MAHADEO NATHUJI PATIL Vs. SURJABAI KHUSHALCHAND LAKKAD

JUDGEMENT

(1.) By this Second Appeal, the original defendant has questioned the reversing judgment delivered by the lower appellate Court. The husband of present respondent No.1 and father of other respondents filed Regular Civil Suit No. 51 of 1981 against present appellant for recovery of possession contending that he got possession on the strength of agreement to sale dated 20.5.1974 (Exh. 38) by paying Rs.500/- only and thereafter did not take any steps either to obtain permission from Sub-Divisional Officer or complete the sale formalities. The suit was opposed by present appellant pointing out that he was placed in possession in part performance. The learned trial Court found that the deceased owner had undertaken to obtain permission from the Sub-Divisional Officer and as said permission was not obtained, the present appellant could not have been blamed for not completing the contract and no breach was committed by the appellant . defendant. It, therefore, dismissed the suit.

(2.) The plaintiffs then filed Regular Civil Appeal No. 97 of 1983 in the Court of Additional District Judge, Khamgaon and said Court found that the contract had become enforceable and both parties were responsible for breach of contract. It found that the appellant . defendant was not ready and willing to perform his part of contract and therefore was not entitled to protection under Section 53-A of Transfer of Property Act. It relied upon the judgment of this Court in the case of Adinath Limbaji Navale vs. Policemen Housing Society , reported at 1991 Mh. L.J. 256. In the circumstances, it allowed the appeal partly, directed present appellant to hand over possession and also directed him to pay mesne profits and ordered enquiry into future mesne profits. This reversing judgment has been challenged in present Second Appeal.

(3.) In present Second Appeal only, this Court on 11.8.1992 while admitting the matter, referred the issue in Adinath Limbaji vs. Policemen Housing Society (supra) to larger Bench and the larger Bench has delivered the judgment on 2.11.1993. It is an admitted position that in view of said judgment, the appellant . defendant has to establish that he was ready and willing to perform his part of contract to claim protection under Section 53- A of Transfer of Property.