SHANTABAI Vs. MANAKCHAND

JUDGEMENT

(1.) This is the plaintiff's appeal against the decree passed by the trial Court dismissing the plaintiff's suit for specific performance of the agreement dt. 20-4-1971 for purchase of the suit land.

(2.) As will be presently pointed out, the defendant has not a leg to stand upon in the matter of his defence and the learned Judge allowed himself to be swayed by a totally false plea raised by the defendant as regards the responsibility to make application for conversion of the land to N.A. use and has dismissed the plaintiff's suit with minimum justification conceivable.

(3.) The facts are very simple. The defendant is admittedly the owner of the suit land Survey No. 140, Hissa No. 5B admeasuring 1 H. 65 A. situate at Nashik. On 20-4-1971 he entered into the agreement (Exhibit 36) with the plaintiff for sale of the land to him for the total price of Rs. 22,000/-. On the date of the agreement, admittedly, he had received the earnest money of Rs. 10,000/-. Since the land is an agricultural land, question arose about conversion of the same to N.A. use, question might also have arisen about the Collector's permission under S.63 of the Bombay Tenancy Act on the sale of the land to a non-agriculturist, if the plaintiff was a non-agriculturist. Since the defendant was the owner of the land, in normal circumstances, it would be his responsibility to get the user of the land changed from agricultural to non-agricultural because the plaintiff who had no right, title and interest on the land on the date of the agreement could not have made such an application to the authorities concerned. But it is not unusual that on occasions the purchasers take the responsibility for getting the user converted from the authorities concerned. But normally for such purposes a power of attorney is given by the vendor to the intending purchasers for making such application to the authorities. If this is not done in normal cases the vendor himself makes the application under the Land Revenue Code for the change of user of the land as also under the Tenancy Act for permission to sell the land to a non-agriculturist. But the point in this case is that as per cl.(4) of the Agreement, Exhibit 36 dt. 20-4-1971 the responsibility of making the application to the Collector for the change of the user of the land from agricultural to the non-agricultural was specifically taken by the defendant upon his shoulder. Even if an application was required to be made under S.63 of the Tenancy Act for sale of the land to the non-agriculturist, the defendant had taken responsibility in that behalf before the authorities upon his shoulder. This can be clearly seen from cl.(6) of the agreement. He also mentioned in the said cl.(6) that over and above the task of making the permission under the law. It is further clear that both Cls.(4) and (6) of the agreement leave no room for doubt that the responsibility of getting the requisite permission from the authority concerned for sale of the land was undertaken by the vendor-defendant himself. This fact has great bearing upon the question to be decided in this appeal because in his written statement, the defendant has denied this position whereas in his evidence he has gone back even upon that denial and has tried to set out an entirely third case and as will be presently pointed out even that third case is extremely brittle. After entering into the agreement for sale of the land to the plaintiff, it was necessary for the defendant to make the application to the authorities concerned for the N.A. permission and perhaps also for sale of the land to a non-agriculturist under S.63 of the Tenancy Act. It is the defendant's case that he got a draft of the application for conversion of the land to N.A. user prepared from the plaintiff's Advocate Shri Brahmecha. It is his case that Mr. Brahmecha prepared the draft application and that a copy of the same was handed over by Mr. Brahmecha to the defendant. The draft application purports to be dt. 1-5-1971 which is produced at Exhibit 43 in these proceedings. It is the defendant's further case that on 17-6-1971 he in fact made an application (Exhibit 52) to the Assistant Collector for what is called the N.A. permission. A document purporting to be a copy of the said application is produced at Exhibit 52 in this proceeding by the defendant. Thereafter, on 19-7-1971 the defendant wrote a letter to the plaintiff which has got great bearing upon the defendant's case in this proceeding. As will be presently pointed out, the letter throws a floodlight upon the falsehood of the case sought to be made out by the defendant in the Written Statement. By that letter the defendant has requested the plaintiff's husband to purchase the land in the first instance, i.e. to say, to get the Sale Deed executed in favour of the plaintiff in the first instance. He has further stated that getting the land converted to N. A. user is his own responsibility. It is stated by him further that plaintiff's husband was an agriculturist and that that was the reason why he had sold the land to him. But that is not all. In the letter it is further stated that if the plaintiff's husband was not prepared to purchase the land before it was converted to N.A. user, the defendant would mortgage his two or three houses. The gist of the request is that somehow or the other the plaintiff's husband should pay a further sum of Rs. 10,000/- to the defendant for his certain urgent needs which are mentioned in the letter. Really speaking, most of the letter is not very much relevant for our purpose. What is most relevant is that in this letter, Exhibit 55 dt. 19-7-1971 written just three months after the agreement of sale, the defendant had agreed in so many words that the responsibility of getting the land converted to any user was clearly upon the defendant himself. According to the plaintiff, in spite of this responsibility, the defendant did nothing in that behalf for a full period of one year and hence on 11-7-1972, the plaintiff gave a notice to the defendant calling upon him to perform his part of the agreement and stating that the plaintiff was always ready and willing to perform her part of the agreement. To this legal notice, Exhibit 38, the reply dt. 3-8-1972, Exhibit 40 was given by the defendant. The reply makes an interesting reading. In the third para of the reply, it is specifically stated that the defendant was to sell the land to the plaintiff after he himself obtaining the N.A. permission as also the permission under S.63 of the Tenancy Act but it is stated further in the said paragraph that the two applications dt. 17-6-1971 made to the Collector under the signature of the plaintiff as well as the defendant had been disposed of by the Collector. It was further stated that the plaintiff was ordered by the Collector to remain present before him for making statement and that the plaintiff did not comply with the order and did not remain present. It was further stated that in those circumstances, the conditions in the agreement of sale imposing the responsibility of change of the user of the land to the N.A. use and for getting permission for sale of the lands on the defendant were liable to be cancelled. It was stated lastly, in the said paragraph, that the said conditions (viz. that the defendant was responsible for getting the permission for N.A. user and for sale of the land) were rescinded by him by the said reply (dt. 3-8-1972). In the next paragraph, it was stated that the defendant was ready and willing to sell the lands to the plaintiff in the existing condition. He called upon the plaintiff to take the Sale Deed within 15 days from the date of receipt of the letter but it was further stated that before taking the Sale Deed, it was necessary for the plaintiff to obtain a certificate that she was an agriculturist or else, it was stated, the defendant was prepared to sell the land to such of the plaintiff's nominees who would be agriculturists. It was lastly stated that the defendant was prepared to return the amount of earnest money of Rs. 10,000/- to the plaintiff by cancellation of the agreement of sale. Lastly, it was mentioned that if the Sale Deed was not got executed within the period of 15 days, the agreement of sale will be deemed to have been rescinded. To this reply, a counter reply, Exhibit 41 was given by the plaintiff on 16-8-1972 in which the above allegations of the defendant were denied by her. It was stated therein that the application for permission was submitted to the Nashik Prant Officer but that the plaintiff did not know as to what happened to the said application thereafter. It was specifically stated that the plaintiff had received no order from the Collector for making any statement. It was further pointed out that the plaintiff was not an agriculturist to the knowledge of the defendant and that that was the precise reason why responsibility was undertaken by the defendant to get the permission of the authorities under S.63 of the Tenancy Act. All other claims and allegations in the defendant's reply were denied by the plaintiff by the said counter reply.