Mohanrao Tatoba Patil vs Pilu Maruti Patil And Ors.
2001 Latest Caselaw 838 Bom

JUDGMENT

P.S. Patankar, J.

1. The father of this appellant by name Tatoba and his three other sons by name Shamrao, Anandrao and Sarjerao and the appellant sold the lands Survey No. 130/9 admeasuring 2 acres and 2 gunthas and Survey No. 129/3 admeasuring 20 gunthas from village Gudhe by registered sale deed dated 6th March, 1968 for Rs. 5,000/- to respondent No. 1. It was sold for family necessity. Respondent No. 1 was put in possession. On the same date an agreement of reconveyance was executed in their favour by respondent No. 1 agreeing to convey the lands if the amount of Rs. 5,000/- was repaid within ten years. Consolidation Scheme came to be introduced in the Village in 1969 and it was completed in 1971. Out of those lands, three gat numbers came to be formed. They were given Block Nos. 1335, 1389 and 1517. Block No. 1335 came to be numbered as new Block No. 275. It admeasured 25 Acres.

2. Notice dated 23rd May, 1977 was served upon the defendant No. 1 (respondent No. 1) to accept Rs. 5,000/- and execute the reconveyance. However, the respondent No. 1 replied the notice on 7th June, 1977 and refused to reconvey the lands. Hence, the suit came to be filed for specific performance of the said deed of reconveyance and for possession. The suit came to be dismissed by the trial Court on 9-8-1989 holding that the plaintiffs were not entitled for reconveyance as change in the nature of the lands has taken place due to Consolidation Scheme and only 25 Ares of land i.e. Block No. 275 was allotted to respondent No. 1 under Consolidation Scheme. The appeal also came to be dismissed on the ground that considering the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, (hereafter referred to as "Consolidation of Holdings Act") the appellant is not entitled to claim reconveyance. This is challenged here.

3. At the admission of the appeal, both the sides were heard and this appellant restricted his claim to 25 Ares of land i.e. Block No. 1335 (new Block No. 275). The substantial question of law framed was whether the provisions of the Consolidation of Holdings Act would apply and whether the Appellant is entitled to get reconveyance of the said land. It is clear from the discussion of the appellate Court that it was contended on behalf of the respondent No. 1 that in view of the provisions of the Consolidation of Holdings Act, the appellant is not entitled to get reconveyance. The point framed by the Appellate Court itself is clear in that respect. The learned Counsel for the respondents did not press the same seriously. He only contended that in view of the provisions of section 31(1)(a), the appellant is not entitled to claim reconveyance. Section 31(1)(a) reads as under:---

"31(1) Notwithstanding anything contained in any law for the time being in force, no holding allotted under this Act, nor any part thereof shall save as otherwise provided in this section---

(a) be transferred, whether by way of sale (including sale in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) or by way of gift, exchange, lease, or otherwise; or"

However, those provisions do not apply in view of section 31(3) which is as under:---

"31(3) Nothing in sub-section (1) shall also apply to any land which is to be transferred---

......

(iii) to an agriculturist or agricultural labourer, in its entirety; or

......

Provided that no such transfer shall be made so as to create a fragment".

In the present case, what is claimed is the entire block or gat number. There is no question of creating fragment. There is no dispute that this appellant is an agriculturist. He has shown his avocation in the plaint as an agriculturist. Therefore, section 31(1)(a) of the Consolidation of Holdings Act has no application.

4. It is rightly submitted by the learned Counsel for the appellant that the learned Judge of the Appellate Court was wrong in holding that provisions of section 29(1) are not attracted here and distinguishing the judgment of the Apex Court Smt. Baikunti Devi & others v. Mahendra Nath, on the ground that it was relating to U.P. Consolidation Act, 1954. The learned Counsel for the respondent No. 1 has in fact not supported the said reasoning. But he contended that the appellant is not entitled to restrict his claim in the Appellate Court and it ought to have been done in the trial Court only. It is to be noted that the claim has been restricted to Block No. 1335 (new Block No. 275) admeasuring 25 Ares. After hearing both sides, and when it was found that this is the land which is in possession of the respondent No. 1 this was allowed. In my opinion, there is nothing wrong in restricting the said claim in this appeal. I reject this contention.

5. The learned Counsel for the respondent No. 1 next submitted that in view of section 12 of the Specific Relief Act, 1963, specific performance of part of the contract cannot be granted. No doubt section 12 opens with the words "Except as otherwise hereinafter provided in this section, the Court shall not direct the specific performance of a part of a contract." But sub-section (4) thereof reads as under:---

"12(4) When a part of a contract which, taken by itself, and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the Court may direct specific performance of the former part."

In the present case, as the blocks came to be formed and holding allotted under the provisions of the Consolidation of Holdings Act, Block No. 1335 (new 275) came to be allotted to respondent No. 1. It is quite separate and independent and capable of granting specific performance thereof. Since the other block were allotted to other parties, who have not executed the reconveyance, specific performance could not be ordered in that respect. However, it can be ordered in respect of this block i.e. Block No. 275 (earlier Block No. 1335) which is in possession of respondent No. 1. In addition, the learned Counsel for the appellant has stated that the appellant is prepared to pay the entire consideration of Rs. 5,000/- to respondent No. 1 for the same and he is not interested in deducting any amount from the said agreed consideration.

6. The learned Counsel for the respondent No. 1 then submitted that the appellant has not expressed his readiness and willingness to perform essential terms of the contract in the plaint and hence there is violation of section 16(c) of the Specific Relief Act and specific performance cannot be granted. No doubt, in the plaint, there is no clear averment made to that effect, but it is stated that this appellant was ready to pay Rs. 5,000/- as per the agreement and has given notice accordingly, but the respondents are avoiding to execute the reconveyance. This has required him to file the suit. In addition, in the trial Court, an issue was framed to the effect that whether this plaintiff (appellant) has performed his part of the contract and it has been answered in the positive. It was held that appellant was ready to perform his obligation under the agreement and has proved this. Further, this finding was not even challenged by the respondent No. 1 before the Appellate Court. Therefore, it cannot be said that the appellant (plaintiff) has not expressed or proved readiness and willingness to perform his part of the contract or essential terms of the agreement.

7. Hence, I pass the following Order:---

The judgment and Order passed by the Civil Judge, Junior Division, Patan, dated 9th August, 1989, in Regular Civil Suit No. 28 of 1978 and the judgment and order dated 9-2-1994 passed by the Vth Additional District Judge, Satara, in Regular Civil Appeal No. 527 of 1989 are set aside so far as Block No. 1335 (new Block No. 275) is concerned. It is held that the appellant-plaintiff is entitled for reconveyance of the said land. The respondent No. 1 is directed to execute the sale deed in favour of the appellant within two months from today. The appellant to deposit an amount of Rs. 5,000/- in the trial Court within one month from today. On such deposit being made, the sale deed to be executed. If the respondent No. 1 fails to execute the sale deed, then the appellant shall be free to get the same executed through Court.

Appeal partly allowed accordingly.