Gujarat High Court
Collector, vs Verubha Sabalsing,Decd.Thro' His ... on 20 September, 2018
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/FA/537/1999 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 537 of 1999
With
R/FIRST APPEAL NO. 538 of 1999
============================================
COLLECTOR, BANASKANTHA ...APPELLANT
Versus
VERUBHA SABALSING
DECD.THRO' HIS HEIRS ...RESPONDENTS
============================================
Appearance :
MR S N SHELAT, SENIOR ADVOCATE with
MR PREMAL R JOSHI, ADVOCATE for the APPELLANT
MR DEVEN PARIKH, SENIOR ADVOCATE with
MR NISARG DESAI, ADVOCATE for
NANAVATI ASSOCIATES for the RESPONDENTS
============================================
CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 20/09/2018
CAV JUDGMENT
1.1 These two Appeals are directed against the common judgment and decree dated 10.11.1998 passed by the Trial Court (City Civil Court, Ahmedabad) in Civil Suit No.2166 of 1977 and Civil Suit No.2397 of 1978.
1.2 The appellant in both the appeals is the same Authority (the District Collector, Banskantha at Palanpur). The suit land Page 1 of 31 C/FA/537/1999 CAV JUDGMENT in both the suits is also the same.
1.3 The present appellant had filed Civil Suit No.2166 of 1977 to recover the vacant possession of the suit land and mesne profit from the defendant - the present respondent. The said suit is dismissed by the Trial Court, qua the principal relief, seeking possession of the suit land from the defendant. The said defendant (of Civil Suit No.2166 of 1977) was the plaintiff of Civil Suit No.2397 of 1978. In the said suit (i.e. Civil Suit No.2397 of 1978), the said plaintiff (i.e. the present respondent) had prayed for specific performance of an agreement to sell (pertaining to the very same land). The Trial Court has decreed the said suit.
1.4 The above two parts of the said common judgment and decree is challenged in these two appeals being First Appeal No.538 and 537 of 1999, respectively. In other words, challenge in First Appeal No.537 of 1999 is made by the original defendant to the judgment and decree in Civil Suit No.2397 of 1978. In First Appeal No.538 of 1999, challenge is made by the original plaintiff to the judgment and decree in Civil Suit No.2166 of 1977.
1.5 So far the second prayer in Civil Suit No.2166 of 1977 (pertaining to mesne profit) is concerned, the Trial Court has granted Rs.500/- per month towards mesne profit. That part is not under challenge and therefore the same is not gone into by this Court.
2. Heard learned advocates. It is noted that, learned senior advocates for both the sides have extensively taken this Court Page 2 of 31 C/FA/537/1999 CAV JUDGMENT through the record and proceedings of the Trial Court. The said Record is considered by this Court in original. It is also noted that, learned senior advocates for both the sides have read the judgment of the Trial Court almost line by line.
3.1 Mr. S.N. Shelat, learned senior advocate for the appellant has submitted that, the Trial Court fell in error, on more than one points, while recording the impugned judgment. It is submitted that, the findings and the final judgment of the Trial Court is erroneous to the extent it has allowed Civil Suit No.2397 of 1978 and also to the extent, it has dismissed Civil Suit No.2166 of 1977. It is submitted that, the present respondent is not entitled to get any relief as the plaintiff (in Civil Suit No.2397 of 1978), which the Trial Court has granted, and further that the present appellant is entitled to get back the possession of the suit land from the present respondent (standing as the plaintiff in Civil Suit No.2166 of 1977), which the Trial Court has not granted.
3.2 It is submitted that, the reasons recorded by the Trial Court are erroneous inasmuch as while deciding the matter qua specific performance, there could not be any parameter like compliance of principles of natural justice, which has weighed with the Trial Court. It is submitted that when it comes to the question of specific performance of an agreement to sell, it is governed by the stipulations in the agreement and compliance of the principles of natural justice has no play in it. It is submitted that thus, the conclusion of the Trial Court that there was illegality on the part of the present appellant, since there was violation of the principles of natural justice, is ill-founded. It is submitted that the same calls for Page 3 of 31 C/FA/537/1999 CAV JUDGMENT interference.
3.3 Mr. Shelat, learned senior advocate has further submitted that, one of the factors which weighed with the Trial Court is that, the present respondent had sent communication dated 31.03.1975 (Exh.86) to the Government, intimating therein specific amount, which according to him was payable to the Government, for which, he had asked for confirmation of the State Authorities. It is submitted that the plaintiff had to act as per the agreement and no confirmation from the State Authority was required in that regard. It is submitted that since the said letter of the present respondent was not responded to by the State Authority, confirming the amount which he had to pay, that is the factor which has weighed with the Trial Court against the present appellant, which is erroneous and the same needs to be interfered with.
3.4 Mr.Shelat, learned senior advocate has further submitted that, the time was the essence of the contract and that factor is not appropriately considered by the Trial Court. It is submitted that the present respondent was not ready and willing to perform his part of the contract and therefore, keeping in view the provisions of the Specific Relief Act, the relief as prayed for by the present respondent in Civil Suit No.2397 of 1978 could not have been granted by the Trial Court. It is submitted that the amount was required to be paid on or before 30.04.1975, and failure on the part of the present respondent to do so, was sufficient ground to come to the conclusion that there was breach of condition on his part, which was liable for cancellation of the said agreement.
Page 4 of 31 C/FA/537/1999 CAV JUDGMENT3.5 It is submitted that, the conduct of the present respondent would also dis-entitle him from claiming any relief. It is submitted that though the agreement to sell was terminated by the State vide letter dated 27.11.1975 (Exh. 87), the present respondent filed the suit for specific performance as late as in the year 1978. It is submitted that, it is the present appellant who first filed suit for recovery of the possession of the suit land (vide Civil Suit No.2166 of 1977) and only thereafter the present respondent filed suit for specific performance of agreement to sell (vide Civil Suit No.2397 of 1978). It is submitted that this is the factor which should weigh against the present respondent. It is further submitted that, though it was agreed by the present respondent that he would not raise issue of tenancy, he raised the said issue before the Trial Court. This factor should also weigh against him.
3.6 Mr. Shelat, learned senior advocate has extensively taken this Court through the record and proceedings of the Trial Court. Attention of this Court is specifically invited to various documents like Exh.84 dated 07.06.1974, Exh.85 dated 18.11.1974, Exh.86, Exh.88 and Exh.87. By referring to these documents, it is submitted that the findings of the Trial Court are erroneous on various counts and these appeals be allowed.
3.7 In support of his submissions, Mr.Shelat, learned senior advocate for the appellant has relied on the following decision of the Supreme Court of India.
(i) AIR 1993 SC 1742 - Chand Rani Vs. Kamal Rani.
(ii) AIR 2010 SC 577 - A.K. Lakshmipathy (D) Vs. Rai Page 5 of 31 C/FA/537/1999 CAV JUDGMENT Saheb Pannalal H. Lahoti Charitable Trust.
4.1 On the other hand, Mr. Deven Parikh, learned senior advocate for the respondent has submitted that the Trial Court has not committed any error on any count and no interference be made by this Court.
4.2 It is submitted by him that, in the present case, considering the totality of the circumstances, it could not be said that, the time was essence of the contract. It is further submitted that, even if it is assumed that it was so, then also, the present respondent could not be blamed for it, since it is a matter of record that the time limit could not be complied with for the reasons which were wholly attributable to none else than the present appellant and the State Authorities themselves. He has drawn the attention of this Court to various provisions of the Indian Contract Act, 1872. He has further submitted that, the State Authority had, by its own conduct, given a go-by to the stipulation with regard to time limit. It is further submitted that, no person can be permitted to take advantage of his own default. It is submitted that, the present appellant had so attempted and the Trial Court has rightly not permitted the same and no interference be made by this Court.
4.3 It is further submitted that, there is a concept of duty to speak. In this regard, attention of this Court is invited to the contents of the letter dated 31.03.1975 (Exh.86), vis-a-vis relevant clauses in the agreement Exh.88. Attention of this Court is specifically invited to clauses No.11, 13 and 15 of the said agreement. It is submitted that on conjoint consideration Page 6 of 31 C/FA/537/1999 CAV JUDGMENT of the said material, it was incumbent upon the appellant / State to respond to the letter Exh.86 and the said inaction itself is attempted to be taken advantage of by the defaulter himself, which is rightly not permitted by the Trial Court. In this regard, reliance is placed on the decision of the Supreme Court of India in the case of Arosan Enterprises Ltd. Vs. Union of Undia reported in (1999) 9 SCC 449.
4.4 It is submitted by learned senior advocate for the respondent that both these appeals be dismissed. In support of his submissions, he has also relied on the following decisions of the Supreme Court of India.
(i) (2004) 8 SCC 689 - Swarnam Ramachandra (Smt.) Vs. Aravacode Chakungal Jayapalan.
(ii) (2006) 5 SCC 340 - Panchanan Dhara Vs.
Monmatha Nath Maity.
(iii) (2006) 1 SCC 148 - Amteshwar Anand Vs.
Virender Singh.
5. Having heard learned senior advocates for both the sides and having considered the Record and Proceedings as received from the Trial Court, this Court finds that, the following four points arise for determination in these appeals.
(i) Whether the action of the State as contained in its communication dated 27.11.1975 (Exh.87), informing the present respondent that 'the agreement to sell the suit land (Exh.88) stands terminated, and the amount paid by the Page 7 of 31 C/FA/537/1999 CAV JUDGMENT respondent is forfeited', was legal and proper, and
(ii) Whether the Trial Court has committed any error while interfering in the said decision of the State and allowing the suit (being Civil Suit No.2397 of 1978) filed by the present respondent, and
(iii) Whether the appellant is entitled to recover the possession of the suit land from the present respondent, and
(iv) Whether the Trial Court has committed any error by not granting the relief to the present appellant in Civil Suit No.2166 of 1977, qua the recovery of the possession of the suit land from the present respondent.
6. The relevant facts for the purpose of deciding these appeals and the above noted points for determination, as emerging from the record, are as under.
6.1 The present respondent is in possession of the suit land, even prior to 01.04.1957 (the tillers' day).
6.2 The Ambaji Mata Temple Trust who claimed ownership over the said land, decided to sell the suit land. For that purpose, offers were invited from the public. The present respondent, who was even otherwise having the possession of the suit land, was the only person, who came forward to purchase the said land.
6.3 The offer of the present respondent was initially not Page 8 of 31 C/FA/537/1999 CAV JUDGMENT accepted, however subsequently, the respondent gave revised and enhanced offer. There was further negotiation, the offer was still enhanced and ultimately the revised offer of the respondent dated 02.11.1972 (Exh.88) was accepted by the Government.
6.4 The land was claimed to be owned by the Temple Trust. The Temple Trust itself was and even now is managed by the State. The Collector of the concerned District (District :
Banaskantha) was the Administrator of the said Temple Trust. The permission of the Government to dispose of the suit land was required. The said permission was asked for by the Collector and the same was subsequently granted by the Government.
6.5 One of the stipulations in the agreement to sell (Exh.88) was to the effect that "Permission to sell the land in question shall be obtained in view of the Gujarat Vacant Lands in Urban Areas (Prohibition of Alienation) Act, 1972." The relevant part of said stipulation No.14 reads as under.
"Permission to sell the land in question shall be obtained in view of the Gujarat Vacant Lands in Urban Areas (Prohibition of Alienation) Act, 1972 by the Vendor and purchaser by making a joint application ..........."
6.6 The above facts are not in dispute and the same are evident from the communication sent by the Collector to the Government in Revenue Department (Exh.73). This Court has Page 9 of 31 C/FA/537/1999 CAV JUDGMENT considered the contents of Exh.73. It reads as under.
"Exh.73 To The Secretary, Government of Gujarat, Revenue Department, Sachivalaya, Gandhinagar.
Sub: Application for exemption Sale of land bearing S.No.257 of (and Ahmedabad under Section 7 of the Gujarat Lands in Urban Areas (Prohibition of Alienation) Act, 1972.
========= Sir, We, the applicants :-
(1) Chairman, Shri Ambaji Mataji Devasthan Managing Committee Palanpur, Dist.Banaskantha (Proposed Vendor).
(2) Parmar Verubha Sabalsing, Khoja's Bhatta, Sarkhej Road, Ahmedabad-7 (Proposed Vendee).
submit as under:-
1. The land comprised in S.No.257 of Page 10 of 31 C/FA/537/1999 CAV JUDGMENT Paldi, Taluka City, Dist. Ahmedabad which is now included in T.P. Scheme No.6 (Paldi) and given Final Plot No.379 Admeasuring A.2-33 Gs. i.e. 13332 sq.yds, according to final joint measurement is of the ownership of Arasuri Ambaji Mata Temple.
2. The land in question was proposed to be sold by public auction but no bider came forward to offer the land at an upset price of Rs.15/- per sq.yd. The applicant No.2 offered in writing to purchase the same on 9.1.64 on the terms and conditions laid down therein, which was accepted by the Govt. in Legal Dept., and applicant No.2 credited in all Rs.50,000/- and the remaining amount of consideration was not paid in time. As a result of which the said amount of Rs.50,000/- credited by 19th August, 1964 by the applicant No.2 was forfeited.
3. The applicant No.2 still remained in possession of the said land and is cultivating the said land uptill now.
4. During the time the applicant No.2 requested the authorities to reconsider his case and to sell the land to him which request has been considered by the authority and the Govt. in legal Dept. by Page 11 of 31 C/FA/537/1999 CAV JUDGMENT their letter No.10/AMT/49/25771/E dated 16th November, 1972 accepted the offer of applicant No.2 and the applicant No.2 has, as per the terms of the offer, credited Rs.1001/- in the office of Administrator Ambaji Temple at Ambaji on 21.11.72 vide receipt No.6535.
5. The land in question is therefore requires to be sold to applicant No.2 but in view of the Gujarat Vacant Lands in Urban Areas (Prohibition of Alienation) Act No.12 of 1972 necessary exemption under Section 7 (1) of the said Act requires to be granted for the purpose of said alienation.
6. The applicants therefore request to grant necessary exemptions for the following reasons.
(a) The applicant No.2 is an agriculturist.
(b) The applicant No.2 uses this land for agriculture purposes till today.
(c) According to the applicant No.2, he could have availed himself of the benefit of Tenancy Laws and could have become deemed purchaser of the land but for the fact that the land is included in the T.P. Page 12 of 31 C/FA/537/1999 CAV JUDGMENT Scheme.
(d) The Govt. in legal Dept. had in past agreed to sell this land to applicant No.2 but could not be sold because the applicant No.2 could not credit the amount of consideration in stipulated period and has lost Rs.50,000/- already credited by him.
(e) By the purposed sale the temple would be granting Rs.199980/- and an additional sum of Rs.19998/- if it is taken into consideration the fact that in the past it was agreed to be sold at Rs.15/- per sq.yard which at present it is proposed to be sold at Rs.16.50 per sq. yd. The proceeds would be utilized to the best advantage of the Temple and its devotees, as at present the Temple is not getting any income. It would also save the Temple from several litigations, hardship, inconvenience etc. Copies of the letter incorporating the offer made by the applicant No.2 and the letter of acceptance by the Govt. in Legal Dept. together with a copy of the Pahani Patrak are attached herewith.
Dated this day of 1973. Page 13 of 31 C/FA/537/1999 CAV JUDGMENT Sd/- (Shri P.Basu),IAS Chairman, Shri Ambaji Mataji, Managing Committee & Collector, Banaskantha & Parmar Verubha Sabalsinh"
7.1 Two fold permissions were required for the sale of the suit land. The first, as noted above, was under Section 7 of the Gujarat Lands in Urban Areas (Prohibition of Alienation) Act, 1972. The second was from the Charity Commissioner of Gujarat State, since the property of a Temple Trust was to be disposed of. The vendor was the Collector (as the Administrator of the Temple Trust). The permissions were to be asked for and granted by the State Authorities. The sale deed could not have been executed without these two permissions.
The present respondent could not have been condemned by the State, for any inaction or delay in obtaining those permissions.
7.2 At more than one stages, the respondent requested / reminded the State as to when the sale deed would be executed, since the time limit was to expire and let him not be blamed for it. This is evident from his letters dated 13.06.1973 (Exh.74), dated 04.07.1973 (Exh.75), dated 25.07.1973 (Exh.76) etc. 7.3 The above referred letters dated 13.06.1973 & 04.07.1973 (Exh.74 & 75) were responded by the Government in Legal Department to the respondent on 10.08.1973 Page 14 of 31 C/FA/537/1999 CAV JUDGMENT (Exh.77), inter alia stating therein that:-
'the matter about granting exemption under Section 7 of the Gujarat Lands in Urban Areas (Prohibition of Alienation) Act, 1972 is still under consideration of the Government.' The said letter further states that:-
'further I have to inform you that as you have paid Rs.25,000/- within the stipulated period, it has been decided to extend the time limit as requested by you, by three months ending 16.08.1973.' It is noted that, the permission granting exemption under Section 7 of the Gujarat Vacant Lands in Urban Areas (Prohibition of Alienation) Act, 1972, had not come even by that extended time.
7.4 The exemption as required under Section 7 of the Gujarat Lands in Urban Areas (Prohibition of Alienation) Act, 1972, for the sale in question was granted by the Government in Revenue Department vide order dated 07.06.1974 (Exh.84).
7.5 The permission as required from the Charity Commissioner, for the transaction in question, was granted vide order dated 18.11.1974 (Exh.85).
7.6 The fact that the Charity Commissioner has granted permission for the sale of land in question vide its order dated 18.11.1974 was conveyed to the respondent on 17.12.1974, as Page 15 of 31 C/FA/537/1999 CAV JUDGMENT indicated by the State itself in its subsequent letter dated 27.11.1975 (Exh.87).
8.1 The time of six months would have thus expired on 18.05.1975 / 17.06.1975 (starting from 18.11.1974 / 17.12.1974). The respondent had, much before the expiry of the said period, intimated to the Government - Secretary of the Legal Department, on 31.03.1975 (Exh.86) that, he is ready to make payment for the sale deed before 30.04.1975 and according to him, the exact figure of the amount to be paid by him to the Government was Rs.1,85,059=50 paisa. It was requested by him to the Government that the said amount be confirmed, so that it can be paid and needful be done for the execution of the sale deed. It was also indicated by him that, he was in a position and willing to pay the said amount on or before 30.04.1975.
8.2 The Government sat tight over the above request and suddenly on 27.11.1975 (vide Exh.87) informed the respondent that, the agreement stands terminated and the amount paid by the respondent is forfeited.
8.3 The above action of the State was the subject matter of challenge before the Trial Court in Civil Suit No.2393 of 1978. If the chronology of the events as noted above is weighed in totality, this Court finds that, the impugned action of the State is not only illegal and arbitrary but there is no object sought to be achieved by it. As noted above, it is not in dispute that, the intention of the State was to dispose of the property in a transparent manner. There was no buyer. The respondent was the only person who had offered to buy the property. He was Page 16 of 31 C/FA/537/1999 CAV JUDGMENT even otherwise in the possession of the suit property. At this stage reference needs to be made to the letter written by the Collector Banaskantha to the Government (Exh.73) more particularly, para:3 and 6(c) thereof which is quoted in para:6.6 above. Keeping these aspects in view, the offer of the respondent was duly accepted by the Government. There is no allegations of any kind of manipulations / malpractice or even impropriety in the said acceptance. The matter was delayed by few months, only for the purpose of obtaining necessary permissions by the Government Authorities, from the Government Authorities and as soon as that procedural aspect was completed, the respondent (in whose favour the sale was to be executed) had already informed even the exact figure of the amount, that was payable by him to the Government and he had asked for confirmation thereof. It is not that the respondent had entered into some unnecessary correspondence or he wanted to delay the execution of the sale deed. If according to the State, there was nothing to be confirmed, even that could have been informed to the respondent. In the view of this Court, the confirmation of the said figure by the Government was required considering some of the stipulations in the agreement Exh.88, more particularly stipulation No.11 and 13. Stipulation No.11 talked about some payment towards cost of litigation of Civil Suit No.1449 of 1972 which was filed by the Temple Trust against a third party, the cost of which was to be conveyed to the respondent by the Government (the Collector) and the same was to be paid by the respondent to the Government before the execution of the sale deed. Stipulation No.13 referred to Civil Suit No.1444 of 1967 (in which the respondent was not the party) but the cost of the said litigation was to be borne by the parties jointly. The Page 17 of 31 C/FA/537/1999 CAV JUDGMENT cost of these two litigations, may be very less amount, was to be quantified and informed by the State to the respondent.
Stipulation No.15 provided that, all these amounts were to be paid by the respondent to the Government before execution of the sale deed. In this factual background, the letter of the respondent dated 31.03.1975 (Exh.86) was required to be appropriately responded by the State. Even if the stand of the State is accepted that it was not required to confirm any amount, even that ought to have been intimated to the respondent. The action of the Government of not responding to the letter of the respondent dated 31.03.1975 (Exh.86), in the peculiar facts noted above, can not be permitted to be taken advantage of, by the Government itself to the detriment of the respondent. According to the State, the respondent purchaser was not required to wait for any such confirmation. This is the only aspect, which according to the Appellant State, was sufficient ground to unilaterally hold that, the agreement to sell stood cancelled. According to the Appellant, if the required amount was paid by the respondent on or before 30.04.1975 then everything was in order, but since he did not do so, that itself was sufficient to hold that the agreement in question stands cancelled. This can not be accepted. Firstly, if at all, it is to weigh against someone, it should weigh against the Government. In any case, the same would certainly not weigh against the respondent. For these reasons, this Court finds that, it was neither legal for the State nor proper in the facts of the case, to unilaterally hold that the agreement to sell stood terminated, for the reasons which were not attributable to the respondent.
8.4 There is an additional factor which would further tilt the Page 18 of 31 C/FA/537/1999 CAV JUDGMENT balance against the appellant. It is a matter of record that, from time to time, the Government had informed the respondent that since there is delay (though it was not attributable to him), the respondent is liable to pay interest. Reference in this regard can be made to the letter of the Government dated 05.09.1973 (Exh.79). When there was specific stipulation with regard to payment of interest, at the best, the State could have asked for interest as agreed between the parties.
8.5 In view of above, the first point for determination as noted earlier by this Court, needs to be answered by holding that, the action of the State, as contained in its communication dated 27.11.1975 (Exh.87), informing the respondent to the effect that :- 'the agreement to sell (Exh.88) stands terminated, and the amount paid by the respondent is forfeited' - was illegal and improper.
9. This Court has arrived at the above finding on independent appreciation of the evidence on record. The Trial Court has also arrived at similar findings, by recording detailed reasons in the impugned judgment. This Court has considered the reasons recorded by the Trial Court, more particularly from para:11 to 30. The satisfaction recorded by the Trial Court, which is well reasoned satisfaction, can not be found fault with, by picking up one or two lines in isolation, out of context. The argument on behalf of the appellant that the Trial Court fell in error while recording its finding with regard to breach of principles of natural justice, needs to be seen with this perception and therefore needs to be rejected. It is the substance of the reasoning which is to be seen and not few Page 19 of 31 C/FA/537/1999 CAV JUDGMENT words in isolation. Consequently, the point for determination (No.2) as noted above, is answered by holding that, the Trial Court has not committed any error while interfering in the said decision of the State and by allowing the suit being Civil Suit No.2397 of 1978 filed by the present respondent.
10.1 While confirming the judgment and decree of the Trial Court by answering the first two points for determination as noted above, it is noted that, learned senior advocate for the appellant has vehemently submitted that, the time was the essence of the contract and non-observance of the said time limit was fatal for the present respondent. On conjoint consideration of the facts and findings noted above, this Court finds that, the said argument would not take the case of the appellant any further in view of the following aspects.
10.2 This argument is made on behalf of the Collector as the vendor against the vendee. The sale was to be completed within a period of six months. It could not have been done without the permissions of the Authorities of the Government for the said transaction. Those permissions came much after the expiry of the time stipulated in the agreement. The present respondent had no control over the procedural aspect of those permissions - being asked for and being granted. The original period of six months as prescribed in the agreement was made un-enforciable by the State Authorities themselves.
10.3 Further, before the sale deed could be executed, the present respondent was to make the complete payment of the sale consideration. The said consideration was not only the price of the land in question, it also included payment towards Page 20 of 31 C/FA/537/1999 CAV JUDGMENT other heads as well. As noted above, three stipulations in the agreement Exh.88 being stipulation No.11, 13 and 15 are relevant. Stipulation No.11 talked about some payment towards cost of litigation of Civil Suit No.1449 of 1972, which was filed by the Temple Trust against a third party, the cost of which was to be conveyed to the respondent by the Government (the Collector) and the same was to be paid by the respondent to the Government before the execution of the sale deed. Stipulation No.13 referred to Civil Suit No.1444 of 1967, the cost of which was to be borne by the parties jointly. The cost of these two litigations, may be very less amount, was to be quantified and informed by the State to the respondent. Stipulation No.15 provided that, all these amounts were to be paid by the respondent to the Government before execution of the sale deed.
10.4 The respondent had, on his own, made some calculation in that regard and had also informed the same to the Government vide communication dated 31.03.1975 (Exh.86). In the said communication, he had shown his readiness to go for execution of sale deed (as a vendee) before 30.04.1975. He had only requested that, let the amount indicated by him (to be paid by him to the Government) be confirmed, so that, in substance, stipulation Nos.11, 13 and 15 could be complied with by him. The State did not respond to it and as late as on 05.09.1975 responded by saying that since the time limit is not observed by the present respondent, the agreement stands cancelled. In this chronology of events, this Court finds that, the argument of the State that, the time was the essence of the contract can not be accepted. Further, in view of the conjoint consideration of the findings recorded above, more Page 21 of 31 C/FA/537/1999 CAV JUDGMENT particularly in para:7.4, 7.5, 7.6, 8.1 and 8.2, the original period of six months, as stipulated in the agreement had already stood abandoned by the appellant vendor himself. The finding recorded in para:8.4 above would further tilt the balance against the appellant in this regard. Considering the totality, the argument on behalf of the appellant that the time was the essence of the contract and non-observance of the said time limit was fatal for the present respondent - can neither be permitted to be taken advantage by the appellant, nor it can weigh against the respondent.
11. The above would take this Court to the conclusion that the impugned judgment and decree needs to be confirmed, to the extent Civil Suit No.2397 of 1978 is decreed by the Trial Court.
12. Coming to the next question with regard to the second part of impugned common judgment, to the extent it has dismissed the Civil Suit No.2166 of 1977, this Court has (in para:5 above) noted the following two points for determination being point No.(iii) and (iv).
"(iii) Whether the appellant is entitled to recover the possession of the suit land from the present respondent, and
(iv) Whether the Trial Court has committed any error by not granting the relief to the present appellant in Civil Suit No.2166 of 1977, qua the recovery of the possession of the suit land from the present respondent."Page 22 of 31 C/FA/537/1999 CAV JUDGMENT
13. So far the above two points are concerned, this Court finds as under.
13.1 The present appellant had sought possession of the suit land from the respondent.
13.2 It is undisputed that the respondent has been in possession of the suit land, since prior to 01.04.1957 (the tiller's day).
13.3 The Collector, Banaskantha had also, while asking for permission from the Government, noted these circumstances in detail, as quoted above and the consequence thereof. (Para:
6.6 above).
13.4 Since the said land was agreed to be sold to the respondent, declaration was asked for by the Government from him to the effect that, he i.e. the present respondent shall give up his claim over the suit land as the tenant. (Stipulation No.7 - Exh.88). Subsequently, Government took the stand that the said agreement is cancelled. By this very stand, the claim of the respondent, over the suit land would revive along with his entitlement as a deemed purchaser, considering the fact of he being in possession of the suit land since prior to 01.04.1957 (the tiller's day). Under these circumstances, the respondent could not have been dispossessed from the suit land.
14. There is an additional factor against the appellant, so far the above noted two points (points No.(iii) & (iv)) are Page 23 of 31 C/FA/537/1999 CAV JUDGMENT concerned. The reasons recorded by the Trial Court indicate that, since the Civil Suit No.2397 of 1978 is decreed, as the consequence thereof, Civil Suit No.2166 of 1977 is dismissed. This Court finds that, there is material on record (as referred above) to hold that, even if Civil Suit No.2397 of 1978 was to be dismissed for any reason, that itself would not have been the sufficient ground to allow Civil Suit No.2166 of 1977. The said suit being Civil Suit No.2166 of 1977 (for recovery of possession of the suit land) could not have been decreed even otherwise (for the reason recorded in para:13.1 to 13.4 above).
15. For the above reason, the third point for determination as noted above, needs to be answered by holding that, the appellant was not entitled to recover the possession of the suit land from the present respondent.
16.1 The matter can be viewed from one more dimension. From record it transpires that, the following issues were initially framed by the Trial Court on 31.03.1982 in Civil Suit No.2166 of 1977 vide Exh.43. (in the suit seeking possession by the present appellant from the respondent).
1. Whether the plaintiffs prove that they are the members of the Managing Committee of Shri Arasuri Ambaji Mata Devasthan Trust?
2. Whether the defendant proves that the registration of the Arasuri Ambaji Temple Trust is ordered to be cancelled by the District Judge, Palanpur by his Judgment dated 31st March, 1964 ? If so, what is its Page 24 of 31 C/FA/537/1999 CAV JUDGMENT effect on this suit?
3. Whether the plaintiffs prove that the suit property is of the ownership of the plaintiff trust?
4. Whether the plaintiffs prove that the defendant failed to observe the terms and conditions of the first offer of sale dated 9th January, 1964 and, therefore, a sum of Rs.50,000/- paid by the defendant stood forfeited.
5. Whether the plaintiffs prove that the defendant even failed to observe the terms and conditions of the second offer of sale dated 2nd November, 1972 and, therefore, the sum of Rs.30,000/- paid by the defendant pursuant to the said offer also stood forfeited.
6. Whether the defendant proves that the members of the Managing Committee were required to obtain permission of sale under the Gujarat Lands in Urban Areas (Prohibition of Alienation) Act, 1972? If so, What is its effect?
7. Whether the defendant proves that the members of the Managing Committee of the plaintiffs Trust were required to obtain Page 25 of 31 C/FA/537/1999 CAV JUDGMENT permission for sale under the Bombay Public Trust Act and, therefore, they failed to obtain permission? If so, what is its effect?
8. Whether the defendant proves that he is a tenant of the suit land since prior to 1st April, 1957 under the Bombay Tenancy and Agricultural Lands Act, 1948?
9. Whether the court fees paid are proper?
10. Whether the suit is bad for non-joinder of parties and mis-joinder of causes of action?
11. It is proved that this court has got no jurisdiction to decide the suit?
12. Whether the plaintiffs are entitled to decree for possession of the suit land?
13. Whether the plaintiffs are entitled to claim mesne profits? If so, at what rate and from what date?
14. What order and decree?"
16.2 Subsequently it was agreed by all the parties (including the present appellant) that, the above issues are not required to be gone into and it is only the five issues (as noted by the Page 26 of 31 C/FA/537/1999 CAV JUDGMENT Trial Court in the judgment under challenge), which were indicated to be sufficient for adjudication of both the suits, jointly. Those issues are as under.
"1. Whether the plaintiffs of CS No.2397/78 prove that they are entitled to get relief of specific performance of the agreement for sale, as pleaded in the plaint ? (answered in affirmative)
2. Whether the plaintiff Trust of CS No.2166/77 proves that it is entitled to recover actual, real and vacant possession of the suit land in dispute?
(answered in negative)
3. Whether the plaintiff Trust of CS No.2166/77 proves that it is entitled to recover a sum of Rs.500/- per month by way of mesne profit from the defendant of CS No.2166/77?
(answered in affirmative)
4. Whether the plaintiff Trust of CS No.2166/77 proves that it is also entitled future mesne profit from the date of suit till possession is recovered from the defendant ? If yes, at what rate? (answered in affirmative).
5. What order and decree ?"Page 27 of 31 C/FA/537/1999 CAV JUDGMENT
16.3 The above issues are answered by the Trial Court by holding that, the present respondent was entitled to ask for the sale deed of the suit land being executed in his favour and further that, the present respondent could not be dispossessed from the suit land. This Court finds that, on the independent evaluation of the evidence on record, this Court has also arrived at the same conclusion that, the appellant was not entitled to recover the possession of the suit land from the present respondent. The Trial Court has also arrived at the same conclusion, may be with less elaborated reasons. But the net effect thereof is that the point for determination No.(iv) needs to be answered by holding that, the Trial Court has not committed any error by not granting the relief to the present appellant in Civil Suit No.2166 of 1977, qua the recovery of the possession of the suit land from the present respondent.
17.1 It is noted that, learned senior advocate for the appellant has pressed into service the following two Authorities, as noted above, to support his contention that, the time was essence of the contract and that factor should weigh against the present respondent.
(i) AIR 1993 SC 1742 - Chand Rani Vs. Kamal Rani.
(ii) AIR 2010 SC 577 - A.K. Lakshmipathy (D) Vs. Rai Saheb Pannalal H. Lahoti Charitable Trust.
17.2 With regard to the above contention about the time being essence of the contract, it needs to be noted that, from the various pronouncements of the Supreme Court of India, including in the case of Chand Rani (supra), which was a Page 28 of 31 C/FA/537/1999 CAV JUDGMENT decision by the Constitution Bench of the Supreme Court, (and the decisions which were referred to and followed in the said judgment, and the subsequent decisions, in which the said decision is followed) the ratio which can be deduced is to the effect that in case of sale of immovable property, it would be normally presumed that time was not the essence of the contract. Further, even if there is any stipulation in the agreement to that effect, the same has to be read not only in letters but in substance. Further, such a stipulation has to be read along with other provisions of the agreement and it has also to be ascertained whether the parties intended the said provision to be adhered to, or had given a go by to the said stipulation, by their own conduct.
17.3 If the evidence on record, as discussed above is weighed vis-a-vis the above proposition of law, the decisions as relied by learned senior advocate for the appellant would not help the appellant, in any manner. Not only that, the same would apply with full force against the present appellant.
17.4 So far the decision in the case of A.K.Lakshmipathi (supra) is concerned, in substance it follows the Chand Rani (supra) which was a decision by the Constitution Bench. Even in A.K.Lakshmipathi (supra), on facts, the Supreme Court found that, the appellant before it was not ready and willing to make payment. The present one however, on facts, is not such case. For these reasons, none of the said Authorities would take the case of the appellant any further.
18. On overall consideration of the material on record and the reasons recorded above, this Court finds that the first two Page 29 of 31 C/FA/537/1999 CAV JUDGMENT points for determination as noted above, are answered by holding that, the action of the State as contained in its communication dated 27.11.1975 (Exh.87) informing the respondent that, 'the agreement to sell stands terminated and the amount paid by the respondent is forfeited', was illegal and improper. Further, it is also held that, the Trial Court has not committed any error while interfering in the said decision of the State and by allowing the suit filed by the present respondent being Civil Suit No.2397 of 1978. The third and the fourth points for determination as noted above, need to be answered by holding that, the appellant was not entitled to recover the possession of the suit land from the present respondent, and further that the Trial Court has not committed any error by not granting the relief to the present appellant in Civil Suit No.2166 of 1977, qua the recovery of the possession of the suit land from the present respondent. Both these appeals, therefore need to be dismissed.
19. For the reasons recorded above, the following order is passed.
19.1 Both these appeals are dismissed.
19.2 The impugned common judgment and decree dated 10.11.1998 passed by the Trial Court (City Civil Court, Ahmedabad) in Civil Suit No.2166 of 1977 and Civil Suit No.2397 of 1978 is confirmed, to the extent it is under challenge before this Court, in these two appeals.
19.3 The direction to the parties to maintain status quo qua the suit property, as ordered by this Court vide order dated Page 30 of 31 C/FA/537/1999 CAV JUDGMENT 17.12.1999, is vacated.
19.4 Record and proceedings be sent beck to the Trial Court.
(PARESH UPADHYAY, J)
20. After the pronouncement of this judgment, learned advocate for the appellant has made a request that the status quo order be continued for some time. Considering the totality, it transpires that the present respondent is successful litigant before two Courts. He has been litigating for about four decades. The original respondent could not enjoy the fruits of this litigation. His legal heirs have now come on record. Considering all these aspects, the request made on behalf of the appellant is rejected.
(PARESH UPADHYAY, J) MOBHATI/PS/01 Page 31 of 31