Hanusingh S/O Harsingh Chavan And ... vs Amnaji S/O Bhaurao Wadje And Vijay ...
2007 Latest Caselaw 746 Bom

JUDGMENT

V.R. Kingaonkar, J.

Page 1476

1. Challenge in this Appeal is to Decree for specific performance of an agreement of sale.

2. Appellants are original Defendant Nos. 1 and 2. They are real brothers inter-se. Respondent No. 1 Amnaji is original Plaintiff and Respondent No. 2 Vijay is original Defendant No. 3. Appellant No. 1 Hanusingh is agriculturist in whose name land bearing Survey No. 42 of Mukhed was declared as a statutory tenant under provisions of Section 38-E of the Hyderabad Tenancy and Agricultural Lands Act, 1950. Deceased appellant No. 2 Rajasingh was a registered medical practitioner.

3. Subject matter of the suit is three (3) acres land out of Survey No. 42, which admeasured 4 acres 20 gunthas, as described in the claim clause. Though the land Survey No. 42 was cultivable in the past and was being used for agricultural purposes, yet due to a proximity of a State Transport Bus Stand, it was converted to non agricultural use. Already remaining one (1) acre twenty (20) gunthas land is divided into plots which are sold away. The suit land is the only parcel of the land which is lying fallow and is yet not actually being used for non agricultural purpose.

4. Original PlaintiffAmnaji filed suit (Special Civil Suit No. 32 of 1990) for specific performance of an agreement of sale dated 29/8/1982 allegedly executed in his favour by appellants-original defendant Nos. 1 and 2 in respect of the suit land.

5. Back ground facts of the litigation may be briefly stated as follows:

One Gangi Wd/o Gangayya owned the suit land. A certificate of statutory ownership was issued in favour of defendant No. 1 Hanusingh, declaring him as a protected tenant of the said land. In 1963 the price amount of Rs. 3000/- was deposited by him. The land ladyGangi Wd/o-Gangayya-had started eviction proceedings against him. She died later on. One Dattu claimed himself as an adopted son of said Gangi. He filed Suit (Special Civil Suit No. 45 of 1970) for declaration that certificate of the statutory ownership granted in favour of Hanusingh was invalid. He claimed eviction decree against defendant Nos. 1 to 3 and other persons. That suit was decreed on 15/1/1975. The decree was challenged before the High Court in First Appeal No. 63 of 1975 by the defendant Nos. 1 and 2. This Court allowed the Appeal on 7/9/1990. A Special Leave Petition filed by said Dattu was dismissed by the Apex Court. It was after decision of the First Appeal No. 63 of 1975 that respondent No. 1-plaintiff Amnaji filed the suit for specific performance of agreement of sale.

6. The plaintiff's case was that defendant Nos. 1 and 2 were in need of finance to meet out expenditure of the litigation started by said Dattu. They agreed to sale the suit land to him for consideration of Rs. 3,00000/- (Rs. Three Lakhs). The terms of agreement were orally settled on 22/8/1982. Both of them executed a written agreement of sale in his favour on 29/8/1982 after receiving Rs. 50,000/- (Rs. Fifty Thousand) as earnest amount. It was Page 1477 agreed between them that after decision of the First Appeal, which was pending before the High Court, the defendant Nos. 1 and 2 shall deliver possession of the suit land to him and would execute registered sale deed in his favour after receiving the remaining consideration of Rs. 2,50,000/- (Rs. Two Lakhs Fifty Thousand). It was further agreed that the defendant Nos. 1 and 2 would obtain necessary sale permission from the Collector as required under the Tenancy Law. It was agreed between them that in case of failure on part of the defendant Nos. 1 and 2 to deliver possession, even after their success in the Appeal, plaintiff Amnaji would be entitled to enter into possession of the suit land on his own accord. The cost of registration and incidental expenditure was to be borne by him. It was further agreed that in case of failure of the defendant Nos. 1 and 2 to get favourable decision in the First Appeal, the earnest amount would be returned to him.

7. The plaintiff-Amnaji averred that he was ready and willing to perform his part of the agreement of the sale. He came across a public notice published in local newspapers dated 13/9/1990 that defendant Nos. 1 and 2 had agreed to alienate the suit land in favour of defendant No. 3 Vijay. He requested the defendant Nos. and 2 (Appellants) to perform their part of the agreement of sale. They avoided to do so. He issued a notice dated 22/11/1990 and called upon them to execute a registered sale deed on accepting balance consideration of Rs. 2,50,000/ (Rs. Two Lakhs Fifty Thousand ). On their non compliance, he filed the suit.

8. Original defendant Nos. 1 and 2 (Appellants) resisted the suit alleging that there was no agreement of sale in respect of the suit land. They contended that the document styled as agreement dated 29/8/1982 is false and fabricated. They denied that amount of Rs. 50,000/- (Rs. Fifty Thousand) was paid to them by plaintiffAmnaji as earnest money. They denied all the material averments made by him. They asserted that during pendency of the First Appeal filed by them against said Dattu, in 1982 or 1985 a group of some villagers and Advocate Shri Ugrasenrao Mukhedkar made an attempt to settle the dispute between them and said Dattu. They asserted that their signatures were obtained on blank stamp papers so as to scribe settlement of terms with said Dattu. The blank stamp papers were retained by one of the intervenor, namely, Hanumant Tukaram Patil. They delivered the signed blank stamp paper to him in good faith because they reposed confidence in him. There was, however, no settlement with said Dattu and the talks of settlement fizzled out. They contended that after the decision of the First Appeal they remembered that those signed stamp papers had remained in custody of said Hanumant Tukaram Patil. So they got published a notice in local newspaper and informed all concerned that those stamp papers are likely to be misused for preparation of false documents. They asserted that plaintiff Amnaji is close friend of defendant No. 3 Vijay and he is practically his agent. They further asserted that the plaintiff filed false suit on the basis of fabricated document styled as Souda Chitthi (agreement) dated 29/8/1982, at the behest of defendant No. 3 Vijay. On these premises, they sought dismissal of the suit.

9. Original defendant No. 3 resisted the suit alleging that he had agreed to purchase the entire land Survey No. 41/1 from defendant Nos. 1 and 2 as Page 1478 per terms of an agreement of sale dated 29/10/1989. He denied that the agreement of sale was entered into between plaintiff - Amnaji and the defendant Nos. 1 and 2 on 29/8/1982. He contended that the suit was filed in collusion with defendant Nos. 1 and 2. According to him, defendant Nos. 1 and 2 had agreed to withdraw their First Appeal bearing No. 63 of 1975 on his making payment of Rs. 6,11,000/- (Rs. Six Lakhs Twelve Thousand). He had entered into separate agreement with said Dattu to purchase the said land. Said Dattu had executed a sale deed in favour of himself and others. He further asserted that he had filed a Special Civil Suit (Special Civil Suit No. 27 of 1990) against defendant Nos. 1 and 2 for specific performance of the agreement of sale and therefore they managed to file the suit through plaintiff Amnaji so as to defeat his claim. Hence he urged to dismiss the suit.

10. The parties went to the trial over the issues framed below Exhibit No. 43. The learned trial Judge held that the agreement of sale is a genuine document. The trial court came to the conclusion that the plaintiff did not prove his possession over the suit land. The trial court further held that the agreement in question is enforceable if sale permission is granted by the competent authority. The trial court held further that plaintiff Amnaji was ready and willing to perform his part of the agreement and hence was entitled to decree for specific performance of the agreement. The trial court decreed the suit in keeping with the above findings.

11. Original plaintiff Amnaji has preferred cross objections against findings of the trial court in respect of possession. He alleges that his lawful possession over the suit land ought to have been held as proved and decree for perpetual injunction sought by him should have been granted.

12. Mr. P.M. Shah, learned senior Advocate would submit that the agreement of sale (Exhibit 73) is artificially prepared document because it is written up to approximately middle portion of the stamp paper though large space was available. He would submit that when the litigation was pending between said Dattu and defendant Nos. 1 and 2 then ordinarily a prudent man would not have entered into such an agreement. For, said Dattu had been successful in the trial court and there was uncertainty about the claim of defendant Nos. 1 and 2. He would further submit that the close scrutiny of the agreement (Exhibit 73) itself shows that it might have ben written afterwards to adjust the recitals in as much as space between two lines is marginal at the bottom side. He pointed out that plaintiff Amnaji was working as an employee of co-operative bank. He contended that presence of plaintiff Amnaji at the time of said agreement was improbable because as per certificate issued by the bank officer at Exhibit 72, he was supposed to be on duty. He argued that there are several documents to show that the plaintiff is put up by the defendant No. 3 to any how grab the suit land for palpably low price. He contended that defendant No. 3 Vijay is the real plaintiff and attempted to play a double-cross game by obtaining sale deed from said Dattu on one hand and putting up plaintiff Amnaji to get the decree for specific performance against defendant Nos. 1 and 2 on the other hand. It is argued that plaintiff Amnaji failed to prove as to how he was able to raise Page 1479 the amount of Rs. 50,000/- (Rs. Fifty Thousand) at the relevant time though his salaried income was insufficient. It is argued that false document was prepared with the help of stock witnesses and the conduct of plaintiff Amnaji is highly suspicious.

13. Mr. Shah further submitted that the trial court failed to see that the transfer is invalid as per Section 50-B of the Hyderabad Tenancy and Agricultural Lands Act. He argued that the plaintiff's case was that he entered into possession of the suit land on his own. So, he would submit that the transfer was violative of provisions of the Hyderabad Tenancy and Agricultural Lands Act. He contended that the trial court did not properly appreciate the relevant evidence and the decree is unsustainable. He further contended that the prices of the land have shot-up during the intervening period and therefore the so-called agreement must be regarded as inequitable. Hence, he urged to allow the Appeal.

14. As against this, learned Advocate Mr. Dhorde, appearing for the respondent No. 1 plaintiff Amnaji, would submit that the agreement of sale is a genuine document. He contended that after the decision of the First Appeal filed against Dattu within few days defendant No. 3 Vijay got published a notice dated 13/9/1990 claiming himself as prospective purchaser in accordance with the agreement dated 29/10/1989. He would submit that plaintiff Amnaji came to know about such agreement claimed by the defendant No. 3 and hence immediately took steps to put forth his claim. Mr. Dhorde would submit that contention of the defendant Nos. 1 and 2 that in 1982 or 1985 some blank stamp paper was signed by them, is too vague and omnibus averment. He submitted that there were no details of any fraud played on the defendant Nos. 1 and 2 and mere vague allegation can not be accepted. He contended that plaintiff Amnaji and his witnesses have duly proved execution of the agreement of sale (Exhibit 73) and the decree of the trial court is well justified. He would submit that mere escalation of the prices cannot be a ground to deny the relief of specific performance.

15. Mr. Kudale, learned Advocate appearing for defendant No. 3 Vijay contended that the suit is outcome of collusion between the plaintiff and defendant Nos. 1 and 2. He contended that the defendant No. 3 had entered into prior agreement of purchase with defendant Nos. 1 and 2. He argued that the suit filed by the defendant No. 3 Vijay is earlier in point of time, yet it was stayed by the court on application of defendant Nos.1 and 2, without substantial reason.

16. The substantial points involved in this Appeal are thus:

(1) Whether the appellants properly pleaded and proved that a blank stamp paper signed by them was misused and the agreement of sale (Exhibit 73) is a forged and fabricated document?

(2) Whether it is proved that the appellants agreed to transfer the suit land by way of sale in favour of plaintiff Amnaji for consideration of Rs. 3,00000/- (Rs. Three Lakhs) and an amount of Rs. 50,000/- (Rs. Fifty Thousand) was paid by him at the time of execution of agreement of sale dated 29/8/1982 (Exhibit 73)?

Page 1480

(3) Whether it is proved that plaintiff Amnaji was ready and willing to perform his part of the agreement?

(4) Whether the agreement in question is invalid and is unenforceable for the reason that it is a transfer of the tenanted land without permission of the competent authority and is violative of Section 50-B of the Hyderabad Tenancy and Agricultural Lands Act, 1950?

(5) Whether the agreement of sale gives undue advantage to plaintiff Amnaji and is inequitable?. My findings on these points are: (1) No (2) Yes (3) Yes (4) No (5) Yes.

The reasons are described hereinafter:

17. At the out set, let it be noted that for the first time the defendant Nos. 1 and 2 showed sign of awakening in respect of the stamp papers signed by them when they got published a notice in the local newspaper on 11/9/1990, which was published on 15/9/1990. It is pertinent to note that defendant No. 3 Vijay had already filed suit against them on 15/9/1990 before they claimed that blank stamp papers signed by them were likely to be misused. The recitals of the said notice (Exhibit 115) would show that it was vaguely asserted that the defendant Nos. 1 and 2 remembered about leaving of signed stamp paper with said Hanumantrao Tukaram Patil in 1982 or 1985. The pleadings of the defendant Nos. 1 and 2 would show that they vaguely pleaded that from 1970 to 1989 prices of the lands and plots had escalated to sky high position and said Dattu had handed over reigns of the litigation to defendant No. 3 Vijay. They further alleged that defendant No. 3 had formed a group of persons like Hanumantrao Patil, Debadvar, Raosaheb Patil and Advocate Shri Ugrasenrao Mukhedkar. They further alleged that "said persons" in 1982 or 1985 made an attempt to settle the matter by securing their signatures and that of said Dattu on blank stamp papers, but the matter could not be settled. The documents were kept in the custody of Hanumant Tukaram Patil in good faith and belief. In other words, the pleadings of the defendant Nos.1 and 2 are suggestive of alleged fraud played on them.

18. The plea of fraud cannot be vaguely adopted. The particulars of such plea must be given by the party. In Varanasaya Sanskrit Vishwavidyalaya and Anr. v. Dr. Rajkishore Tripathi and Anr. A.I.R. 1977 SUPREME COURT 671 the Apex Court held that general allegation that there was 'collusion' without more particulars would be insufficient. Unless the allegations are specific and details are given, such pleadings cannot be considered. So also, this Court in Kisan Ramji Khandare v. Kausalyabai Gangaram and Ors. 2007 (3) Bom. C.R. 118 held that plea of fraud cannot be accepted without there being particulars in the pleading as required under Order 6 Rule 4 of the Code of Civil Procedure. The appellants, no doubt tried to show that plaintiff Amnaji owns a plot adjacent the plot of defendant No. 3 Vijay and that their lands are in the proximity of each other. They tried to show that plaintiff Amnaji was on friendly terms with defendant No. 3 Vijay. Mere proximity of the properties and good relations between them will not be a sufficient ground to reach conclusion that they are in collusion with each other.

Page 1481

19. Though defendant Nos. 1 and 2 claimed that the signed blank stamp paper was kept with Hanumantrao Tukaram Patil due to mutual trust and because they reposed confidence in him, yet there was no reason for them to allow him to keep the custody of such signed blank paper after the so-called talks of settlement had fizzled out. They had no business to sign the blank stamp paper when the settlement had yet not been made. Moreover, none of the independent witness has supported their such contention. Conversely D.W. Hanumantrao Patil denied that any such document was kept with him. The version of D.W. Hanumantrao Patil purports to show that in his presence the appellants entered into an agreement with the defendant No. 3. He categorically states that defendant No. 1 and 2 had never submitted any blank stamp paper signed by them for the purpose of settling the dispute. He referred to such transaction between the appellants and defendant No. 3, which was entered into somewhere in 1989. His version purports to show that defendant No. 3 Vijay had served a notice on him to return the said document and therefore he had returned it. In any case, his version does not show that the defendant Nos. 1 and 2 had kept a signed blank stamp paper with him in 1982 or 1985. He was examined as a witness by defendant No. 3 Vijay.

20. On perusal of the evidence tendered by D.W. Hanumansingh alias Hannusingh and D.W. Rajasingh, it is amply clear that both of them are experienced and matured persons. Admittedly, both of them were active politicians. They were members of Municipal Council. They used to run a boarding institution called Nehru Boarding Hostel. The deceased defendant No. 2 was vice chairman of the association of the freedom fighters. He was also chairman of sale-purchase co-operative society for five years. He was chairman of marketing committee. The defendant Nos. 1 and 2 were not the ordinary gullible persons. They were litigating with said Gangi Wd/oGangayya since long. They were well aware of the legal implications of their so-called act of signing the blank stamp papers. Obviously, it does not stand to reason that they had forgotten to collect such a stamp paper from D.W. Hanumantrao Patil though it was left with him in 1982 or 1985.

21. They adduced oral evidence of D.W. 3 Shaikh Husain in support of their contention regarding signing of the blank stamp papers. D.W. Shaikh Husain states that in the month of August, 1982 there were talks of settlement between said Dattu and defendant Nos. 1 and 2. He deposed that a meeting was held at the house of defendant Nos. 1 and 2 and then defendant No. 3 Vijay, one Dhondu Debadwar, D.W. Hanumantrao Patil and one Raosaheb Patil suggested that if both the sides would hand over blank stamp papers signed by them, then they would try for amicable settlement. Thereafter stamp papers were purchased and were signed by said Dattu and the defendant Nos. 1 and 2. According to him, defendant Nos.1 and 2 had asked him on 2-4 occasions that the blank stamp paper was with D.W. Hanumantrao Patil. They continued to ask him about such stamp paper for about 2-4 years thereafter. His evidence shows, therefore, that defendant Nos. 1 and 2 had not forgotten about the so-called signed blank stamp papers. Needless to say, the subsequent allegation that they remembered about such a signed Page 1482 stamp paper after the decision of the First Appeal in September, 1990, is unbelievable and unconvincing story.

22. D.W. Shaikh Husain is a chance witness. He had no particular reason to attend the so-called meeting nor he is signatory of any document. It is more probable that he entered the witness box only with a view to oblige defendant Nos. 1 and 2.

23. At this juncture, it may be mentioned that D.W. 5 Dinkarrao was examined by the defendant Nos. 1 and 2 in support of their case regarding fabrication of the document (Exhibit 73). He is handwriting expert. He was unable to give opinion whether the document in question was written subsequently after the signatures were made by the defendant Nos. 1 and 2. He states that the document may be result of accommodative writing. His version reveals that in the said document (Exhibit 73) there was awkward spacing in the line Nos. 12 and 13. His version purports to show that if signatures are obtaining on blank stamp paper, it would be necessarily at the bottom of the document and not at the middle. Needless to say, his version is of no assistance to the defendant Nos. 1 and 2(Appellants). Their evidence falls too short to prove that the said document was fabricated and their signatures were obtained on blank stamp papers. The trial court rightly held, therefore, that the agreement of sale is not proved to be forged and fabricated one.

24. Coming to the versions of P.W. 1 Amnaji and his witnesses, it may be stated that they have rendered consistent evidence regarding terms of the agreement and execution of the agreement of sale (Exhibit 73). P.W. 2 Daulat is the scribe of said document. P.W. 3 Kishan is the attesting witness thereof. It is the version of P.W. Amnaji that while he was in service at Mukhed he was residing in the premises owned by defendant Nos. 1 and 2 as their tenant. His version purports to show that defendant Nos. 1 and 2 intended to alienate the suit land. He agreed to purchase the same for consideration of Rs. 3,00000/- (Rs. Three Lakhs). His version purports to show that the agreement of sale (Exhibit 73) was reduced in writing as per terms of oral agreement which was settled on 22/8/1982. He deposed that after the decision of the First Appeal preferred by the defendant Nos. 1 and 2, further performance of the agreement was to be effected. His version purports to show that he came across notice dated 13/9/1990 which was published in a local newspaper which indicated that defendant No. 3 Vijay had agreed to purchase the suit land. He learnt that the First Appeal was decided on 7/9/1990 by the High Court, in favour of the defendant Nos. 1 and 2, and hence he requested them to accept the remaining consideration amount and execute the sale deed. He further stated that he had entered into possession as per the oral agreement. His cross examination reveals that his father owned lands at village Masalga and village Yeloor. He had joined the service as supervisor in the scale of Rs. 60-4-100 in 1971. His pay scale at the relevant time was Rs. 910-40-1200. It could be around Rs. 310 in 1980. Still, however, it cannot be said that he was unable to raise the earnest money because his salaried income was negligible. Page 1483 As stated before, he owned other agricultural lands. How he raised money is not so much so important. Whether he paid the amount to the defendant Nos. 1 and 2 is the material aspect. His version shows that witness Apparao Patil was working as servant of defendant No. 3 Vijay and had signed some of the sale deeds as an attesting witness. He admits that personally he had not enquired about exact tenancy rights in respect of the suit land. He had not enquired whether the suit land was ordered to be restored in favour of said Dattu. He admitted that his attendance in the office shown in the letter (Exhibit 72) is correctly indicated but explained that he had obtained oral permission to leave the head quarter. Mere production of such letter would not show that the plaintiff was unable to remain present at the time of the agreement of sale. He admitted that he had agreed to purchase the suit land though there was risk of adverse decision in the Appeal. That also would not demolish his case because there was no actual risk for him since his earnest money was secured. The defendants No. 1 and 2 had agreed to return the said amount in case of their failure in the Appeal proceedings filed in this Court against said Dattur and others.

25. I have gone through the evidence tendered by P.W. Daulat and P.W. Kishan. Both of them are signatories of the agreement of sale (Exhibit 73) as scribe and attesting witness. Their evidence purports to show that defendant Nos. 1 and 2 agreed to transfer the suit land by way of sale for consideration of Rs. 3,00000/- (Rs. Three Lakhs) to plaintiff-Amnaji. They corroborated his version regarding due execution of agreement of sale (Exhibit 73). Their evidence reveals that it was agreed between the parties that the sale permission would be obtained by defendant Nos. 1 and 2. Though the writing style of the document gives impression that improper spacing was left between the two lines yet it is difficult to say that same was prepared afterwards in order to accommodate the signatures. As stated by D.W. 5 Dinkarrao, who is handwriting expert, if the signatures are to be obtained on blank stamp paper, it would be necessarily at the bottom of the document and not at the middle. Obviously if the signatures of defendant Nos.1 and 2 had to be taken on blank stamp paper, in the normal course, they would have been taken at the bottom of the stamp paper. The story put forth by the defendant Nos. 1 and 2 is illogical and unacceptable. The talks of the compromise had begun somewhere in 1989. There was no reason to purchase a stamp paper in 1982 for such a purpose when the talks regarding settlement of compromise were not contemplated. For, the First Appeal filed by defendant Nos. 1, 2 and others had not yet become ripe for final hearing.

26. One cannot be oblivious of the fact that defendant No. 3 Vijay had issued a notice dated 13/9/1990 regarding his agreement of sale. The wisdom had allegedly dawned and memory struck on the defendant Nos. 1 and 2 thereafter. They suddenly remembered that a blank stamp paper was signed by them in 1982 or 1985 and was handed over to Hanumant Patil. The plaintiff issued notice dated 22/11/1990 (Exhibit 65) and demanded specific performance of the agreement of sale. The notice of the plaintiff was replied by defendant Nos. 1 and 2 vide Exhibit 69. They alleged that their signatures were obtained on blank stamp papers in 1982 and 1989 and that fact was known to local M.L.A. Madhukar Dhote Page 1484 and other respectable persons. Still, however, no respectable person entered the witness box in support of such contention.

27. The trial court duly appreciated the evidence on record. I am of the opinion that the trial court rightly held that the agreement of sale (Exhibit 73) is proved. The appellants however failed to prove that the signed blank stamp paper was misused and there was no agreement of sale as such between them and the plaintiff. If Advocate Shri Ugrasenrao Mukhedkar was also a party to such an attempt of settlement between themselves and said Dattu, they would have examined said Shri Ugrasenrao Mukhedkar Advocate in support of their defence. The plaintiff's case is more probable and acceptable. The plaintiff's evidence purports to show that his claim was deferred till decision of the High Court in the First Appeal preferred by the defendant Nos. 1 and 2 and he became entitled to obtain the specific performance only after 7/9/1990. His version purports to show that he took immediate action thereafter and demanded the specific performance. He proved his readiness and willingness to perform his part of the agreement.

28. Mr. Shah, seeks to rely on Dnyanoba Sukhdeo Lande and Anr. v. Shrirang Mahataraji Dhurwade and Shri Parshuram Kathod Gaikwar v. Pandu Mahadu Hard and Anr. . According to learned Senior Advocate Mr. Shah, the transfer is invalid because the plaintiff claimed himself to be in possession. A Single Bench of this Court held in "Dnyalnoba Sukhdeo Land and another" (supra) that the words 'transfer' used in Section 50-A of the Hyderabad Tenancy and Agricultural Lands Act has a wider meaning. It is held that a party cannot be allowed to override the provisions of Section 50-B by device such as an agreement of sale and continue in possession thereof claiming right under Section 53-A of the Transfer of Property Act. It is further held that such a transfer would amount to defeating the provisions of the Hyderabad Tenancy and Agricultural Lands Act. Similar is the view expressed in Shri Parshuram Kathod Gaikar v. Pandu Mahadu Hard (supra).

29. The trial court rendered finding that respondent No. 1/ plaintiff Amnaji was not in possession of the suit land. The intrinsic evidence appearing from the document styled as Sauda Chitthi (agreement Exhibit 73) shows that the land was permitted to be used for non agricultural purpose. The defendant Nos. 1 and 2 had obtained such permission from the competent authority. The disputed three acres land was lying fallow whereas other part was plotted. There is not a single revenue entry to show that the plaintiff was in possession of the suit land at the time of filing of the suit. It cannot be ignored that he filed suit within a short span after decision of the First Appeal preferred by the defendant Nos. 1 and 2. The vague version of the plaintiff, in this behalf, is uncorroborated by any reliable evidence. His cross objection is without any merit.

30. Once it is found that the agreement of sale was not a transfer of interest as such, there is no adequate reason to hold that it was a complete transfer Page 1485 due to delivery of possession. There is no question of the plaintiff's claim regarding plea of part performance because he did not claim delivery of possession at the time of the agreement of sale nor his pleadings would show that any protection under Section 53-A of the Transfer of Property Act was sought by him. Both the above referred decisions, which are relied upon by learned senior Advocate Mr. Shah, pertain to the claim in respect of protection under Section 53-A of the Transfer of Property Act. In such context it was held that the agreement of sale accompanied by the transfer of possession was invalid and no protection could be claimed by the prospective purchaser under Section 53-A of the Transfer of Property Act. The fact situation in the present case stands on different footings. The plaintiff is not claiming any protection under Section 53-A nor it is proved that possession of the suit land was delivered to him in pursuance of the terms of the agreement.

31. In Case of Nasrullakhan Bismill Khan since deceased through L.R.s v. Shahbuddin s/o Syed Hussain and Ors. it is held that Section 50-B does not create a legal bar to suit for specific performance. It is held that though the Section declares that the land shall not be transferred without the previous sanction of the Collector, it is no bar to the institution of a suit for specific performance. In Asudamal S/o Laxmandas Sindhi v. Kisanrao S/o Wamanrao Dharmale and Ors. a Single Bench of this Court held that lack of permission under Section 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, is not an impediment in passing decree for specific performance. So also in Balu Baburao Zarole and Ors. v. Shaikh Akbar Shaikh Bhikan and Ors. it is held that decree for specific performance, granted subject to sanction of transfer permission by Collector, was not improper. It is observed that an agreement to sale does not create any interest in the property and hence the enforcement of such agreement can be sought. For, execution of the conveyance would be only after grant of sanction by the Collector. Thus, " decree nici" can be passed without difficulty. In this view of the matter there is no error committed by the trial court while granting the decree for specific performance subject to condition that the defendant Nos.1 and 2 shall obtain the necessary sale permission.

32. This takes me to determine the question as to whether decree for specific performance could be granted without considering equities and the developments which occured after the agreement of sale. There cannot be any doubt about the fact that the suit land is most convenient for residential and commercial purposes because it is in the proximity of S.T. bus stand of Mukhed. I may take judicial notice of the fact that Mukhed is a small town having facilities like bank, colleges, Tahasil office and other offices. There is a Civil Court at Mukhed. The suit land has potential commercial value in view of its prime location. It is situated by side of main road leading to township of Mukhed. This fact is borne out from affidavit of Arunsingh s/o- Page 1486 Rajasingh Chauhan and there is no denial to it. Respondent Amnaji has filed an affidavit along with some copies of sale deeds. The plots out of Survey No. 37/3 were carved out and sold in 1990. It appears that the sale deeds were executed in respect of plots which were within local limits of Mukhed. As per version in the affidavit of Arunsingh S/oRajasingh Chauan that land is at a considerable distance of about 3.5. k.m. The respondent-original plaintiff came out with a case that the defendant No. 3 Vijay had proclaimed himself to be prospective purchaser for consideration of Rs. 6,11,000/- (Rs. Six Lakhs Eleven Thousand) as per the agreement dated 21/10/1989. Needless to say, there was escalation in the prices.

33. The conduct of the plaintiff would show that he was well aware about the litigation which was going on between the defendants and said Dattu. He contemplated some mutual settlement between them because the main question in that matter as to whether said Dattu was adopted son of deceased owner-Gangayya. Defendants No. 1 and 2 were in need of money. May be they were under the impression that the litigation would come to an end at an early point of time due to settlement. Both the parties were, therefore, rather unsure of their rights and hence it was a kind of secured investment for the plaintiff; whereas it was a kind of convenient deal for the defendants No. 1 and 2 if the First Appeal would have been settled due to intervention of some respectable persons. The First Appeal filed by the defendants in the year 1975 (First Appeal No. 63 of 1975) was heard and finally decided on 7/9/1990. Thus, at least from August, 1982 for about 8 years the specific performance could not be sought due to the pendency of said litigation. The rights of the parties remained dormant. In the meanwhile, there was escalation of prices. It appears from the price index produced by the appellants that currently the market rate of such open land is of Rs. 1350/-(Rs. One Thousand Three Hundred Fifty) per square feet. The plot of 10,650 square meter is valued at Rs. 81,00,000/- (Rs. Eighty One Lakhs). There cannot be any difficulty in holding that the market price of the suit land had escalated tremendously when the question of specific performance was required to be considered as per terms of the agreement.

34. The defendants No. 1 and 2 (appellants) could not be held guilty of committing breach of the terms of the agreement (Exhibit 73) at least uptill 1990. The agreement was conditional. The condition surely was disadvantageous and inequitable to the vendors. The Court cannot be a mute spectator in such a situation. The grant of decree for specific performance of contract is not automatic. The Court has to consider whether it will be fair, just and equitable to grant such relief. The defendants No. 1 and 2 tried to wriggle out themselves of the contract because of escalation in the prices of the real estate. The plaintiff cannot be allowed to take unfair advantage over the appellants. The market price of the suit land in the relevant period i.e. 1990 could be determined at least as Rs. 10,00000/ (Rs. Ten Lakhs). This can be gathered from the fact that defendant No. 3 Vijay desired to purchase the suit land for about Rs. 6,00000/- (Rs. Six Lakhs) in 1989 and naturally it was so because the said price was much less than the actual market price. The Appeal preferred by the defendants No. 1 and 2 was not even decided at that time and yet he was ready to pay such a huge price. Considering Page 1487 the price which he was ready to pay and the price index of 2007, a golden mean can be derived. I am of the opinion, therefore, that the suit land was worth Rs. 10,00000/- (Rs. Ten Lakhs) in 1990.

35. In Gobind Ram v. Gian Chand the Apex Court held that the vendor's hardship may be mitigated by directing vendee to pay further compensatory amount. The Apex Court observed:

6. Next decision on which learned Senior Counsel for the appellant relied is in Parakunnan Veetill Joseph's Son Mathew v. Nedumbara Kuruvila's Son. We may extract the relevant portion of the said Judgment: (SCC p.345, para 14) 14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion of courts as to decreeing specific performance. The court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff.

7. It is the settled position of law that grant of a decree for specific performance of contract is not automatic and is one of the discretions of the court and the court has to consider whether it will be fair, just and equitable. The court is guided by principle of justice, equity and good conscience. As stated in P.V. Joseph's Son Mathew the court should meticulously consider all facts and circumstances of the case and motive behind the litigation should also be considered.

36. The legal position would be further explicit from Dictum in Nirmala Anand v. Advent Corporation (P) Ltd. and Ors. . The relevant observations may be usefully quoted as follows:

Courts are not bound to grant specific performance merely because it is lawful to do so unmindful of equities to be balanced and despite serious inequities that may necessarily result by granting the same. Specific performance being an equitable relief, balance of equities have also to be struck taking into account all these relevant aspects of the matter, including the lapses which occurred and parties respectively responsible therefor. Before decreeing specific performance, it is obligatory for courts to consider whether by doing so any unfair advantage would result for the plaintiff over the defendant, the extent of hardship that may be caused to the defendant and if it would render such enforcement inequitable, besides taking into consideration the totality of circumstances of each case.

37. From the foregoing discussion and on consideration of the settled legal position, it it conspicuous that the balance will have to be struck having regard to equities and the respondent No. 1 (plaintiff) cannot be allowed to Page 1488 gain unfair advantage when he knowingly entered the legal gamble. The escalation in prices could be advantageous to him only to some extent. The vendors cannot be deprived of the benefits. Obviously, if the respondent No. 1 Amnaji is ready and willing to purchase the suit land for consideration of Rs. 9,00000/- (Rs. Nine Lakhs) then also he will gain advantage because the market price in 1990 was approximately Rs. 10,00000/- (Rs. Ten Lakhs). I am of the opinion that in view of mitigating circumstances, the defendants No. 1 and 2 (appellants) will be entitled to additional amount of Rs. 6,00000/- (Rs. Six Lakhs) as compensation due to escalation of the prices. The impugned Judgment and decree will have to be therefore modified to this extent.

38. In the result, the impugned Judgment and decree is maintained and the Appeal is dismissed subject to condition that the respondent No. 1 (plaintiff) shall pay further additional amount of Rs. 6,00000/- (Rs. Six Lakhs) to the appellants by way of compensation on account of escalation of the prices of the land in question. The said payment shall be made at the time of the registration of the sale deed if the sale permission is granted in favour of appellants or on their failure it is granted in favour of the respondent No. 1-plaintiff-Amnaji. Civil Applications are also dismissed as the same are untenable. No costs.