MARUTI KONDIBA GORAD Vs. NAMDEV SHAMBHU PATIL

JUDGEMENT

(1.) This second appeal, filed by the original plaintiff, challenges a decree of dismissal passed by the first appellate court, namely, the District Court at Solapur. The plaintiff's suit was for specific performance of an agreement for sale of immovable property. The second appeal was admitted on a substantial question of law, namely, whether time was of essence in relation to the suit immovable property under the contract in dispute. As per the arguments advanced by the parties at the hearing of the appeal, the question is altered to read as follows:

(2.) The suit property consists of one-half share of defendant no.1 in the suit land. It was submitted by the plaintiff that, on or about 10 October 1971, defendant no.1 agreed to sell this one-half share to the plaintiff (since deceased and now represented by the Appellants herein) for a sum of Rs.5,500/-. It was submitted that on the date of this agreement, the plaintiff paid a sum of Rs.1,500/- out of the total consideration to defendant no.1 as earnest money. It was submitted that the sale deed was to be executed on or before 31 March 1972 against payment of balance consideration. It was submitted that the date, when the sale deed was to be executed, namely, 31 March 1972, being a holiday, defendant no.1 had agreed to come to Sangola for execution of the sale deed on 30 March 1972. It was submitted that, accordingly, the plaintiff went to Sangola along with the balance consideration for execution of the sale deed, but defendant no.1 did not turn up and, thereafter, refused to perform the suit agreement for sale. The trial court decreed the suit and directed defendant no.1 to execute a sale deed of one-half share of the suit land in favour of the plaintiff against payment of Rs.4,000/-, which amount had already been deposited by the plaintiff in court. The learned District Judge, in an appeal from that order (Civil Appeal No.386 of 1982), set aside the judgment and decree passed by the trial court. Whilst the learned District Judge dismissed the plaintiff's claim for specific performance of the agreement for sale dated 11 October 1971 and possession of the suit land, he decreed the plaintiff's claim for refund of earnest money. This order has been challenged in the second appeal herein by the legal heirs of the deceased plaintiff.

(3.) The record of the case bears out that in the suit, as originally filed by the plaintiff on 13 August 1973, the plaintiff had prayed only for refund of earnest money. The plaintiff later on filed an application (Exhibit-19) for amending his plaint so as to include the relief of specific performance. That application was allowed on 10 December 1980. The plaint, thereupon, came to be amended. Originally, the plaintiff had only claimed the relief of refund of earnest money on the basis that in accordance with the provisions of Section 31 of Bombay Prevention of Fragmentation And Consolidation of Holdings Act, 1947 ("Fragmentation Act"), the plaintiff could not have claimed specific performance, since such performance would have entailed fragmentation of the suit land in breach of the provisions of that Act. It appears that the Fragmentation Act was amended, whilst the suit was pending before the trial court, inter alia by amending Section 31 and introducing Section 31AB in the Act. The amendment was by Maharashtra Act No.XLII of 1977. By this amendment, no transfer or sub-division of any land in contravention of Section 31, as it stood immediately before the commencement of the amending Act, made on or after 15th day of November 1965 and before the date of such commencement, was to be deemed to be void or ever to have become void merely on the ground that such transfer or sub-division, as the case may be, was effected in contravention of the provisions of that section as it stood before such commencement; it was deemed to be valid if such transfer or sub-division was in accordance with the provisions of Section 31 as substituted by the amending Act. The substituted Section 31 excepted certain lands from the purview of the restriction on fragmentation contained in sub-section (1) of Section 31. It was the case of the plaintiff that the suit land fell within these lands and thus, the prohibition against transfer or sub-division of land, without the previous sanction of the Collector, contained in sub-section (1), did not apply to the suit land with effect from 29 August 1977, and accordingly, the plaintiff was now entitled to seek specific performance of the suit contract for sale of property. The amended suit was resisted by the defendants inter alia on the ground of limitation so far as the relief of specific performance was concerned.