HIMATLAL PURSHOTTAM SHAH Vs. SUPADU PAVANU HADGE

JUDGEMENT

(1.) The plaintiffs honest suit for specific performance has been dismissed by the lower Appellate Court on a ground involving hyper technicality, least warranted by any of the provisions of law.

(2.) The facts are as follows :--- The land in question (hereafter, the suit plot of land), S. No. 196/7, admeasures only 7 Ares, that is to say about 7 Gunthas. But it is situate within the municipal limits of Savda, Taluka, Raver. At the relevant time, it belonged to defendant No. 1 and original defendant No. 2 Topulu (who died pending this litigation). I will refer to both these persons as defendant Nos. 1 & 2 respectively. Defendants Nos. 1 and 2 executed a registered lease dated 6th July, 1962 in favour of the plaintiff. The period of the lease fixed was 10 years. There was an option to have a further renewal of the lease in favour of the plaintiff. But what is important, defendant Nos. 1 and 2 had also agreed that if they wanted to sell the particular plot of land to anyone the plaintiff would have the first right of purchase, meaning thereby the first right of refusal. In other words, the right of pre-emption was given to him. But what is even more important is that on 27-10-1969 defendant Nos. 1 and 2 in fact entered into agreement with the plaintiff for purchase of the suit plot of land for a sum of Rs. 1100/-. It must be stated, at the cost of repetition, that the plaintiff was already in occupation of the plot of land as a tenant and that this Agreement of Sale was executed by the land lord in favour of the tenant, who was already in possession. This has relevance with reference to the question as to whether the plaintiff had not agreed to pay adequate price to the defendants. As will be presently pointed out, it is not and cannot be the contention of any of the defendants that the price was inadequate. In spite of the Agreement dated 27-10-1969 in favour of the plaintiff defendant Nos. 1 and 2 executed a Sale Deed in favour of defendant No. 5 for sale of the same plot of land for a sum of Rs. 1200/-. This has quite some significance, because from that it will be seen that the price of Rs. 1100/-, for which the defendants had agreed to sell the plot to the plaintiffs, could not be held in any way as inadequate having regard to the fact that defendant No. 5, who was not in possession, has offered and paid only Rs. 1200/- for the same plot. A few more facts may be stated to show that the lease in favour of the plaintiff was a genuine transaction and, further, that he was actually inducted in possession of the suit plot of land. As observed by the lower Appellate Court itself in para 11 of its judgment, the Agreement of Sale as also the ease were taken into consideration by the Tahsildar at the time of re-grant of the said plot of land to defendant No. 1 and taking that into consideration, the re-grant was made by the Tahsildar on 23-2-1968 in favour of defendant No. 1 subject to the rights of the lessee. viz. the plaintiff. The plaintiff intended to install a Petrol Pump and carry on other allied business on the plot of land, and there is evidence led by him, which is accepted by the lower Court, that he had made all the necessary arrangement in that behalf. However, in view of the above mentioned Sale Deed dated 28th November, 1969 executed by defendant Nos. 1 and 2 in favour of defendant No. 5, the present suit as filed by the plaintiff against the defendants for specific performance of the said Agreement dated 27th October, 1969 as also for injunction restraining defendant No. 5 from interfering with the plaintiffs suit plot of land.

(3.) Defendant Nos. 1 and 2 came out with the usual pleas into their Written Statement :---