AMBADAS KHANDERAO Vs. SHAIKH RAZAQ

JUDGEMENT

(1.) This appeal is filed by the original defendants challenging the decree passed by the Joint Civil Judge, Junior Division, Nasik in Regular Civil Suit No. 174 of 1984 in favour of the plaintiff/respondents and confirmed by the learned 6th Additional District Judge, Nasik while dismissing Regular Civil Appeal No. 31 of 1986 filed by the defendants.

(2.) Admitted facts are that original defendant No. 5 Khanderao was owner of the land Survey No. 24/12 admeasuring 30 Ounthas situated at Mauje Vihitgaon, Taluka Nashik which is now part of Municipal Corporation, Nashik. Defendant No. 5 Khanderao had got the land mutated in the nature (sic name) of his four sons, who are defendant Nos. 1 to 4. The plaintiffs, who are brothers inter se, filed suit for specific performance of contract against the defendants. According to them the defendants had agreed to sell the suit land to them for consideration of Rs. 15,000/- and amount of Rs. 6,000/- was paid as earnest money and balance amount was to be paid at the time of execution of sale deed. Accordingly, an agreement for sale was executed on 17.7.1978. As per terms of the contract the defendants were to obtain permission for sale under Urban Land Ceiling Act as well as under section 63 of the Bombay Tenancy and Agricultural Lands Act (Tenancy Act, in brief). According to the plaintiffs, the cost of obtaining the permission from both the Competent Authorities was to be borne by the defendants while cost of getting the sale deed registered would be borne by the plaintiffs. Permission under the Urban Land Ceiling Act was obtained on 24.8.1978. However, the defendants did not take any steps to secure permission under section 63 of the Tenancy Act and thus, they committed breach of the contract. The plaintiffs firstly issued firstly public notice and thereafter, they issued notice to the defendants in the year 1983. However, the defendants avoided and finally refused to execute sale deed. The plaintiffs contended that they have been always ready and willing to perform their part of the contract, that is to pay the balance amount and to get the sale deed executed, however, the defendants were not ready. Therefore, they filed the suit for specific performance of the contract. Alternatively, they also contended that if the decree for specific performance cannot be granted, the amount of Rs. 6,000/- be directed to be refunded by the defendants with interest thereon.

(3.) The defendants contested the suit by filing written statement wherein they denied to have entered into any agreement for sale with the plaintiffs and to have received any amount from them as earnest money towards the alleged transaction. They also denied that they were to obtain any permission which would be necessary for execution of sale deed. According to them, the market value of the land was more than Rs. 40,000/- and therefore, it was not possible for them to enter into an agreement for sale of the suit land for meager amount of Rs. 15,000/-. According to them, defendant No. 5 was in need of money to meet certain expenses and therefore, he approached one Haroon Seth, who is said to be brother-in-law of the plaintiffs. Haroon Seth agreed to advance the amount however, he wanted defendant No. 5 to execute some documents as security of the said amount. Defendant No. 5 received the amount of Rs. 6,000/- from Haroon Seth as a loan and also signed on blank paper, and handed over the same to Haroon Seth. It was agreed that on repayment of the amount, the said paper bearing signature of defendant No. 5, would be returned to him. Later on, defendant No. 5 approached Haroon Seth and offered to repay the amount of Rs. 6,000/-and demanded the said signed document but Haroon Seth avoided to receive the amount and to hand over the document saying that he had to search out the said document and that when the document would be traced out, he would return to him. Due to sharp increase in the prices as a result of passage of time, Haroon Seth got prepared the false deed of agreement in favour of the plaintiff and they have filed the suit falsely misusing that document. It was further contended that defendant No. 4 Tulshiram was a minor at the time of alleged agreement and no permission was obtained from the Competent Court for sale of his share in the suit property. By making an amendment to the written statement, they also pleaded that the land was a Patil Inam land and could not be transferred without obtaining necessary permission and without depositing 50% of the market price of the land with the Government. On all these grounds, the suit was contested. According to them, because of these reasons, the suit is liable to be dismissed.