Madhya Pradesh High Court
Abdul Wahid Khan vs Bhanwarlal S/O Bapulal (Deceased ... on 14 March, 2023
Author: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 14th OF MARCH, 2023
SECOND APPEAL No. 425 of 2002
BETWEEN:-
ABDUL WAHID KHAN S/O HAMID KHAN, AGED ABOUT 46 YEARS, WARD
NO. 06 SARANGPUR, DISTRICT RAJGARH (MADHYA PRADESH)
.....APPELLANT
(BY SHRI BALDEEP SINGH GANDHI, ADVOCATE APPEARING ON BEHALF
OF AMIT PUROHIT, ADVOCATE)
AND
BHANWARLAL S/O BAPULAL (DECEASED ) THRU. LRS. RAJUBAI W/O
1. BHANWARLAL MOHALLA KALIWADA, WARD NO. 01 SARANGPUR
DISTRICT RAJGARH (MADHYA PRADESH)
2. COLLECTOR STATE OF MP. RAJGARH (MADHYA PRADESH)
BHANWARLAL S/O BAPULAL (DECEASED ) THRU. LRS. SORAMBAI
W/O PRAKASH (PREDECEASED S/O BHANWARLAL) MOHALLA
3.
KALIWADA, WARD NO. 01 SARANGPUR DISTRICT RAJGARH
(MADHYA PRADESH)
BHANWARLAL S/O BAPULAL (DECEASED ) THRU. LRS. PRAKASH S/O
4. BADRILAL MOHALLA KALIWADA, WARD NO. 01 SARANGPUR
DISTRICT RAJGARH (MADHYA PRADESH)
BHANWARLAL S/O BAPULAL (DECEASED ) THRU. LRS. KAILASH S/O
5. BADRILAL MOHALLA KALIWADA, WARD NO. 01 SARANGPUR
DISTRICT RAJGARH (MADHYA PRADESH)
BHANWARLAL S/O BAPULAL (DECEASED ) THRU. LRS. SHIV S/O
6. BHANWARLAL MOHALLA KALIWADA, WARD NO. 01 SARANGPUR
DISTRICT RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
Signature Not Verified
Signed by: VARSHA SINGH
Signing time: 3/15/2023
2:47:51 PM
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HEARD ON : 27.02.2023
PRONOUNCED ON : 14.03.2023
This second appeal coming on for hearing this day, the court passed the
following:
JUDGMENT
The appellant/plaintiff has filed this appeal against the judgment
dated 29.08.2001 passed in Civil Suit No.113-A/2000 by Civil Judge,
Class-II, Sarangpur and judgment dated 13.05.2002 passed by District
Judge, in Civil Appeal No.19-A/2002 whereby Civil Suit, as well as appeal
both, have been dismissed.
The facts of the case in short are as under:-
1. Defendant/respondent No.1 Bhanwarlal is the leaseholder of the
agricultural land bearing Survey No.50/1/11 Area 0.500 hectares of Village
Bakhtiarpura, Tehsil Sarangpur (hereinafter referred to as "the suit land").
He entered into an agreement to sell with the plaintiff on 19.02.1990 to sell
the aforesaid land for Rs.5,000/-. The plaintiff paid Rs.2,600/- as advance
money and thereafter paid Rs.1,000/- on 29.09.1990 and got possession of
the suit land. The plaintiff did agree to pay the balance amount of
Rs.1,400/- at the time of registration of the sale deed. According to the
plaintiff he was always ready and willing to pay the remaining amount and
get the sale deed executed but the defendant was reluctant to fulfill his
obligation. On 15.11.1999, defendant No. 1 initiated the proceeding under
Section 145 of the Cr.P.C. before the Sub-Divisional Magistrate,
Sarangpur. Thereafter, the plaintiff served the registered notice dated
29.11.2002 to the defendant for the execution of the sale deed. On
25.11.2000, the defendant threatened the plaintiff that he would disposes
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Signed by: VARSHA SINGH
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him. Hence, the plaintiff filed the suit for specific performance of the
contract and permanent injunction.
2. Defendant No.1 remained ex-parte in the suit. The plaintiff
examined himself and two other witnesses namely Gulam Kadar and
Govardhan Prasad as PW-1, 2 & 3 and exhibited six documents as Ex. P-1
to P-6. The sale agreement was exhibited as Ex.P/1.
3. After appreciating the limited evidence that came on record, vide
judgment dated 29.08.2001, the learned Civil Judge has dismissed the suit,
firstly on the ground that the defendant No.1 is not an owner but has a
leasehold right, hence, an agreement is void, secondly, the suit has not been
filed within a period of three years, hence, time barred and thirdly the
plaintiff is not entitled to a decree of a permanent injunction.
4. Being aggrieved by the aforesaid judgment, the appellant/plaintiff
preferred a first appeal before the District Judge, Sagar which came to be
dismissed vide judgment dated 13.05.2002 but granted a decree of return
of advance money within one month, at the rate of 9% if not deposited
within one month. Hence, this second appeal before this Court.
5. Vide order dated 06.01.2003, the appeal has been admitted on
following substantial question of law.
1. Whether lower appellant Court was justified in
refusing to grant specific performance of an agreement
(Ex.P-1), dated 19.02.1990 and by granting decree for
refund of consideration of Rs.3600/-?
2. When admittedly the defendant was the
Bhumiswami of the land by virtue of Patta in his favour
whether lower appellate court was justified in holding
that permission as contemplated under Section 165(7) of
MPLRC Code was necessary for sale of suit land by
defendant to plaintiff by entering into an agreement
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dated 19.02.1990 ?
3. Whether on the facts found, a decree for
specific performance in favour of plaintiff could be
passed ?
Having heard Shri Gandhi, learned counsel for the appellant
and perused the record. Defendant No.1 is absent despite service of the
notice.
6. Shri Gandhi, learned counsel for the appellant argued that the
learned Court below erred in law as well as well as on fact by dismissing
the suit as well as appeal despite finding that a valid agreement to sale was
executed with defendant No.1 . The defendant No.1 acquired the title of
Bhoomiswami as the lease was perpetuity in nature, therefore, he had a
right to sale the land. The lease was granted in the year 1982-83 and after
the period of 10 years he was competent to sell the suit land. The trial
Court has erred in dismissing the suit on the ground of limitation by
calculating the period of three years from 19.02.1990 whereas that
limitation is liable to be calculated from the date of refusal by the
defendant. If permission under Section 165(7) of MPLRC was required
which could have been obtained before execution of the sale deed but for
that the suit for specific performance was not liable to be dismissed. The
Appellate Court was not justified in directing for a refund of advance
money instead of granting the decree of specific performance.
Answer to Question of law No. (i) ,(ii) and (iii)
7. The First Appellate court has denied the decree of specific
performance of the contract due to non-compliance with the provisions of
Section 158(3) of M.P. Land Revenue Code, 1959 otherwise all the
findings have been recorded in favour of the plaintiff. In the first appeal,
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the appellant filed additional evidence as Exhibit A/1 to A/11 and on the
basis of these documents and under the provisions of Section 158(3) of
M.P. Land Revenue Code, 1959, the First Appellate Court has held that
the defendant has perfected the title of Bhoomiswami but under Section
165(7)B of M.P. Land Revenue Code, 1959, the permission from the
Collector was required before sale of the suit land. The First Appellate
Court has also set aside the finding recorded by the trial Court about the
suit being barred by limitation and held that the suit is not time barred
hence directed for a refund of the advance money of Rs.3600/-. The
execution of the sale deed and readiness and willingness as pleaded by the
plaintiff remained uncontroverted as the defendant did not appear to
contest the suit.
8. The only issue which requires consideration is whether the Appellate
Court was justified in holding that the permission as contemplated under
Section 165(7) of M.P. Land Revenue Code, 1959 was necessary for the
sale of the suit land by the defendant to the plaintiff by entering into an
agreement dated 19.02.1990. The Appellate Court has already held that for
entering into an agreement to sell no permission is required under the
MPLRC. In an agreement to sale, defendant no.1 has agreed that if the
sale deed could not be executed within the time period prescribed in the
agreement, then the plaintiff shall be entitled to retain the possession,
hence no time limit was prescribed. Time was not the essence of the
contract between the plaintiff and the defendant. So far the permission of
the Collector is required that could have been obtained by defendant no.1
before executing the sale deed but he never approached the Collector or
other revenue authorities to get permission. Hence, the plaintiff was
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entitled to retain the possession as per the terms and conditions of the
agreement. During the pendency of this Second Appeal, defendant No.1
died. An application for bringing legal heirs was filed and abatement was
also set aside. The notices were issued to the legal heirs but no one
appeared. Hence, an application for bringing legal heirs was allowed.
Despite service, no one appeared on 23.10.2018 and 23.9.2022 and even
today, hence, all the questions of law are answered in favour of the
appellant as he has wrongly been denied the decree of specific
performance of the contract for want of non-compliance of Section
165(7)B of M.P. Land Revenue Code, 1959. The second Appeal is liable to
be allowed on the following grounds:-
(1) That learned Appellate Court ought to have granted the decree of
specific performance of contract instead of granting the decree for refund
of consideration of Rs.3,600/-.
(2) When admittedly, the defendant No.1 has been declared
Bhoomiswami of the suit land by the first appellate court then the plaintiff
cannot be denied the decree of specific performance for want of
permission under Section 165(7) of MPLRC which could be obtained
before execution of the sale deed. The State Government is one of the
defendants in this suit through Collector. Hence, the question of law No.2
is also answered in favour of the appellant.
(3) In view of the above facts and circumstances that the plaintiff is
already in possession of the suit land. He had paid Rs.3,600/- out of
Rs.5,000 of sale consideration. Neither the original defendant nor legal
heirs appeared in the suit, first appeal and in this Second Appeal to oppose
the relief of specific performance. Hence the plaintiff is entitled for the
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decree of the specific performance of the contract as he cannot remain in
possession without title by way of a registered deed of conveyance. The
plaintiff I also entitled to the decree of a permanent injunction.
9. Hence, the judgment dated 29.08.2001 passed in Civil Suit No.113-
A/2000 by Civil Judge, Class-II, Sarangpur and judgment dated
13.05.2002 passed by District Judge, in Civil Appeal No.19-A/2002 are
hereby modified and the suit is decreed in favour of the plaintiff. The legal
heirs of the defendant are directed to execute the sale deed in favour of the
plaintiff within a period of two months from today, failing which the
plaintiff shall be entitled to get the sale deed executed from two Courts
subject to permission granted by the Collector and if the legal heirs fail to
apply for permission then the Court shall obtain a permit and execute the
sale deed. The plaintiff shall be entitled to the cost of litigation from
defendant No.1.
The defendants are restrained directly or through any other to
interfere with the possession of the plaintiff on the suit land.
A decree be drawn according to and the record of both the courts be
sent back.
(VIVEK RUSIA)
JUDGE
vs
Signature Not Verified
Signed by: VARSHA SINGH
Signing time: 3/15/2023
2:47:51 PM
