Abdul Dadamiya Shaikh vs Jagannath Murlidhar Rathi Since ...
2002 Latest Caselaw 271 Bom

JUDGMENT

J.G. Chitre, J.

1. This appeal has been admitted on the following substantial questions of law :-

(1) "Whether having held that the Appellant- Plaintiff had become purchaser under section 32 of the Tenancy Act, the courts below ought to have held that proceedings under section 32-G and 32-P of the Bombay Tenancy Act were void ab initio when the findings recorded clearly indicate that Dadamiya the father of the plaintiff did not hold land above the ceilling limits?"

(2) "Whether the Courts below wrongly relied upon Section 56 of the Indian Contract Act to hold that was an impossibility of performance of contract as the land was in excess of the ceiling limit, the specific performance of which was asked for. It is not open to the Respondents to deny the specific performance of valid Agreement and if on such performance the plaintiff held land in excess of ceiling, it is for the Government to take excess land and the Respondents will have no authority in that behalf."

While admitting the appeal for final hearing on 10.10.1988, the Court had pointed out that substantial questions of law are embodied in above mentioned ground nos. 7 and 8 as they have been quoted.

2. Mr. Rege, counsel appearing for the appellant submitted that there was no substance in the challenge put by the appellant in respect of challenge put to the validity of the proceedings initiated under provisions of Section 32-G and 32- P of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as Act for convenience) which has been covered by the ground mentioned at Sr. No. 7 of the appeal memo. Therefore, according to him, when the original defendant Jagannath Murlidhar Rathi has become the owner of the suit land by virtue of the proceedings initiated in view of provisions of Section 32-G and 32-P of the Act, he had the authority to sell the land in question to the appellant by virtue of the agreement in question. But the courts below dismissed the suit by holding that the original plaintiff-the appellant, was not entitled to have the decree for specific performance by virtue of the said agreement which took place between them on 6.6.1962.

3. In view of the submissions advanced as quoted above by counsel for the appellant Shri Rege, the entire record will have to be seen in context with the judgments and orders passed by the two courts below. For that purpose, some facts will have to be quoted which would be giving the idea of the controversy in issue. The original defendant Jagannath Murlidhar Rathi who is being represented by his LRs. was owner of the suit land bearing Gat No. 74 admeasuring 1 hecter and 15 Ares situated in village Nandur- Madhmeshvar, Taluka Niphad. The father of the present plaintiff-appellant named Dadamiya was the tenant of the said land prior to 1.4.1957 (tillers day). There was an agreement between the deceased Jagannath Murlidhar Rathi and deceased Dadamiya dated 23.3.1956. By virtue of that agreement, deceased Jagannath Murlidhar Rathi had agreed to sell that land to Dadamiya and it was agreed between them that the deceased Jagannath Murlidhar Rathi was to obtain permission for sale of the said land to Dadamiya. At that time, there was a proceeding pending before the Mamlatdar and ALT in view of provisions of Section 32-G in respect of the said land as after the Act came in force Dadamiya acquired the status of "deemed purchaser". However, the original plaintiff averred that Dadamiya was confined to bed and, therefore, sale could not take place. It did not take place finally because Dadamiya died in the year 1962. After the death of Dadamiya, the present plaintiff entered into an agreement with deceased Jagannath Murlidhar Rathi on 6.6.1962 for the sale of the same land and even at that time also the proceedings in view of section 32-G of the Act were in continuation before the Mamlatdar and ALT, Niphad. In the said agreement it was agreed that the said land was to be sold by the deceased Jagannath Murlidhar Rathi to Abdul son of Dadamiya on payment of consideration of Rs.1500/- and as per his averment, the said amount was to be paid in four instalments. It is the case of the present appellant - the original plaintiff that on one occasion he had paid Rs. 1000/- to deceased Jagannath Murlidhar Rathi and on another occasion he had paid Rs. 100/- to him. Thus, Rs. 1100/- was paid and Rs. 400/- were to be paid and deceased Jagannath Murlidhar Rathi was to execute the sale deed in his favour.

4. The said tenancy proceeding was decided against the appellant Abdul. He preferred an appeal before the S.D.O. concerned and the concerned S.D.O. also dismissed his appeal. He challenged it by filing a revision application which was also dismissed by the M.R.T. The land reverted to Jagannath Murlidhar Rathi by virtue of Section 32-P of the Act. A notice was served on the appellant Abdul Dadamiya in the year 1980 whereby he was directed to hand over the possession of the suit land to Jagannath Murlidhar Rathi. Instead of handing over the possession of the suit land to Jagannath Murlidhar Rathi, Abdul Dadamiya filed the present Civil Suit in the Court of Civil Judge, J.D. Niphad with two prayers (i) that the Court be pleased to declare that the said proceedings which was initiated in view of provisions of Section 32G and 32P as void and illegal and (ii) the Court be pleased to direct specific performance of the said agreement and be pleased to direct the original defendant Jagannath Murlidhar Rathi to execute the sale deed in favour of the appellant Abdul Dadamiya in view of the said agreement dated 6.6.1962.

5. Deceased Jagannath Murlidhar Rathi denied the obligation of executing the sale deed in favour of Abdul Dadamiya. He contended that the said agreement was not enforceable in law.

6. The parties adduced the evidence. The trial Court after appreciating the evidence on record in view of the arguments submitted, recorded following main findings against the present appellant.

(a) The original plaintiff did not prove that he was ready and willing to purchase the said suit land.

(b) The suit was barred by limitation.

(c) The said agreement was not enforceable in law as it was purporting to achieve impossible obligation to be performed by Jagannath Murlidhar Rathi.

(d) The Civil Court did not have the jurisdiction to set aside the proceedings which was initiated in Revenue Court in view of provisions of Section 32-G and 32-P of the Act.

7. Shri Rege pointed out by reading the plaint that there has been averment in the plaint as required by section 16(c) of the Specific Relief Act, 1963 (hereinafter referred to as Specific Relief Act for convenience) that the appellant was ready and willing to purchase the said land. He submitted that though there was an averment to that effect in the plaint and the general reading of the plaint was indicating that the appellant was ready and willing to perform his part of the agreement, both the Courts below committed error in recording a finding that the appellant was not ready and willing to perform his part of the agreement. Shri Soni made his best but could not dislodge this submission advanced by Shri Rege. He pointed out the lack of evidence in this context. This Court comes to a conclusion after examining the evidence on record in view of the submissions advanced by the counsel appearing for the rival parties that the two courts below committed an error in coming to the conclusion that the appellant was not ready and willing to perform his part of the said agreement. It is to be noted that not only the averment in the plaint simplicitor is to be seen which is directing towards the provisions of section 16 (c) of the Specific Relief Act, but, the averments made in the plaint are also to be considered as a whole. The impact created by such averments has to be seen. Furthermore, the conduct of the parties in that context has to be seen for the purpose of coming to the conclusion whether in such a suit the plaintiff proves his readiness and willingness to perform his part of the agreement or otherwise. It is to be noted here that it has not been disproved by the Respondent Jagannath Murlidhar Rathi that payment of Rs. 1000/- and Rs. 100/- was made by appellant Abdul Dadamiya on two occasions. He was under the obligation of making the payment in four instalments in respect of the consideration for purchasing of the said land and, therefore, the payment made by those two instalments will have to be treated as the acts committed by the appellant for performing his part of the said agreement. If that is taken together with the specific averment made in the plaint and the general tone of the averments made in the plaint as a whole, there was irresistible conclusion concluding that the appellant was ready and willing to perform his part of the agreement. The trial Court had committed the error in recording that finding against the appellant. The first appellate court, though this point was agitated before it, though a point for determination was formulated by it, did not go for discussion for adjudicating over that point. Thus, on this point two Courts below had committed the procedural error causing miscarriage of law and, therefore, this court interferes in the said finding of fact recorded by those Courts by exercising power in view of provisions of section 100 of Civil Procedure Code, 1976 (hereinafter referred to as CPC for convenience).

8. Shri Rege submitted that the trial Court should have granted the specific relief of the execution of the sale deed in pursuance of the said agreement dated 6.6.1962 and on account of the failure on the part of the trial Court in that context, the first appellate court should have allowed the appeal of the appellant by granting a decree in his favour. For the purpose of demonstrating the incorrectness, perversity and illegality of the judgments of those two courts below impugned by this appeal, Shri Rege pointed out the provisions of section 43 of the Transfer of Property Act, 1882 (hereinafter referred to as the T.P. Act for convenience). In view of that it would be necessary to quote as to what section 43 of the T.P. Act reads :-

"Where a person fraudulently or erroneously represents that he is authorized to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsist.

Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option."

Repelling the submissions advanced by Shri Rege, Shri Soni submitted that for applicability of section 43 of the T.P. Act what is necessary is that the vendor should represent fraudulently or erroneously. In this case there is no evidence on record at all to show that Jagannath Murlidhar Rathi ever represented fraudulently that he was the owner of the said land on 6.6.1962. He further submitted that there is nothing on record to show that he erroneously represented him to be the owner of the said land when the said agreement was executed. On the contrary, Shri Soni pointed out that both Abdul Dadamiya and Jagannath Murlidhar Rathi were knowing very well that proceeding was going on in revenue court in view of provisions of section 32G of the Act which was to confer the ownership not on Jagannath Murlidhar Rathi but on Abdul Dadamiya who happened to be tenant of the suit land prior to the tillers day i.e. 1.4.1957. When that was so, how there could be the inference that Jagannath Murlidhar Rathi represented fraudulently or erroneously that he was the owner of the said land? On the contrary, as submitted by Shri Soni, the said agreement was leading towards the object which was impossible. According to Shri Soni, the said agreement was the agreement which was dependent on happening of an uncertain event and, therefore, was not enforceable in law. He made reference to Section 56 of the Indian Contract Act, 1872 (hereinafter referred to as the Contract Act for convenience). Section 56 of the Contract Act provides that an agreement to do an act impossible in itself is void. In this context, provisions of section 24 of the Contract Act will have to be also considered. Section 24 speaks that if any part of a single consideration for one or more objects, or any one or any part of any one of several consideration for a single object, is unlawful, the agreement is void.

9. It is pertinent to note that by virtue of the provisions of the Act, one who physically and peacefully cultivates the land on tillers day i.e. 1.4.1957 is deemed to be a purchaser and by virtue of that is entitled to purchase that land by virtue of section 32G. Undoubtedly, both Dadamiya and his son Abdul were knowing at the time of execution of those two agreements that by virtue of statutory provisions of the Act Dadamiya was to become the owner of the suit land and in view of that, the object of the said agreement was leading towards the object which was unlawful and the consideration which was accepted for that agreement was for the object which was unlawful. At the time of the said agreement Dadamiya, Abdul and Jagannath Murlidhar Rathi were knowing that a proceeding was in continuation before the revenue court in view of provisions of Section 32 G wherein the purchase price of the said suit land was to be determined and a direction was to be issued in pursuance of that proceeding declaring the purchase price for which Dadamiya was entitled to purchase that land.

10. Shri Rege has submitted that all of them were knowing at the time of both the agreements that Dadamiya was in the excess of the land in view of provisions of the Ceiling Act and therefore he would not have been entitled to purchase the land which was in excess of the ceiling limit and, therefore, Dadamiya and Abdul had entered into the said agreement for the purposes of retaining the right to purchase the said land in comparison to other lands. Shri Rege further submitted that at that time some proceedings were going on against Dadamiya initiated by some landlords of the lands of which Dadamiya was the tenant for restoration of the said land to landlords. Therefore, Dadamiya was not to become the owner of the suit land and on account of that those agreements were executed and, therefore, the purpose of those agreements was very much lawful and was not impossible. This Court does not agree with the submissions advanced by Shri Rege on these points. If Dadamiya was that way sure, what was the need to go for an agreement for purchasing the said land and thereafter to revive it on 6.6.1962? There may be the desire lurking in his mind to protect his interest from being hit by the provisions of the Ceiling Act but as a matter of settled law, the agreement which is in question has to be seen as it is. It was nowhere spelled out that way. Therefore, the explanations which have been advanced by Shri Rege for justifying the case of the appellant lose the value and worth so far as the case of appellant is concerned. When two persons go for an agreement which is based on varying consideration, it would become necessary to find out the necessary intention expressed by them by way of the agreement executed between them. The agreement in question dated 6.6.1962 did not spell out anything as suggested by Shri Rege. It simply indicates that Abdul was to pay some of Rs. 1500/- as consideration to Jagannath Murlidhar Rathi and Jagannath Murlidhar Rathi was to sell the suit land to him after receiving the said consideration. When such two persons enter into an agreement of a commercial nature for sale of a property, it would be very much necessary to see whether the executor was the owner of the land which was to be sold in pursuance of the said agreement. It will have to be seen whether there was in reality a vendor acquiring the right of ownership which he could have sold to vendee in exchange of the consideration. When that is not so, such an agreement would be nothing but an agreement which is leading against performance of an impossible act, an uncertain act.

11. Though it is true in this case that after the said proceedings initiated in view of provisions of Section 32G was over, the proceedings started in view of provisions of Section 32G of the Act and that ended in Jagannath Murlidhar Rathi getting the ownership of the said land and it ended in a notice being served on Abdul in the year 1980 directing him to hand over the possession of the suit land to Jagannath Murlidhar Rathi and that resulted in filing of the suit. Shri Rege has submitted that in the year 1980, vendor Jagannath Murlidhar Rathi had acquired the ownership of the suit land and, therefore, he was having the capacity to perform that agreement and, therefore, he would be estopped by rule of estoppel and in view of provisions of Section 43 of the T.P. Act. This Court does not uphold this submission advanced by Shri Rege because the important ingredients which have been embodied in provisions of section 43 are lacking firstly in indicating the fraudulent representation by such vendor and secondly in indicating the erroneous representation made by the vendor. When the evidence does not establish that vendor had made a fraudulent representation or had made an erroneous representation, he cannot be estopped from disowning the obligation indicated by the agreement in dispute in view of provisions of Section 43 of the Act. The restriction imposed by provisions of section 43 of the T.P. Act is pivotally dependent on these two important ingredients of Section 43. If they are lacking, there would be no fetters of estoppel against such vendors if the litigant attempts to take the shelter of the provisions of section 43 of the T.P. Act.

12. The view taken by this Court in this context is strengthened by the view taken by the Patna High Court Division Bench in Ladu Narain Singh v. Goberdhan Das and others, reported in AIR 1925 Patna 470 wherein the Division Bench of the Patna High Court held that there is rule of law which underlines Section 43 of the Transfer of Property Act that as between the transferor and transferee, the former cannot plead subsequent title to the property transferred, he had induced the transferee to pay money for the transfer. The principle on which this rule is based is an extension of the well known rule of estoppel, and in order that the rule should apply it must be established that there was a representation made by transferor which was believed by the transferee and that the latter relying on the truth of that representation changed his position to his detriment. The rule is not applicable where it is shown that there was no representation made by the transferor or that the transferee could not have been misled by any representation.

13. The intention behind enacting section 43 of the T.P. Act is to restore the interest acquired by the intended vendor and intended vendee on account of the happening of some events which would clothe the vendor with title of the property which he wanted to sell to intended vendee by virtue of the agreement in question. It was for the purposes of rectifying the error which might have taken place on account of the erroneous misrepresentation. The intention behind enacting that provision was to make good the loss caused to such intending vendee on account of the fraudulent representation made by such intending vendor in a case in which on his such fraudulent representation the said intending vendee had acted on and had parted with consideration in good faith. The law wanted to protect the interest of such deceived vendee and, therefore, such deceitful vendee was estopped from resiling from the obligation created by such agreement which has come in dispute. Therefore, for applicability of Section 43 in relation to those two ingredients quoted above, the vendee must have also acted in good faith and must have parted with consideration in good faith relying upon the said misrepresentation made by such deceitful vendor. In the absence of the important ingredients of section 43, such vendor could not be estopped from refusing performance of the said contract.

14. In the present case, the evidence on record is not proving that the deceased Jagannath Murlidhar Rathi had made such fraudulent or erroneous representations and appellant Abdul Dadamiya had acted on those representations which were fraudulent or erroneous and had parted with the consideration. The evidence on record amply proves that all of them were fully knowing that a proceeding was in continuation in the revenue court in respect of the involvement of section 32G. By co-incidence only, the land reverted to Jagannath Murlidhar Rathi by virtue of Section 32 P and he became owner of the suit land. As he became the owner of the suit land, the appellant Abdul Dadamiya thought it better, proper and profitable to go for filing a suit for specific performance of the agreement which took place between them on 6.6.1962. When that was the state of affairs, the appellant had legally no right to demand the specific performance of such an agreement.

15. Section 20 of the Specific Relief Act provides a discretion to the Court for decreeing specific performance sought by the plaintiff. Sub-section (1) provides that the jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Sub- section (2) provides the cases in which the court may properly exercise the discretion in not decreeing the specific performance. It is pertinent to note that it is studded with two explanations also. But even then that is not the limit to the discretion which Court can exercise while deciding the suit which is revolving around the prayer for specific performance. For coming to a conclusion whether the specific performance should be granted or rejected, court has always to be circumspect and has to advert its judicial attention towards the facts and circumstances of each case. A rational decision has to be taken for coming to the conclusion where the specific performance is to be granted or rejected and the Court would be always guided by the examples put in section 20 of the Specific Relief Act for guidance and beyond that also the Court has to see for deciding whether a specific performance is to be granted or is to be rejected.

16. If the plaintiff is seeking a specific performance for defeating a proceeding initiated lawfully in a court of competent jurisdiction, the Court has to reject specific performance by dismissing the suit meant for that. If the specific performance is sought for the purpose of defeating the object achieved as a result of lawfully initiated proceeding in a court of competent jurisdiction, the specific performance has to be rejected. None can be permitted to defeat the legal course or the fruits achieved by a litigant as the result of a legal proceeding. When the specific performance is sought for giving effect to an agreement, the purpose of which is to defeat the provisions of law, the specific performance is to be rejected. If the performance of an agreement is to give a go by to legal provisions by cleverly drafted words or by cleverly thought advice, specific performance is to be rejected. If the specific performance is sought for the purpose of getting away from the statutory result of the legal provisions, specific performance is to be rejected. If the performance of the agreement is to give a go by to benevolent provisions of law and to defeat them, specific performance is to be rejected.

17. When the Court finds that the agreement is a mischievous one, cleverly drafted, cleverly brought into existence for the purpose of defeating the provisions of law, in such suit specific performance has to be rejected. Citizens cannot be encouraged for going for mischievous agreement the performance of which is to get away from the natural consequences of legal provisions. In this case, first agreement was brought in existence when a proceeding was in continuation in revenue court in view of provisions of section 32 G. In addition to that, the attempt was made to give a go by to the provisions of Ceiling Act. The lingering intention was to safeguard the interest by saving oneself from the legal consequences of the provisions of the Ceiling Act and last straw on the back of the camel was the service of the notice by which the appellant was directed to hand over the possession to deceased Jagannath Murlidhar Rathi as a result of the proceedings which were initiated in view of provisions of section 32 P of the Act. When all these things were lacking, the Court should not legitimately grant any prayer for specific performance in favour of the plaintiffs. Though the two Courts below have not given the reasons in justifying their conclusion leading them to final decision of dismissal of the suit, the final verdict of the courts below recorded by two judgments and orders is indicating the same final effect.

18. Shri Rege submitted that the judgments and decrees passed by the two Courts below suffer from the infirmity of a incorrectness, improperness and illegality so far as finding on the point of limitation is concerned. He submitted that those courts committed the errors of law in recording that the suit of the appellant was barred by provisions of Article 54 of the Indian Limitation Act, 1963 (hereinafter referred to as the Limitation Act for convenience). In justification of his submission he submitted that the period of limitation starts from the date on which the appellant received the notice directing him to hand over the possession of the suit land to deceased Jagannath Murlidhar Rathi. Shri Soni repelled this submission by submitting that the period of limitation would start prior to 6.6.1962 but even taking a lenient view in favour of the appellant it would start from 6.6.1962 because by virtue of that agreement the appellant was knowing that Jagannath Murlidhar Rathi was to become the owner of the suit land. He submitted that in addition to that there was a suit filed by deceased Jagannath Murlidhar Rathi claiming mesne profits from the appellant Abdul Dadamiya. Therefore, positively in all probability Abdul Dadamiya was knowing that deceased Jagannath Murlidhar Rathi has claimed the ownership of the suit land against his interest and, therefore, the period of limitation would start from the year 1970 at least taking worst case for Jagannath Murlidhar Rathi. This Court finds substance in the submissions advanced by Shri Soni that it was clinchingly proved that in the year 1970 Jagannath Murlidhar Rathi had claimed the ownership of the suit land against the interest of the appellant Abdul Dadamiya. Therefore, this Court does not interfere with the concurrent findings recorded by two Courts below holding that the suit of the appellant was barred by limitation.

19. The Supreme Court has pointed out the guidelines while dealing with second appeals in the case of V. Ramachandra Ayyer and another v. Ramalingam Chettiar and another, which speaks of the jurisdiction and power of the High Court to interfere in the judgments passed by subordinate Courts. It gives the idea as to when the High Court should interfere in such judgments when they are assailed by second appeals. So also it indicates the fetters indicated by such guidelines by the High Court. Keeping tune with the said judgment and the ratio indicated by it, this Court finds that the judgments and decrees which are being assailed by this appeal are correct, proper and legal and consistent with the evidence on record. There is no need of interfering with them and setting them aside as the appellant prays vide this appeal. Thus, this Court dismisses the appeal with costs and confirms the judgment and decree passed by the trial Court which has been confirmed by the appellate court. Decree be drawn accordingly. Rule discharged.

Parties to act an ordinary copy of this order duly authenticated by the Private Secretary of this Court.