PANDU ABA CHAUGULE Vs. LAXMAN DHONDI PATIL

JUDGEMENT

(1.) SURVEY No. 47 of Shiwara Taluka, Shahuwadi, in the former Kolhapur State originally belonged to Ramchandra Balvant Shirolkar who will hereafter be referred to as 'the first defendant. The first defendant agreed to sell the land for Rs. 6,300/- to the plaintiffs by agreement, dated 10-12-1945. The plaintiffs paid Rs. 300/- as earnest and agreed to pay the balance within a month from the date of the agreement. On 30-1-1946 the first defendant sold the land for Rs. 6,000/- to defendants 2 and 5. The plaintiffs then filed Special Civil Suit No. 1 of 1946 in the Court of Shrimant Himmat Bahadur, F. C. Sub-Judge against defendants 1 to 5 for a decree for specific performance of the agreement, dated 10-12-1945. The plaintiffs alleged in the plaint that they had offered to pay the balance due by them within the time stipulated but the first defendant refused to accept the same and that the first defendant sold the property to defendants 2 to 5 who had notice of the agreement of sale. The learned "trial Judge on a consideration of the evidence held that defendants 2 to 5 were not "bona fide purchasers without notice of the agreement, dated 10-12-1945," that the balance of the consideration of Rs. 6000/- payable by the plaintiffs to the first defendant under that agreement was not payable at Kolhapur and the plaintiffs did not fail to pay the amount within the stipulated period and that the plaintiffs were entitled to enforce specific performance of the agreement. On 26-7-1950, the learned Civil Judge Senior Division, at Kolhapur passed a decree for specific performance of the agreement against the first defendant and also passed a decree in favour of the plaintiffs in ejectment against defendants 1 to 5. Against that decree defendants 2 to 5 have appealed to this Court.

(2.) THE suit was originally filed on 19-2-1946, in the Court of Shrimant Himmat Bahadur. During the pendency of the suit the Kolhapur State merged with the Indian Union and the jurisdiction which was exercised by the Court of Shri Himmat Bahadur devolved upon the Court of the Civil Judge, Senior Division, Kolhapur. The suit was then renumbered as Suit No. 191 of 1949 and was tried by the Civil Judge, Senior Division. The Bombay Tenancy and Agricultural Lands Act, 1s43, was made applicable to the former Kolhapur State territory as from 1-5-1949. It was contended before the learned trial Judge that the Bombay Tenancy and Agricultural Lands Act having been made applicable to the land in dispute, a decree for specific performance of the agreement could not be passed in view of the provisions of Sections 63 and 64 of that Act. The learned trial Judge was of the opinion, having regard to Section 89 (2) (b) (ii) of the Act, that the rights acquired by the plaintiffs under the agreement as also the jurisdiction of the Civil Court to decide the suit were preserved notwithstanding the enactment of the Bombay Tenancy and Agricultural Lands Act. It was also urged before the learned trial Judge that the second defendant was a protected tenant of the suit land and was entitled to apply to the Tenancy Court for a declaration that he could not be evicted in execution of a decree of the Civil Court. The plaintiffs conceded that liberty in that behalf may be reserved in the decree. The learned Judge, therefore, by his decree provided that if the second defendant made an application to the Tenancy Court-concerned that he was not liable to be evicted from the suit land, the plaintiffs will not execute the decree for possession and in a manner inconsistent with the final result of the application.

(3.) IN this appeal filed by defendants 2 to 5 only one contention is advanced in support of the appeal. It is urged that since the application of the Bombay Tenancy and Agricultural Lands Act to the land in dispute the Court could not pass a decree for specific performance in violation of the terms of Ss. 63 and 64 of the Act. In our view, that contention must be accepted. Section 63, Bombay Tenancy and Agricultural Lands Act, which save as provided in the Act renders void all sales, gifts, exchanges or lease of any land or interest therein in favour of a person who is a non-agriculturist, prevents the Civil Court from passing a decree for specific performance of the agreement to sell in favour of a non-agriculturist. Section 64 (3) of the Act declares all sales in contravention of Section 64, void, and the Court cannot pass a decree for specific performance which violates that provision. Section 64 prescribes the procedure to be followed by a landlord' who Intends to sell agricul tural land. The section also sets out the sequence of different classes of agriculturists to whom the land must be offered for purchase and at the price fixed as reasonable price by the Tribunal appointed in that behalf. It is provided by Sub-section (3) that "any sale made in contravention of this section shall be void". Evidently, the Legislature having by Ss. 63 and 64 rendered sales in contravention of those sections void, the sale must be regarded as void whether it is in pursuance of a decree passed by the Civil Court or in fulfilment of an obligation under an agreement between the parties. Section 63 in terms provides that a sale (including a sale in execution of a decree of a Civil Court) in favour of a non-agriculturist shall be invalid. If, therefore, the sale takes place in contravention of the provisions of Section 63 or S. 64 of the Act even in pursuance of a decree of a Civil Court, that must, in view of the provisions of the Act, be regarded as void and such a sale confers no title upon the purchaser. A sale in contravention of Sections 63 and 64 being void, an agreement to sell property, which if carried out would result In a sale, would not give rise to any liability to sell property enforceable at law.