S. Sujan Singh vs Yad Ram
1988 Latest Caselaw 238 Del

JUDGMENT

Jagdish Chandra, J.

 (1) In this suit for specific performance of the agreement to sell dated 5.8.1981 which was resisted by defendant No, 1, as many as 11 issues were framed by the Court on 9.9.1985. It was ordered on 8.10.1985 on I.A. 5704/85 of defendant no. I that issues 2, 3 and 10 would be treated as preliminary issues. These three issues are as follows :-    "2.Whether the suit has not been properly valued ? 3. Whether the object of the agreement to sell was unlawful as the object of the plaintiff in being the suit land was to develop the same for a residential colony and as such is the agreement void and unforceable? 10. What is the effect of defendant No. 2 not joining the plaintiff in asking for specific performance of the agreement or part thereof ? "  

 (2) Agreements of th6 learned counsel for the plaintiff and also of the learned counsel for defendant no. I were heard on these preliminary issues. Issue No. 2   

 (3) This issue was not pressed by Mr. Tyagi learned counsel for defendant No. I and so it is held that the suit has been properly valued and this issue is decided accordingly against defendant No. 1. Issue No. 3   

 (4) The agreement to sell in question dated 5.8.1981 does not in itself talk of any object for which the plaintiff and defendant no. 2 agreed to buy the suit land from defendant No. 1, but it was only in the initial plaint that it was stated that the land in suit had been sought to be purchased by the plaintiff and defendant No. 2 from defendant No. 1 for erecting thereon a residential colony. But those assertions regarding the object of raising a residential colony on the suit land were sought to be deleted by the plaintiff from this plaint by making an application under Order 6 Rule 17 of the Code of Civil Procedure for the amendment of the plaint and the proposed amendment was allowed and the averments made in the plaint regarding the object of purchasing the land in suit for raising a residential colony thereon were ordered to be deleted and consequently the amended plaint was filed by the plaintiff deleting those averments. The learned counsel for defendant No. 1 has relied upon those very assertions of the initial plaint and has contended that the agreement to sell was unlawful as the object of the plaintiff in agreeing to buy the land in suit was with the object of developing the same for a residential colony and that agreement to sell was void and unforceable for the reasons that it was against the statutory provisions contained in Ss. 22 and 23 of the Delhi Land Reforms Act, 1954. There is no disagreement between the learned counsel for the parties that the provisions of this Act are applicable to the land in suit. It is also conceded that defendant no. I is a bhumidar in respect of the land in suit and that the plaintiff and defendant No. 2 had sought to purchase the bhumidhari rights of defendant No. I in respect of the suit land, even though the agreement to sell talks of the ownership of defendant No. 1 in the said land. Ss. 22 and 23 of this Act are reproduced below : -    "22.A Bhumidhar or Asami shall, subject to the provisions of this Act, have the right to the exclusive possession of all land comprised in his respective holding and to use land for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry framing and to make any improvement. 23. (1) A Bhumidhar or Asami shall not be entitled to use his holding or part thereof for industrial purposes, other than those immediately connected with any of the purposes referred to in section 22, unless the land lies within the belt declared for the purpose by the Chief Commissioner by a notification in the official Gazette : Provided that the Chief Commissioner may, on application presented to the Deputy Commissioner in the prescribed manner, sanction the use of any holding or part thereof by a Bhumidhar for industrial purposes even though it does not lie within such a belt. (2) Where permission for industrial purposes is accorded, the provisions of this Chapter relating to devolution shall cease to apply to the Bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject."  

 (5) Reading together these two provisions of law what emerges is that neither defendant no. I nor the plaintiff and defendant no. 2 would be entitled to use the land in suit for any purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, but (hey would be entitled to use the same for industrial purposes if on an application in the prescribed manner the Chief Commissioner sanctions the use thereof for industrial purposes. Now, the question is whether this agreement to sell becomes void or not. The learned counsel for the plaintiff has placed reliance on the Supreme Court authority reported as Bhagal Ram v. Kishan and Others (1953) 3 Supreme Court Cases 128 which has held that the view that the agreement to sell was opposed to public policy or transfer under the agreement was hit by S. 23 of the Delhi Land Reforms Act, 1954, is wrong. The persual of this authority shows that an identical question had arisen therein also and the connection raised was that the construction of buildings was not the purpose covered by S. 22 of the Delhi Land Reforms Act and a bhumidhar would, therefore, not be entitled to use agricultural land for purposes of construction of buildings purpose for which admittedly the land was agreed to be purchased. That decision of the Supreme Court was against the judgment and order dated 22.12.1971 of Delhi High Court in Rsa 281-D/1965. The High Court had taken the view that the agreement to sell was hit by Delhi Land Reforms Act, 1954 inasmuch as the purpose for which the property was being chased was non-agricultural and would be opposed to the provisions of that Act. Reserving the decision of the High Court the Supreme Court held as follows:-    "BHUMIDHARI right is transferable and the defendant I is entitled to use the land even for the purpose other than those enumerated in in Section 22 if he obtains permission of the Chief Commissioner. Therefore, the agreement for transfer of land does not become invalid by itself. The defendant I after obtaining the property could use it for the intended purpose on obtaining permission of the Chief Commissioner or if no such permission was obtained, he could use the land for the purposes authorised under Section 22 of the Act. In our opinion, the High Court went wrong in holding that the agreement was opposed to public policy or transfer under the agreement was hit by Section 23 of the Act..."  

 (6) In the face of this authority the agreement to sell in question dated 5.8.1981 does not become invalid by itself and the plaintiff and defendant No. 2, after obtaining the land in suit, can use it for purposes authorised under S. 22 of the Delhi Land Reforms Act, 1954 or for industrial purposes after obtaining the permission from the Chief Commissioner. So, this issue is decided against defendant No. 1. Issue No. 10   

 (7) The agreement to sell in question dated 5.8.1981 was entered in between the plaintiff and defendant No. 2 on the one hand as intending purchasers and defendant No. I on the other as intending seller. Defendant No.2didnotwant to join the plaintiff in this suit and so the plaintiff imp leaded him as a co-defendant. The learned counsel for the plaintiff has relied upon Jahar Roy v. Premji Bhimji 1978 Rajdhani Law Reporter (S C ) 253 wherein it has been held as follows :-    "IF a co-promisedoes not join the plaintiff, he may be brought on record as a pro-forma defendant."  

 (8) In that case the plaintiff and defendant No. 3 were joint lessees of a theatre in Calcutta and they granted a license to defendants I and 2 therein to use the theatre for certain days and when defendants I and 2 therein did not vacate the theatre on the expiry of the agreed (extended) period they were sued for declaration, injunction and damages and the suit was filed by one of the joint lessees and the other joint lessee did not join and was made proforma defendant. It was held that the co-promisewho did not join the plaintiff could be imp leaded as pro-forma defendant. In Monghibai v. Cooverji Umerses 66.1.A. 210 it has been observed as follows :    "IT has been long recognised that one or more of several persons jointly interested can bring an action in respect of joint property, and if their right to sue is challenged can amend by joining their co-contractors as plaintiffs if they will consent, or as co-defendants if they will not."  

(9) The contention of the learned counsel for defendant No. 1 is that the plaintiff and defendant No. 2 were to purchase the land in suit from defendant No. 1 in equal shares. The shares of these persons are not mentioned in the agreement, to sell and they are simply joint purchasers. The contention of the learned counsel for defendant No. 1 does not have any force and the decree for specific performance, if passed, would ensure for the benefit of the plaintiff as well as defendant no. 2 and it is immaterial that in his written statement defendant No. 2 has stated that he and the plaintiff had abandoned the agreement to sell on the expiry of the period of nine months and in consequence whereof the plaintiff destroyed the original agreement. In the last para of his written statement defendant No. 2 has, however, expressed his "no objection" if a decree for specific performance is passed in his (defendant No. 2) favor, keeping in view the above submissions of his. It would also be noted that when the plaintiff filed an application being 1.A. 307/87 for the amendment of his plaint, in reply to that application defendant No. 2 stated that there is no clash of interest between the plaintiff and defendant No. 2 and that the plaintiff may be ordered to join defendant no. 2 as a co-plaintiff and that he was ready to join hands with the plaintiff for the prosecution of this case and would sign the plaint as plaintiff No. 2. He has further stated in this reply that this reply may be treated as application of his .under S. 115 Civil Procedure Code and he was, accordingly putting court fees of Rs. 2.75 thereon. Even on this court the contention of the learned counsel for defendant No. I is of no avail to him and it is held that it is immaterial that defendant no. 2 has not joined the plaintiff in asking for specific performance of the agreement to sell or part thereof and this issue is decided accordingly against defendant No. 1.