DENZYL WINSTON FERRIES Vs. ABDUL JALEEL

JUDGEMENT

(1.) This appeal is filed by the first defendant in O.S. No. 520 of 1983 on the file of the Additional Subordinate Judge, Ranga Reddy, district against the judgment and decree dated 28-7-1988 granting a decree for specific performance of the suit agreement dated 7-12-1979. In brief, the pleading are as follows : Plaintiff originally filed the suit against D. 1. Subsequently D. 2 and D. 3 have been added as additional defendants. Defendants 2 and 3 remained ex parte. The defendant is the absolute owner of Acs. 12.35 guntas of agricultural land bearing Survey Nos. 14 to 16 situated at Sikandarguda (Bandlaguda). Defendant executed an agreement of sale Ex.A. 1 dated 7-12-1979 in favour of the plaintiff to sell the suit land for consideration of Rs. 39,000/-. Rs. 2,000/- was paid as advance by the plaintiff and the defendant delivered physical possession of the property on the date of the agreement. It was agreed that the defendant shall execute the sale deed and get the same registered within three months. The plaintiff requested the defendant to receive the balance of sale consideration and execute the sale deed. D. 1 pleaded that he could not make ready the necessary documents to enable him to execute the sale deed and on 5-3-1980, by mutual consent, time was extended up to 7-6-1980. In spite of the extension, D. 1 did not obtain the necessary documents and failed to complete the transaction. D. 1 informed the plaintiff that he was going to Dehradun and requested the plaintiff to pay Rs. 5,000/- to his wife and this amount has to be adjusted towards the balance of sale consideration. Plaintiff paid the amount by way of a crossed cheque bearing No. 102212 drawn on the Andhra Bank on 7-6-1980. The cheque was drawn in favour of the defendant's wife. She gave a stamped receipt. After D. 1 returned from Dehradun, the plaintiff again requested him to complete the transaction. D. 1 assured the plaintiff that there is no necessity for any apprehensions and that he would complete the transaction as per the contract. On 14-7-1980, D. 1 made an endorsement in his own handwriting acknowledging receipt of Rs. 5,000/- by his wife and by mutual consent, the time for completion of the transaction was extended up to 7-6-1981. D. 1 failed to take steps to complete the transaction. Every time a request was made, he was postponing things. The plaintiff has always been ready and willing to perform his part of the contract. As D. 1 failed to obtain the necessary documents to complete the sale transaction, the plaintiff obtained the Encumbrance Certificate on 30/12/1980. He filed an application on behalf of D. 1 before the Hyderabad Urban Development Authority for issue of land use certificate and obtained the certificate dated 3-1-1981. He delivered the copies of those two documents to D. 1. The plaintiff purchased the stamp papers and got an affidavit prepared for obtaining necessary clearance and permission from the Special Officer and Competent Authority, Urban Land Ceiling, Hyderabad. He also obtained the revenue pass-book from the Village Officer. The certificate issued by the Urban Development Authority clearly mentions that the land is earmarked for residential purpose and if it is intended to be sold for non-agricultural purpose, approval for the lay-out shall be obtained from the competent authority and permission to sell for non-agricultural purpose shall be obtained from the authority under the Act. The plaintiff wanted to purchase the land for agricultural purposes. D. 1 wanted to sell the land to others due to escalation in prices. He failed to execute the sale deed and got it registered. Then the plaintiff issued a notice on 24-1-1981 and a second notice on 5-2-1981. D. 1 gave a reply on 9-2-1981 with various false allegations. The plaintiff is in physical possession of the land from the date of the contract. D. 1 claimed in his reply notice that he could not obtain permission from the Urban Land Ceiling Authority as the Master Plan has been extended to the lands which are covered by the sale agreement. D. 1 failed to obtain the permission from 7-12-1979. This clearly indicates that the defendant is trying to resile from the contract. He failed to file the declaration under S.6 of the Urban Land (Ceiling and Regulation) Act, 1976. He only applied for permission after receiving the plaintiff's notice. It was rejected by the department and the first defendant was directed to file a declaration immediately. The first defendant illegally cancelled the contract and sent a demand draft for Rs. 7,000/- to the plaintiff. The unilateral cancellation of the contract is not binding on the plaintiff. The plaintiff is always ready to perform his part of the contract. He has deposited the balance of sale consideration in the Court. Hence the suit may be decreed for specific performance and a mandatory injunction may be granted directing the defendant to obtain exemption and clearance under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976.

(2.) The suit is resisted by D. 1 raising the plea that possession was not delivered to the plaintiff and the amount of Rs. 7,000/- which was paid by the plaintiff was returned through a demand draft and the plaintiff received it. The amount was returned as the request of the defendant for permission was rejected by the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976. This defendant took all necessary steps for completing the sale transaction. He applied and obtained the revenue records and submitted them before the competent authority. The authority rejected the request of the defendant by Memo No. 77 dated 31-1-1991. This fact was intimated to the plaintiff through a notice and the amount paid by him was returned to him. It is not correct to allege that D. 1 is postponing the matters from time to time. It is not in the hands of this defendant to execute the sale deed without obtaining necessary permission from the competent authority. The contract entered into with the plaintiff is void as it violates the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, and unless necessary exemption is granted, it is impossible for this defendant to execute the sale deed in favour of the plaintiff. This defendant has taken all necessary steps to obtain the permission but as the permission was rejected, the contract has become impossible of performance.

(3.) After the suit agreement was entered into, Government issued G.O. No. 391 dated 23-6-1980 extending the Master Plan to non-municipal areas of Hyderabad and the suit land is earmarked for non-agricultural purposes in the Master Plan. As it is earmarked for non-agricultural purposes, permission to alienate was rejected. So D. 1 duly cancelled the agreement of sale and returned the amounts received as advance. The defendant alone is in possession of the suit land. Plaintiff's name is nowhere mentioned in the revenue records. The suit of the plaintiff has to be dismissed.