Heard learned Counsel for the appellants.
2) The Judgment and decree directing the defendant to execute saledeed in favour of plaintiff (Respondent) is under challenge in Second Appeal.
3) The facts of the case are :
The defendant and his brother Grangaram has agreed to sell 2 acres 4 gunthas land for total consideration of Rs.11,000/- and plaintiff paid an amount of Rs.8,000/- and he received possession on the next day of Registered agreement of sale (Exh.83). After 4 years, the plaintiff again paid Rs.500/- under a receipt (Exhibit-89) to the defendant on 10.03.1977. It was agreed, the defendant to execute sale deed in respect of suit land after he had obtained permission from Collector. The application for Collector?s permission remained with plaintiff, since it was not submitted any time. It is alleged, the defendant was avoiding to obtain the permission. The plaintiff asked defendant and his brother by notice dated 30.11.1979 to execute the saledeed.
4) Defendant denied the nature of transaction to be of sale it as a money lending transaction for loan of Rs.4,000/- but plaintiff showed payment for Rs. 8,000/- allegedly made at home. Defendant was not absolute owner of property. There could not be sale of property, as sale of agricultural lands is prohibited and Collector?s permission was mandatory. It was a Inam land and sales are prohibited due to implementation of Bombay Prevention of Fragmentation and Consolidation of Holdings, Act. It was agreed that to satisfy the loan amount, the plaintiff will collect the income by yield of the suit land for five years. Since plaintiff has enjoyed exhausted, the five years? agreed period, defendants do not owe to the plaintiff. He denied the subsequent Receipt of Rs.500/- (Exh.89). The agreement of sale is not enforceable in law.
5) The learned Civil Judge, Junior Division, framed 23 Issues as per Exhibit-71, recorded plaintiff?s readiness to perform his part of contract and accepted the plaintiff?s contention for specific performance of contract. The learned Judge felt, death of another executant to document is not fatal to transaction.
6) The first Appellate Court, while confirming the decree, accepted that defendant and his brother has executed the Agreement of sale, however recorded that 7/12 extract refers half share which is 84 R. and as Gangaram is no more, hence defendant is absolute owner of the property.
7) The first Appellate Court recorded, agreement of sale provided completion of sale within 30 days of permission, and transaction is not hit by limitation. It found, the suit land could not be said to be Inam land and land is not a fragment requiring permission.
8) This Second Appeal was admitted on 29.1.1993 on following grounds :
(i) When there are two persons, who contracted jointly and if one of them is not brought forth by the other party to that contract, then, it is the question of law in respect of the deficiencies of the contract, agreement of sale, validity of that contract and the enforceability of such contract.
(ii) Total neglection of the provisions of the Fragmentation Act is also the point of law that can be decided in the Second Appeal.
9) The submission of Counsel for the appellants commenced from 23rd January, 2009 and was adjourned to 27th January, 2009. On that day, at the instance of Counsel for the respondent, it was adjourned to 28th January, 2009. The submission of Counsel for the appellant completed on 28th January, 2009. It was adjourned to 30.01.2009 at 3.00 p.m. to facilitate the Counsel for respondent to make his submissions. Again it was adjourned to 3rd February, 2009 as prayed by both the Counsels. However, the matter was not attended. Mr.Nagargoje Counsel for the appellant in writing has communicated the counsel for the respondents about the next date. The matter was adjourned to 5th February, 2009. Counsel for the respondent was again communicated, however, he did not remain present. The matter came to be adjourned to 9th February, 2009. Respondent?s Counsel did not attend the matter. Again since there was no response from respondent, the submissions of Mr. Nagargoje were heard, the matter came to be adjourned to 12th Febraury, 2009 under the caption of Judgment. On that day, since Counsel for the respondent did not turn up, Mr. Nagargoje again made his submissions informing non-compliance of Section 16-C of the Specific Relief Act. There was written communication to the Counsel for respondent, but he did not turn up. Matter was adjourned to 20th February, 2009. The noting date 24th February, indicates that Mr. Nagargoje for the appellant has substantially argued the matter. He has communicated to Mr. S.R.Barlinge, learned Counsel for the respondents. There was no response. There is no argument from the respondents in spite of availing sufficient opportunities and hence the matter was kept for Judgment on 27th February, 2009 at 2.30 p.m. On 27th February, 2009, the Counsel for the respondent did not turn up, the judgment was consequently pronounced. The conduct of the respondents Counsel is demonstrative of apathy to appear in old matters and the Court had no option but to proceed with the matter, with available material without assistance from the respondents Counsel.
10) The Registered Agreement of ale in question is dated 28.12.1974, Receipt of Rs.500/- is dated 10.3.1977; Notice was issued on 30.11.1979 and suit is filed on 22.1.1980. It is an admitted fact, the original application under signature of defendant and his brother, to be submitted to Assistant Collector was with plaintiff. Both the Courts held making of application was a obligation cast on the defendant. However, they did not consider that, when application was collected by plaintiff, it was plaintiff to comply. The statements of Seller and purchasers are required before said authority, consequently, casting responsibility on defendant alone and hence reckoning period of limitation from date of notice, was not a correct legal approach. It more lean to the fiction of Courts.
11) The Agreement (Exh.83) specify handing over possession to the plaintiff at the time of sale-deed, still plaintiff asserts to be in possession since 1974. Even otherwise, owing to the law in prevalence at the material time, defendant could not part possession based on agreement of sale, unless, transaction is recognized and approved by Assistant Collector. Section 7(1) of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, restricts to transfer of any fragment in respect of which a notice has been given under sub-section (2) of Section 6 (except a owner of) a contiguous survey number or recognized sub-division of a survey number; The inhibition is applicable to even the Agreement. The plaintiff was admittedly not possessing contiguous survey number. The transaction was not of entire Gut number, but for a piece of 84 R which legally could not be segregated, as property of four brothers was joint. It follows, the transaction was hit by provisions of said Act.
12) The appellants Counsel contended that the pleadings in a suit for specific performance warrant readiness and willingness which is conspicuously absent. The land was Inam land. There was restriction for alienation to the small pieces of land. As the plaintiff has come with a case of execution of agreement to sell by defendant and his brother, Gangaram, non impleadment of legal heirs of Gangaram or bringing them on record in the suit for specific performance foreclose such claim and contract comes to an end.
13) In a suit seeking for specific performance requires the plaintiff to plead readiness and willingness to perform his part of contract. The pleading to this context is reflected in paragraph 2 of the plaint, which reads, "the plaintiff has asked the defendant for executing sale deed of the property; the defendant has avoided and did not execute sale deed. " Presently there is no legal impediment to the transaction. Hence the plaintiff has issued notice to the defendant and his brother on 30.11.1979 to execute the sale deed. The defendant has given a false reply dt.17.12.1979 and refused to execute sale deed. Hence the suit seeking directions against the defendant to execute the sale deed." This part of the pleading naturally, needs a support in the deposition of the plaintiff Vasudeo. He says that he has received possession of the property on the next day after execution of sale deed. There is possession receipt executed by defendant. He has issued a registered notice to the defendant and thereby asked defendant to execute the sale deed in respect of the suit land in his favour.
14) The Apex Court in Syed Dastgir?s case (1999) 6 SCC 337) observed - "Unless a statute specifically requires a plea to be in any particular form, it can be in any form. No specific phraseology or language is required to take such a plea. The language in Section 16(c) of the Specific Relief Act, 1963 does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. so the compliance of ?readiness and willingness? has to be in spirit and substance and not in letter and form."
15) The first appellate Court did not formulate the point relating to the plaintiff was ready and willing to perform his part of the contract. However, observations in paragraph no.17 in the judgment of the first appellate Court are as under:
" Admittedly, the plaintiff though has not (in) specific words pleaded in the plaint about his readiness and willingness to perform his part, his conduct regarding the payment of Rs.500/- on 10.3.1977 vide Exh.89, so also request to defendant from time to time to do the needful to execute registered sale deed is more than sufficient to come to the conclusion that the plaintiff was ever ready and willing to perform the contract on his part. "
16) Section 16(c) of Specific Relief Act requires in a suit for specific performance who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him or other than terms of performance of which has been prevented or waived by the defendants. Section 16 creates a bar for enforcement of a contract, if such averments are missing.
17) Explanation-II indicates as under:
" The plaintiff must aver performance of or readiness and willingness to perform the contract according to its proved construction."
This essential part which is requirement under the statute, is absolutely missing in the plaint as portrayed hereinbefore. The observation of the first appellate Court quoted are more leaning to be non application of mind to the factual position and are sketchy in its nature. It has taken divorce from the evidence of plaintiff quoted above. On this ground plaintiff fails.
18) In fact, the plaintiff himself had become incapable of performing or he has violated the essential terms of contract by keeping the original application with him which was required to be moved to the competent revenue authorities. It was probably because the plaintiff was showered with parting of possession by the defendant and his brother Gangaram, the plaintiff was more keen to enjoy the crops in agricultural field than to make payment of his part of his obligation or to make the application to the competent authority. It is clear that the plaintiff has violated the essential terms of his obligation in contravention of the contract and he has varied the same.
19) The witness for Agreement of Sale, P.W.2 -Raghunath, is a cousin of the defenadnt. He confirmed his signature to the agreement of sale, Exh.83. However, he denied as to contents of the document, as according to him, it was already written. He had not read the same; he simply signed the document. He states in the examination-in-chief, he cannot tell as to what was decided on that day in between the plaintiff and defendant. The other witness - Jagannath Girdhar Sonawane has denied about the transaction. He stated that the amount of Rs.500/- was taken by the defendant. He was present and signed on the document dated 3.10.2007 (Exh.89). In the cross-examination, he has accepted that receipt was already written before he reached there. He has signed on the receipt as directed by plaintiff and defendant. The receipt was in connection of giving and taking money. He has no personal knowledge of the transaction, which was between plaintiff and defendant. These two witnesses are not properly appreciated by both the Courts. On the other hand, the Courts have erroneously held that these two witnesses have proved either the agreement of sale or Receipt, Exh.89.
20) The other crucial aspect in the matter is, the Agreement of Sale (Exhibit-83) was by defendant and his brother - Gangaram. The notice, Exh.85, was issued to both the brothers and the reply Exh.86 was by both the brothers. However possession receipt Exh.98 dt.28.2.1974 is by Hari Kashiram Sonavane (Appellante/defendant) The 7/12 extract at Exh.84, is not read in proper tune by the learned Judge. The entries in the revenue record Ex.94 till 1978-1979 was in the name of the defendant and his brother. They had raised society loan for crops. The learned Judge should have considered these aspects. The land at the time of its agreement was Survey No.331/1 and in Consolidation, it was given as Block No.609, still the ownership of the defendant and his brother Gangaram remained with other two brothers. In a suit for specific performance of contract, where the agreement was by two brothers, the notice seeking performance of the contract was issued to two brothers, the contract was joint and indivisible with the defendant and his brother, there was no demarcation of the property, the death of Gangaram and not impleading his legal heirs to the suit or not seeking performance of contract from them vitiates the transaction. The right to sue does not survive to the plaintiff due to death of one of the executant. The suit in the form it was filed was not maintainable as Gangaram or for that purpose his legal heirs were necessary parties to the suit. The pleading that it was defendant, who has agreed to sell two acres and 4 gunthas agricultural land from gut No. 609, is contrary to the agreement of sale.
21) The plaintiff and his witness, PW 4 have stated that at the time of agreement of sale, the amount of Rs.8,000/- was given to the defendant as earnest. However, the Agreement of Sale, Exh.83, indicated that the amount was paid at house. I do not wish to give much emphasis on this anomaly.
22) The possession of the suit land was allegedly given on 28.2.1974 by Hari, which is not legally proved. This document, in fact, cannot be acted upon as the signature of Hari is on the obverse when there was sufficient space for his signature at the front page where the contents of the document are written.
23) Exhibit-89 - Bharana Pawati dated 10.03.1977 is purported to be signed by Gangaram Kashiram (deceased brother) and at left side on revenue ticket of 10 paisa, it bears signature of Hari Kashiram Sonavane and Santosh Hari Sonawane. Namdeo Hari Sonawane has endorsed receip
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t of Rs.495/- in his presence. This payment receipt is not free from doubt. A impression is generated that either first signatures were obtained and later the contents/script was written, or they were obtained on blank sheet. 24) In the reply dated 17.12.1979, Exh.86 to the notice dated 30.11.1989 (Exh.85) by Gangaram Kashiram and Hari Kashiram (Appellant), they have disputed the transaction to be of absolute sale and pointed that the agricultural property was more than worth Rs.20,000/- and the Receipt dated 10.3.1977 for Rs.500/- was nothing, but interest. It was pointed that for the years 1974-1975 to 1978-1979, the plaintiff has enjoyed fruits in the agricultural land and consequently, the loan is discharged and the defendant owe nothing. Even it was settled in presence of four responsible villagers, consequent thereupon, it was the defendants who have sowed the field and have taken the agricultural income. Thus, the notice under reply makes the things clear. This is supported by revenue entries, Exh.94. 25) Thus, findings recorded by both the Courts do not flow in consonance to the record and legal position. The substantial questions are answered in affirmative. Hence, order : ORDER (i) The appeal is allowed. The judgment and Decree in Regular Civil Suit No.12/1980 passed by Civil Judge, Junior Division, Yawal, dated 31.08.1985, and Regular Civil Appeal No.308/1985, of the District Court, Jalgaon, decided on 20.08.1992, is set aside. (ii) The Respondent to restore possession of suit property within three months. No costs. 26) In view of disposal of the appeal, CA No.153/1993 becomes infructuous, it is disposed of.