPPA SANGAPPA WALE Vs. TUKARAM GENU GAVALI

JUDGEMENT

(1.) Heard Mr. Naik, learned Senior Counsel and Mr. Rane, learned Counsel for appellants and Mr. Datar, learned Counsel for respondent Nos. 1(B) to 1(D) at length. By this Appeal under section 100 of the Code of Civil Procedure, 1908 (for short 'C.P.C.'), the original plaintiff has challenged the judgment and decree dated 31-3-1987 passed by the learned 5th Additional District Judge, Solapur in Civil Appeal No. 262 of 1983. By that order, the learned District Judge partly allowed the Appeal preferred by respondent Nos. 1A to 1D. The learned District Judge has quashed and set aside the judgment and decree dated 8-11-1982 passed by the learned Civil Judge Junior Division, Mangalvedha in Regular Civil Suit No. 36 of 1978 and decreed the Suit instituted by the appellant for refund of earnest money and rejected his prayer for specific performance of contract. The parties shall, hereinafter be referred to as per their status in the trial Court.

(2.) The Second Appeal was admitted by this Court on 12-1-1989 on the following substantial questions of law:

(3.) It is the case of the plaintiff that Tukaram Genu Gavli, original defendant had agreed to sell land bearing Gat No. 144 admeasuring 2 H and 52 Acres situate at Mauje Bhalewadi, Taluka Mangalwedha, District Solapur (for short 'suit land') to the plaintiff for a total consideration of Rs. 3,000/-. The said Tukaram executed agreement of sale on 6-5-1976. On the same day, the plaintiff had paid entire consideration to Tukaram. The agreement recited that the permission of the Sub-Divisional Officer, Pandharpur Division is necessary and that the said permission will be obtained by Tukaram. The plaintiff will get the sale deed executed by incurring expenses and the possession was to be handed over at the time of execution of the sale deed. It also recited that if Tukaram fails to execute the sale deed, the plaintiff will be at liberty to approach the Competent Court for getting the sale deed executed. It is his further case that Tukaram had obtained loan and the said loan was not repaid by him. There was, therefore, encumbrances on the suit land. The case of the plaintiff is that since permission of the Sub-Divisional Officer was required under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short 'Act'), the possession was not handed over to him though he had paid the entire consideration and it was agreed by Tukaram to execute the sale deed and handover possession to him after obtaining the permission under the Act. The plaintiff was and is all along ready and willing to perform his part of contract. However, Tukaram did not perform his part of contract and avoided to execute the sale deed. When the plaintiff confronted him on that aspect, Tukaram declined to execute the sale deed. It is in these circumstances, the plaintiff instituted Suit on 6-4-1978 for specific performance of contract dated 6-5-1976.