Mahabir Tiwary vs State Of Jharkhand Through The Deputy ... on 13 February, 2026

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Jharkhand High Court

Mahabir Tiwary vs State Of Jharkhand Through The Deputy ... on 13 February, 2026

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

                                                               2026:JHHC:4034




           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               F.A. No. 138 of 2023
    Mahabir Tiwary, aged about 62 years, son of Late Shivdut Tiwary,
    resident of Opposite Jharkhand Police Academy, Ranchi Patna
    Highway, Village- Sarley, P.O.- Sarley, P.S.- Sadar, District-Hazaribag
                                          ...      ...     Plaintiff/Appellant
                                   -Versus-
    1. State of Jharkhand through the Deputy Commissioner, Collectorate,
       P. O.- Hazaribag, P.S.- Sadar, District- Hazaribag
    2. Khasmahal Officer, Collectorate, P.O.- Hazaribag, P.S.- Sadar,
       District- Hazaribag
    3. Lekha Lahiri wife of Late Ranjit Lahiri
    4. Arjit Lahiri son of Late Ranjit Lahiri
       Both residents of 28, Lake Land Country Club, District- Howrah,
       P.O. & P. S.- Howrah, West Bengal
                                  ...      ...       Defendants/Respondents
                                    --

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

    For the Appellant               : Mr. Sandeep Verma, Advocate
    For the Resp. Nos.1 & 2         : Mr. Kanishka Deo, AC to GP-IV
    For the Resp.Nos.3 & 4          : None
                                    --
  Reserved on 14.11.2025                      Pronounced on 13.02.2026

1. This first appeal has been filed against the Judgment and Decree dated 29.04.2023 (Decree sealed and signed on 09.05.2023) passed by the learned Civil Judge (Senior Division)-VI, Hazaribag in Original (Title) Suit No.154 of 2016 whereby and whereunder the suit of the plaintiff was dismissed on contest.

2. Inspite of substituted service of notice the respondent no. 3 and 4 have not appeared.

3. The records of the case reveal that in the original suit, there were only three defendants. Defendant Nos. 1 and 2 were Deputy Commissioner and Khas Mahal Officer respectively and Defendant No.3 was Ranjit Lahiri who was substituted before the trial Court on account of his death vide order dated 18.12.2021 and the proceeding was set ex-parte vide order dated 27.09.2022. The records further reveal that the original Defendant No.3 (Ranjit Lahiri) had appeared before the learned trial court and had filed a petition under Order VII Rule 11 of Code of Civil Procedure on 29.04.2019 making a prayer for rejection 1 2026:JHHC:4034 of the plaint, but the said petition was rejected by the learned court vide order dated 03.12.2019. Subsequently, the original Defendant No.3 was substituted and then the proceeding was set ex-parte against the substituted legal heirs and successors of original Defendant No.3.

4. The title suit was instituted on 11.09.2016 as per the records of the trial court. The suit was filed seeking specific performance of contract of sale dated 17.12.2014 said to have been executed between the plaintiff and the original Defendant No.3. The plaintiff had prayed for the following reliefs:

"a) That the plaintiff accordingly prays to pass a decree in favour of the plaintiff and against the defendant for specific performance of contract to sale dated 17.12.2014 and for execution of Sale-deed and delivery of peaceful physical actual possession of the land in question to the extent of half share of the Defendant No.- 3 which is mentioned in schedule 'A' and 'B' of the plaint to the plaintiff against payment of balance Sale consideration.

b) By pronouncement of judgment and decree to effect that any impugned sale by Defendant No.- 3 in favour of Baleshwar Prasad Mehta or any prospective purchaser as void and not binding upon the plaintiff and calling the original Sale-deed adjudging the same as void against the plaintiff and otherwise cancelling the same.

c) That a permanent injunction in favour of plaintiff and against Defendant No.3 restraining him and his brother Dr. Avijit Lahiri and also the Defendant No.2 from transferring conveying, alienating or assigning any part of the land of the schedule 'B' land or from entering into any agreement or any of the aforesaid purposes and from changing the status quo of the schedule 'B' land or parting with possession thereof either directly or indirectly on any other manner whatsoever.

d) That the cost of suit be awarded in favour of the plaintiff.

e) Any other relief or reliefs that the plaintiff is entitled be awarded in favour of the plaintiff."

5. The property consisted in two parts; one was Schedule-A and the other was schedule- B, which are also quoted as under:

2026:JHHC:4034 Schedule-'A' Mouza Holding Plot P.S. Area Boundary No. No. No. Korrah 242(BL) 59/1564 156 1.00 North-Orchard lease Holding acre No.243, South-Canary Hill Road, East-Survey Road, and West-House of Mr. Bose Schedule-'B' Mouza Holding Plot No. P.S. Area Boundary No. No. Korrah 243 58/1565 156 2.04 North-Portion of land of acre Plot No. 56 & 57 South-Building lease Holding No.242 of the lessee, East- D.A.V. School, and West- House of Mr. Bose.

6. As per the case of the plaintiff, Ranjit Lahiri and his brother Avijit Lahiri were the lessee of the Khas Mahal Building Lease Holding No.242 and also lessee of 2.04 acres of land bearing Holding No.243 which were fully described in Schedule- A and B of the plaint. The specific case of the plaintiff before the learned trial court was as under:

(i) The building lease was in relation to Schedule-A property and the orchard lease was in connection with Schedule-B property. It was asserted that the building lease was in the process of renewal from 01.04.2008 to 31.03.2038, whereas the orchard lease stood renewed till 31.03.2038.

(ii) On the basis of offer of original Defendant No.3, the plaintiff entered into an agreement for a consideration amount of Rs.76 lakhs and they agreed to prepare an instrument to this effect. On

07.03.2013, they executed an instrument putting in writing the consideration amount of the land at Rs.76 lakhs and out of the consideration amount of Rs.76 lakhs, the plaintiff paid Rs.9 lakhs in favour of Ranjit Lahiri, Rs.8 lakhs in favour of his wife Lekha Lahiri through cheques and further, Rs.8 lakhs in favour of Arijit Lahiri, son of Ranjit Lahiri and these cheques were cleared and it was agreed that the agreement of sale will be executed.

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(iii) Upon demand made by the original Defendant No.3, the plaintiff paid further Rs.25 lakhs through cheques whose details have been mentioned in Paragraph-6 of the plaint. Further, the plaintiff claimed to have paid Rs.2 lakhs in cash to the original Defendant No.3 on 15.12.2014 at his residence at Kolkata.

(iv) After encashment of the various cheques and upon payment as stated above, the plaintiff and the original Defendant No.3 entered into a fresh agreement dated 17.12.2014 wherein the consideration amount of the land was fixed at Rs.75 lakhs, out of which the plaintiff had already paid Rs.48 lakhs by cheques and two lakhs in cash on 15.12.2014. It was further asserted that just before execution of the agreement to sale, the plaintiff further paid Rs.8 lakhs in cash to the original Defendant No.3 and handed over three cheques totaling Rs.15 lakhs as security which was to be honoured at the time of execution of registration of power of attorney in favour of the plaintiff after the renewal of lease in connection with Schedule-B property as the lease was already renewed in connection with Schedule-A property.

(v) It was asserted that the orchard land lease stood renewed from 01.04.2008 to 31.03.2038 in the name of Ranjit Lahiri and his brother Avijit Lahiri and the renewal of building lease was under

process.

(vi) It was the case of the plaintiff that since renewal of building lease was under process, original Defendant No.3 had asked the plaintiff that transfer application will not be sent to Khas Mahal office and original Defendant No.3 assured the plaintiff that he would execute the Power of Attorney soon after being informed about renewal of the lease in his name and he would realize the balance consideration amount of Rs.25 lakhs from the plaintiff.

The Defendant No.3 had requested the plaintiff in terms of the agreement to pursue the renewal process of Schedule-A (building lease) before the Khas Mahal Authority.

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(vii) It was asserted that it was only by virtue of the hard endeavour of the plaintiff that the orchard lease was renewed for the period from 01.04.2008 to 31.03.2038. The renewal applications were numbered as Case No.46 of 2007-08 and 47 of 2007-08 and it was sent to the Revenue Secretary, Ranchi after getting all the formalities completed at Hazaribag from Khas Mahal Officer to Commissioner, North Chotanagpur Division, Hazaribag. The plaintiff followed up the matter for renewal and the plaintiff was kept under an impression that when the building lease gets renewed, he would get the land and premises transferred in the name of the plaintiff.

(viii) The plaintiff started putting his effort in gathering Rs.25 lakhs to be given to the original Defendant No.3 in future and on this basis, it was asserted that the plaintiff was very much willing and ever ready to purchase the half share of the Defendant No.3 in Schedule-A and Schedule-B land.

(ix) The plaintiff also stated that there was sharp rise in the land prices and the price of Schedule-A and Schedule-B properties increased manifolds which made the original Defendant No.3 dishonest on account of escalation of price of the scheduled properties.

(x) The cause of action arose when the plaintiff, on 25.06.2016, saw that some unknown persons inside the premises of Schedule-A and Schedule-B property had entered and were making certain construction on the part of original Defendant No.3 and the original Defendant No.3 failed to give any satisfactory explanation to the plaintiff.

(xi) The plaintiff asserted that it was necessary to restrain the original Defendant No.3 from transferring, selling, assigning or alienating any part of the suit land or entering into any agreement or make any changes with respect to the suit land. It was also asserted that any subsequent agreement of sale or power of attorney with respect to the suit land be treated as void. It was further asserted that the original Defendant No.3 was deliberately avoiding to 5 2026:JHHC:4034 perform his part of the contract dated 17.12.2014 out of greed and extra ordinary escalation in the price of the land.

(xii) It was asserted that the plaintiff had performed his part of the contract by paying Rs.58 lakhs to the original Defendant No.3 and the agreement of sale dated 17.12.2014 did not envisage any other steps to be taken by the plaintiff till the receipt of intimation from Defendant No.3 about having obtained all the requisite permissions and that the plaintiff, till the date of filing of the suit, had not received any intimation despite repeated request and reminder to the original Defendant No.3.

(xiii) It was asserted that the plaintiff was throughout ready and willing to perform his part of the contract from the date of execution of the instrument on 07.03.2013 and also the agreement dated 17.12.2014 and was having the means and resources to pay the balance consideration amount at the time of registration of the sale-deed.

(xiv) Ultimately, the plaintiff sent legal notice to the original Defendant No.3 on 29.07.2016 through speed post which was duly received by the original Defendant No.3, but no response was given to the plaintiff. The matter was also brought to the knowledge of the Deputy Commissioner, Hazaribag and Khas Mahal Officer, but nothing happened.

(xv) As per the plaintiff, the cause of action arose on 07.03.2013 when the instrument was duly executed between the plaintiff and the original Defendant No.3 and on 17.12.2014 when the agreement for sale was entered into between the parties and day-to-day thereafter and lastly, on 29.07.2016 when the legal notice was issued and continuously thereafter.

(xvi) The plaintiff asserted that the plaintiff was still willing and ever ready to purchase the Schedule-A & B property and ready to give the balance consideration amount of Rs.17 lakhs to the original Defendant No.3.

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7. The Defendant Nos.1 and 2 filed their written statement stating that the suit was not maintainable and there was no cause of action and the suit was bad for non-joinder and mis-joinder of necessary parties. The case of the Defendant Nos.1 and 2 was as under:

A. The suit is barred by limitation. It was asserted that the plaintiff had not properly valued the suit property and the real market value of the property was more than Rs.1 crore. They further asserted that the Defendant No.3 Ranjit Lahiri and his brother Avijit Lahiri were not lessees in respect of the Khas Mahal Plot No.59/1564 under the building lease Holding No. 242 and orchard lease Plot No. 59/1564 under Holding No. 243 and the plaintiff had no knowledge about the correct plot numbers of the lease holding in the name of Defendant No.3 and his brother. B. It was further asserted that as per the records of the Khas Mahal Office, Ranjit Lahiri and his brother Avijit Lahiri are lessees in respect of the building Holding No.242 Plot No.58/1564 area 1 acre and orchard lease Holding No. 243 Plot No. 58/1566 area 2.04 acre. The defendants asserted that the description of the property given in the plaint is incorrect.

C. The building lease Holding No. 242 Plot No. 58/1564 area 1 acre and orchard lease holding no. 243 Plot No. 58/1566 area 2.04 acres was renewed in the name of lessees Ranjit Lahiri and Dr. Avijit Lahiri for the period from 01.04.1978 to 31.03.2008 and the renewal of building lease for the period from 01.04.2008 to 31.03.2038 was under process.

D. The order of the Deputy Secretary, Department of Revenue and Land Reforms, Jharkhand, Ranchi for renewal of the orchard lease Holding No. 243 Plot No. 58/1566 area 2.04 acres for the period from 01.04.2008 to 31.03.2038 was received, but deed of lease was not yet registered till that date.

E. Further, original Defendant No.3 had no right to transfer the land without permission of the competent authority of the Government of Jharkhand and that the office of Khas Mahal 7 2026:JHHC:4034 Officer, Hazaribagh had not received any application for permission to transfer the land of the B.L. holding lease or orchard holding lease. They further stated that they had no information about the agreement to sale dated 17.12.2014 between the plaintiff and the original Defendant No.3 or with regard to payment of any consideration amount with respect to Schedule-A or Schedule-B property. It was their stand that the original Defendant No.3 had no right to execute any agreement with respect to the Khas Mahal lease Holding No. 242 and 243 of Mouza Korrah in favour of the plaintiff without permission of the Deputy Commissioner, Hazaribag.

F. It was also asserted that on enquiry of the lands under Holding No. 242(BL) and Holding No. 243(orchard) by the officials of Khas Mahal, it was found that lessees do not reside in the residential house constructed over the B.L. holding lease land, rather two persons namely, Deonandan Lakra and Ashok Mehta live therein as caretaker of the premises.

8. On the basis of the pleadings of the parties, the learned trial court framed the following issues for consideration:

(i) Whether the present suit is maintainable in its present form in law and in fact?

(ii) Whether the suit is bad for mis-joinder and non-joinder of present parties?

(iii) Whether there is any cause of action for the present suit?

(iv) Whether the suit is bad for as per the provision of Specific Relief Act 1963?

(v) Whether there is any cause of action in present suit?

(vi) Whether the suit is properly valued?

(vii) Whether the defendant no.3 had any right to execute any agreement in respect of schedule 'A' and schedule 'B' land with the plaintiff?

(viii) Whether the plaintiff is entitled for the relief as prayed by him?

9. The learned trial court first decided the Issue No. (vii) and

(viii) and held that the plaintiff was neither willing, nor ready to perform his part of the contract and also held that the original Defendant No.3 8 2026:JHHC:4034 had no right to execute the agreement of sale in favour of the plaintiff for the Khas Mahal land and the agreement itself was not capable of being implemented as it was neither certain, nor capable of being made certain. The learned court accordingly held that the agreement was a void document which could not be enforced by law. Accordingly, issue nos. (vii) and (viii) were decided against the plaintiff. The findings of the learned trial court with regard to issue nos. (vii) and (viii) are as under:

"The plaintiff has instituted the suit for seeking a preliminary decree in favour of the plaintiff regarding specific performance of the Agreement to sell Dated 17.12.2014 by directing the defendant to execute the sale deed and delivery of actual possession of the suit land in favour of the plaintiff against the payment of balance sale consideration for by which the registration of sale be executed through the process of the court and Defendant also admitted the fact about the agreement in this regard the suit is hit by provision of specific performance act.

Further, we should go and observe the most essential and important ingredients of the Agreement that "the plaintiff was and is ready and willing to perform the part of the agreement"

In the latest judgment U.N. Krishnamurthy vs. A. M. Krishnamurthy, 2022 (3) JBCJ 179 August the hon'ble court held that it is well settled that, in a suit for Specific Performance of an agreement, it is for the Plaintiff to prove his readiness and willingness to perform his obligations under the agreement. Where a certain amount has been paid in advance and the balance is required to be paid within a stipulated time, it is for the Plaintiff to show that he was in a position to pay the balance money. The Plaintiff has to prove that he has the money or has alternatively made necessary arrangements to get the money. In this case, the Original Defendant/Appellants have all along contended that the Plaintiff Respondent neither offered to pay nor was in a position to pay the balance consideration ...

The primary question for determination is whether the Respondent Plaintiff has proved his readiness and willingness to perform his part of the contract or not?

Section 16 of the Specific Relief Act, 1963, as it stood at the material time (prior to amendment with effect from 1.10.2018), inter alia, provides:-........................................

Section 16 (c) of the Specific Relief Act, 1963 bars the relief ....................................................................

2026:JHHC:4034 To aver and prove readiness and willingness to perform an obligation to pay money, in terms of a contract, the plaintiff would have to make specific statements in the plaint and adduce evidence to show availability of funds to make payment in terms of the contract in time. In other words, the plaintiff would have to plead that the plaintiff had sufficient funds or was in a position to raise funds in time to discharge his obligation under the contract. If the plaintiff does not have sufficient funds with him to discharge his obligations in terms of a contract, which requires payment of money, the plaintiff would have to specifically plead how the funds would be available to him. To cite an example, the plaintiff may aver and prove, by adducing evidence, an arrangement with a financial for disbursement of adequate funds for timely compliance with the terms and conditions of a contract involving payment of money.

In this case plaintiff served a legal notice dated 29.07.2016 (Mark X) upon the Deceased defendant No 3 Ranjit Lahiri & Substituted Defendant no 3(a),3(b) Lekha Lahiri & Arijit Lahiri showing his willingness to pay the balance consideration amount in the respect of Agreement Dated 17.12.2014 and asking the defendant to execute the Registration of sale of the 'suit land'. That the plaintiff has now come to know that the defendant is negotiating with different persons to sell the land at is flated and higher price than that with which the defendant had agreed with the plaintiff with a view to dependent the claim of That the defendant had deliberately 1 e performed his part of the contract with the plaintiff out of greed an account of extra ordinary escalation in the price of the 'suit land'. That the plaintiff had performed his part of contract by paying the advance money of Rs. 50 lacs paid by cheque and Rs. 08 lakhs paid by cash, to the defendant. The Agreement to sell dated 17.12.14 does not envisages any other step to the taken by the plaintiff.

There is a distinction between readiness and willingness to perform the contract and both ingredients are necessary for the relief of Specific Performance. In His Holiness Acharya Swami Ganesh Dassji vs. Sita Ram Thapar, (1996) 4 SCC 526 cited by Mr. Venugopal, this Court said that there was a difference between readiness and willingness to perform a contract. While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff. The same view was taken by this Court in Kalawati vs. Rakesh Kumar, (2018) 3 SCC 658.

...................................................

2026:JHHC:4034 In this suit, Plaintiff has contended that he was ready and willing to perform his part of contract.in this regard firstly I would go through the willingness or conduct of the plaintiff that the Agreement of sale was executed between both the parties on 17.12.2014 and for non-execution of the said Agreement .plaintiff sent the legal notice to Defendants no 3 to 3(C) on 29.07.2016 and Defendant no 1 on 17.01.17(ext. No 2) u/s 80 C.P.C. After perusal of both legal notices its appears that both notices are sent to the defendants after lapse of approx 02 years from the date of Agreement of sell and I think that this conduct is not shows the willingness of the plaintiff to purchase the said suit land.

However, in order to subsequently his claim for readiness, Plaintiff has produced the bank statements, which are mark as Exhibits no 3 to ¾ and stated by the plaintiff that he was ready to perform his duty and consideration amount was in his account. After perusal of the said Bank Statements Exhibits No 3, dated- 03.04.2013, Ext. No 3/1 dated 04.05.2013, Ext. No 3/2 dated 10.06.2013 and Ext. No 3/3 dated 17.12.2014, its appears that all the said statement of the bank Account is in the name of Plaintiff Mahabir Tiwary and all the statements are on/before the Date of Agreement of Sale Dated 17.12.2014. further After perusal of Ext. No 3/4 bank statement Dated 30.10.2015 to 16.05.2017,its found that this statement is in the name of"MAA LAXMI BUILDCON PRIVATE LIMITED" and not in the name of the plaintiff.in this regard there are two issue to evident that (1) is,the plaintiff is propriter of the said Firm,and (2) Is,the said firm is enter into Agreement for sale dated 17.12.2014. for the first issue there is no any Documentary evidence came on the record that the plaintiff is the proprietor of the said firm and secondly if presumption that the plaintiff is proprietor of the said and firm ,the Agreement dated 17.12.14 was execute in persona between the plaintiff namely Mahibir Tiwary, not on the behalf of firm namely "MAA LAXMI Buildcon Pvt Ltd" and the Amount of the said firm cannot be consider as plaintiff fund. further plaintiff could not satisfy the court that why plaintiff has produce the bank statement(Ext. No 3 to 3/3)which is in his name, before the Agreement of sale dated 17.12.2014 and why After the date of the Agreement Dated 17.12.14 he produced the bank Satement (Ext. No 3/4) of"MAA LAXMI Buildcon Pvt. LTD." therefore it was the duty of the plaintiff to approach the defendant having prepared for the execution of the sale deed in the respect of the suit property. there has been no evidence available on the record which may go on to suggest that the plaintiff took any step in furtherance of execution and registration of the suit property as a matter of fact that the 11 2026:JHHC:4034 plaintiff himself have been found to be not performing his part of contract for which defendant cannot be blamed. Even though the plaintiff has not taken any step to do the same, plaintiff was waiting for the renewal of the lease and sent the legal notice after approx. 02 years as formal. The conduct of the plaintiff shows that he was just perform his duty as formal and he could not prove his readiness and his willingness.

It is settled law that for relief of specific performance, the Plaintiff has to prove that all along and till the final decision of the suit, he was ready and willing to perform his part of the contract. It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice.

Plaintiff has brought this suit on the basis of an agreement Dated 17.12.2014 that the consideration amount of the aforesaid land was fixed at on rupees 75 lakhs out of which the plaintiff paid to the defendant no. - 3, of Rs. 48 (forty-eight) lakhs rupees by cheques. Meanwhile before execution of the Agreement to Sale on 17.12.2014 as requested by the Def. no. 3 the plaintiff paid rupees 8 (eight) lakhs in cash to defendant no. - 3 at Canary Inn, Hazaribag on 15.12.2014. Moreover, the plaintiff had handed over cheques bearing nos.- 691882, 691881 and 691883 of rupees 15 lakhs as a security to be honoured at the time of execution of Registration of Power of Attorney in favour of the plaintiff after the renewal of the schedule B land. that it would not be out of place to mention that the aforesaid land and premises stand renewed from 01.04.2008 to 31.03.2038 in the name of Ranjit Lahiri - defendant no.3 and Avijit Lahiri who is the own brother of Defendant no.3. However, the building lease renewal is under process of renewal.

In order to decide Issue No. vii & viii, firstly, I would like to go through the agreement dt. 17.12.2014 (Exhibit no 1/1) alleged to be entered on behalf of both the parties. In said agreement both the parties are agreed for transfer half share of khas mahal land of Scheduled "A" and Schedule "B" property maintained as plaint. The said property was got by plaintiff through a building lease by Government/state which was under process of renewal from 01.04.2008 to 31.03.2038 and plaintiff entered into Agreement for sell with plaintiff on 17.12.2014 without renewal of the said lease. further it also appears that as per Rules 9 and 21 of Bihar government estates Manual 1953 provides that settlement/transfer is permissible only with the prior approval of state government. Plaintiff had not produced any chit of paper who shows that 12 2026:JHHC:4034 defendant no 3 was got prior permission from the state for transferring the said khas mahal land or not produced any documents also who shows that he was apply for said permission. Pw.1 plaintiff himself admitted the facts in his Statement and also supported by the P. W 2. Witnesses have admitted that before the lease transfer prior permission of the state is necessary. Further Plaintiff has also brought a document letter No 167/khas mahal dt. 15.04.23 (Ext. No. 4) in which it shows that that ............ in the letter it is clearly direction by the state/renewal Authority in Clause (c) that the said land was used only for the purpose of Bagwani. it means the lessess can not the said property for other purpose like that sell or Transfer or construct building. In this letter, it also appears that there is no any permission for transfer of khas mahal land to third party.

In respect of the above-mentioned land the renewal was under process at the time of taken advance money by the plaintiff i.e. 2013 and the Agreement dt 07.03.2013 was executed for future conduct. Further on dt 17.12.2014 the renewal letter was also not in hand of parties and no prior permission was got to transfer the khas mahal land from the state /Authorities. In this circumstances defendant was no legal right to execute the Agreement of sell for said khas mahal land and as per section and the said Agreement is against the law of Bihar Estate Manual 1953.

In W.P.(C) No. 5409 of 2016 Hon'ble high court of Jharkhand, find that-"........ Khas Mahal lease cannot be transferred to anyone. Pendency of an application for lease will not give any right to the petitioner or his predecessor in interest to take possession over the land in question."

However, the plaintiff and defendant executed the Agreement dated 17.12.2014 before any renewal and prior permission from the State and as per Agreement, the parties were agree on condition that, "after the renewal of lease by the Government...", means that on agreement the contract is for future transaction and uncertain conduct which is unlawful and illegal in the eye of law. Agreement that does not currently exist, but are agreed to potentially exist in the future are also legally void, unless all items in the agreement are actually agreed.

Section 29 of Indian Contract Act says that Agreements, the meaning of which is not certain, or capable of being made certain, are void A void agreement is one which cannot be enforced by law.

Hence in this circumstance this issue is decided against the plaintiff."

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10. While deciding Issue Nos. (i) to (vi), the learned trial court held that the suit is not maintainable in the present form as plaintiff has failed to produce cogent evidence as regards his right, title, interest and possession over the suit land; there was no cause of action to file the suit; and so far as point regarding non-joinder of necessary parties and the valuation of the suit are concerned, the defendants failed to plead and adduce relevant evidence on these points. Ultimately, the suit was dismissed by the impugned judgment.

Arguments on behalf of the appellant

11. Learned counsel for the appellant has submitted that the readiness and willingness to perform on the part of the plaintiff was duly proved. He has submitted that the statements of the bank accounts were produced to show payment made earlier and also to show the readiness and willingness to perform the remaining part of the contract. He has further submitted that the availability of the fund with the plaintiff was also proved which was the bank account transaction details of M/s Maa Lakshmi Buildcon Pvt. Ltd. in which the plaintiff was a director and was also the authorized signatory.

12. The learned counsel further submits that so far as renewal of orchard lease is concerned, order for renewal of the same was passed way back on 20.05.2013 and the requisite amount of Rs.5,78,381/- was also deposited by Avijit Lahiri and the application for renewal of lease was pending consideration which is apparent from the letter dated 16.02.2015 issued by the Deputy Secretary of the Government of Jharkhand to the Deputy Commissioner, Hazaribag in which the case number being 46 of 2007-08 along with other case numbers has also been mentioned.

13. However, during the course of arguments, it transpired that there is nothing on record that application for grant of lease to the plaintiff was ever filed by the original Defendant No.3 and admittedly, the renewal of lease with respect to the orchard was yet to be registered. Further, it is not in dispute that Ranjit Lahiri was original Defendant No.3, but as per the case of the plaintiff himself, the Khas 14 2026:JHHC:4034 Mahal lease was in favour of Ranjit Lahiri and Avijit Lahiri and the aforesaid amount of Rs.5,78,381/- was also deposited by Avijit Lahiri who was neither party to the agreement of sale nor party in the suit.

14. At this, the learned counsel for the appellant clarified the position by submitting that the agreement of sale was in relation to only half share of the original Defendant No.3. The learned counsel has further submitted that non-renewal of lease by itself is not an impediment in grant of relief seeking specific performance of contract. For this purpose, the learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2007) 10 SCC 595 (Vishwa Nath Sharma v. Shyam Shanker Goela and Another) and has submitted that where the vendor has agreed to sell the property which can be transferred only with the sanction of some government authority, the court has the jurisdiction to order the vendor to apply to the authority within a specified period, and if the sanction is forthcoming, to convey to the purchaser within a certain time. He submits that it has been held that there is always an implied covenant on the part of the vendor to do all things necessary to effect transfer of property regarding which he had agreed to sell the same to the vendee and permission is not a condition precedent to grant a decree for specific performance.

15. Learned counsel for the appellant has also relied upon the judgment reported in 2010 SAR (Civil) 645 (Laxman Tatyaba Kankate and Another Vs. Taramati Harishchandra Dhatrak). He has referred to Paragraph-2 of the said judgment to submit that the 1st appellate court in the said case had granted the decree for specific performance of contract upon grant of permission of the competent authority as contemplated under Section 12(c) of the Maharashtra Re-settlement of Project Displaced Persons Act, 1976. The learned counsel has referred to Paragraph-13 of the said judgment to submit that in the said case Section 13(1)(c) of the Specific Relief Act, 1963 (hereinafter referred to as the "Act of 1963") has been taken into consideration which clearly postulates that where a person contracts to sell immovable property with an imperfect title and the property is encumbered for an amount 15 2026:JHHC:4034 not exceeding the purchase money, the purchaser has the right to compel the seller to redeem the encumbrance and obtain a valid discharge and then specifically perform the contract in its favour. The learned counsel has then drawn the attention of this Court to the provision of Section 13(1)(b) of the Act of 1963 to submit that in a case where concurrence of other person is necessary for validating the title and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel such vendor to procure such concurrence.

16. By referring to aforesaid two judgments, the learned counsel for the appellant has submitted that even if the process of renewal of lease was not complete, the trial court was required to take into consideration Section 13(1)(b) of the Act of 1963 to direct the Defendant No.3 to take all steps for the purposes of renewal of lease and also for grant of permission for transfer. He submits that finding of the learned trial court that the agreement was void in view of section 29 of the Indian Contract Act is not in accordance with law.

17. Learned counsel for the appellant has also relied upon the judgment passed by the Hon'ble Supreme Court reported in (2019) 6 SCC 233 (Beemaneni Mahalaxmi Vs. Gangumalla Appa Rao) (paragraph 14) to submit that if the vendor does not perform his part of the contract, then availability of balance consideration amount is inconsequential. Learned counsel for the appellant has submitted that the finding of the learned trial court on the point of readiness and willingness on the part of the plaintiff to perform his part of the contract is not in accordance with law when seen in the light of Paragraph-14 of the aforesaid judgment.

18. Learned counsel for the appellant has then referred to another judgment on the same point which is reported in AIR 1970 SC 546 (Nathulal Vs. Phoolchand). He has referred to Paragraph-6 of the aforesaid judgment to submit that it has been held that in order to prove that the purchaser was ready and willing, the purchaser need not necessarily produce the money or to vouch a concluded scheme for 16 2026:JHHC:4034 financing the transaction. The learned counsel for the appellant has submitted that the plaintiff had produced enough material on record to show the availability of fund which was enough to show readiness and willingness on the part of the plaintiff, but this aspect of the matter has not been properly considered by the learned court.

19. Learned counsel for the appellant has further submitted that the suit was not bad on account of non-joinder of necessary party, inasmuch as, the co-owner of the property namely, Avijit Lahiri was not party to the proceedings. He has submitted under Section 44 of the Transfer of Property Act, it has been provided that where one of two or more co- owners of immoveable property legally competent to transfer his/their share of such property transfers his/their share or any interest therein, the transferee acquires such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but the same is subject to the conditions and liabilities affecting on the date of the transfer with respect to the share or interest so transferred.

20. The learned counsel submits that it was only on account of legal necessity i.e. for his treatment that one of the two co-owners i.e. original Defendant No.3 entered into an agreement with the plaintiff. He submits that taking into consideration Section 44 of the Transfer of Property Act, the suit was not bad for non-joinder of necessary parties. He has submitted that the plea of non-joinder of necessary parties has been rejected by the learned trial court also.

Arguments of the Respondent Nos. 1 and 2

21. Learned counsel for the Respondent Nos. 1 and 2, on the other hand, has opposed the prayer and has relied upon the written statement filed by Defendant Nos. 1 and 2 before the learned trial court. He has further submitted that the leases of both the portions were not renewed, inasmuch as, in connection with orchard, only permission was granted and the lease deed was yet to be executed by registration and so far as building lease is concerned, the application for renewal was still 17 2026:JHHC:4034 pending. The learned counsel has also submitted that no application for permission to transfer was filed by the original Defendant No.3 or his co-owner with respect to the suit property and accordingly, the arrangement made between the plaintiff and the original Defendant No.3 is not binding on the Defendant Nos. 1 and 2.

22. The learned counsel has also referred to Section 13(1)(b) of the Act of 1963 and submits that twin conditions are required to be satisfied to attract first part of the aforesaid section which has been relied upon by the learned counsel for the appellant. He has submitted that there is no dispute that concurrence is necessary, but at the same time, the Defendant Nos. 1 and 2 are not bound to concur at the request of the vendor. He has also submitted that they also have right to put certain terms and conditions as has been put in connection with renewal of the lease relating to orchard. The learned counsel submits that there is no concept of automatic renewal of lease upon filing of application and therefore, the terms and conditions of the agreement was itself uncertain and such uncertain agreement cannot be enforced through specific performance of contract. He submits that the learned court has rightly held that the agreement itself was void, inasmuch as, no prior permission was taken from the defendant nos. 1 and 2 to deal with the property and the conduct of original Defendant No.3 and the plaintiff is not binding on the Defendant Nos. 1 and 2. He submits that ultimately the title vests with Defendant Nos. 1 and 2 and by praying for specific performance of contract, it is the property of the Defendant Nos. 1 and 2 which is the subject matter of consideration.

Rejoinder argument of the Appellant

23. In response, the learned counsel for the appellant has referred to the judgment passed by this Court reported in 2003 (2) JLJR 293 (Jagat Nath Mukherjee and Others Vs. The State of Bihar and others) and submits that it has been held that renewal of Khas Mahal lease is a mere formality and the condition is that the application for renewal has to be submitted within time.

2026:JHHC:4034 Points for determination

24. The following points of determination emerge in the present case:

(i) Whether the suit of the plaintiff was bad for non-joinder of the co-lessee of the suit lands as a co-defendant?

(ii) Whether agreement dated 17.12.2014 entered between the plaintiff and the original Defendant No.3 was void in view of Section 29 of the Indian Contract Act, 1872?

(iii) Whether the plaintiff was ready and willing to perform his part of the contract?

(iv) Whether the plaintiff was entitled to any relief in the facts and circumstances of this case?

Findings of this Court

25. The plaintiff led both oral and documentary evidences which are as follows:

Oral Evidences:

          Sl. No.                Name                 Plaintiff Witness
              1      Mahabir Tiwary                       P.W. 01
              2      Ranjan Kumar Singh                   P.W. 02
        Documentary evidences:
        Sl. No.         Description of the         Date of      Exhibit
                           Documents              Admission    Number
        01          Agreement dt. 07.03.2013      23.01.2023 Ext. No.01
        02          Agreement dated 17.12.14      23.01.2023 Ext. No.01/01
        03          Legal notice U/s 80 CPC dt. 23.01.2023 Ext. No.02
                    17.01.2017
        04          Legal notice dt. 29.04.2016   23.01.2023 Mark-X
        05          Bank statement of Rs.         27.01.2023 Ext. No.03
                    8,00,000/- & Rs. 9,00,000/-
                    dt. 03.04.2013
        06          Bank statement of Rs.         27.01.2023 Ext. No.03/01
                    4,00,000/- & Rs. 4,00,000/-
                    dt. 04.05.2013




                                        19
                                                             2026:JHHC:4034




        07       Bank Statement of Rs.          27.01.2023 Ext. No.03/02
                 7,00,000/- dt. 10.06.2013
        08       Bank statement of Rs.          27.01.2023 Ext. No.03/03
                 4,00,000/- & Rs. 4,00,000/-
                 dated 17.12.2014
        09       Bank Statement dt.             14.02.2023 Ext. No.03/04
                 30.10.2015 to 16.05.2017
        10       Khas Mahal Letter No.167       25.04.2023 Ext. No.04
                 dated 15.04.2023

26. PW-1 (Mahavir Tiwary) filed his examination-in-chief on affidavit stating that he is the plaintiff in the suit. He further stated that he has filed the suit against the Deputy Commissioner, Hazaribagh, the Khas Mahal Officer, Hazaribagh and Ranjit Lahiri and after death of Ranjit Lahiri, he impleaded his heirs, Arjit Lahiri and Lekha Lahiri as parties. He further stated that Avijit Lahiri and Ranjit Lahiri are the holders of Khasmahal land (building lease) bearing Holding No.242, Plot No. 59/1564, Mouza- Korra, Thana No.156, Thana- Sadar, District- Hazaribagh, area 1 acre and Holding No.243 Plot No.58/1565, Thana No.156, Thana- Sadar, area 2.04 acre of gardening lease. Ranjit Lahiri, husband of Lekha Lahiri, expressed his desire to transfer half of the total land in his favour and thereafter, it was decided between him and Ranjit Lahiri to sell the said half of the land for Rs.76,00,000 and thereafter, an agreement for sale of the land was executed on 07.03.2013 between him and original Defendant No.3. He identified the agreement on which he and Ranjit Lahiri had signed. He further stated that after the amount was finalized, he issued Cheque Nos.691862 and 691863 for Rs.9,00,000 and Rs.8,00,000, total: Rs.17,00,000 in favour of Ranjit Lahiri and his wife Lekha Lahiri and also issued another Cheque No.199664 for Rs.8,00,000 in favour of Arjit Lahiri son of Ranjit Lahiri. All three cheques were of State Bank of India, Hazaribagh. All the three checks were honoured which is reflected in the bank statement issued by the bank. He further stated that after receiving the amount of Rs.25,00,000/- by Ranjit Lahiri and his family 20 2026:JHHC:4034 members, an "Agreement for Sale" was executed between Ranjit Lahiri and him for the said land. Thereafter, the original Defendant No.3 again demanded Rs.25,00,000/- for the said land and he paid the same through Cheque No.000002 dated 04.05.2013 for Rs.4,00,000 to Lekha Lahiri, Cheque No.000001 dated 04.05.2013 for Rs.4,00,000 to Ranjit Lahiri, Cheque No.00003 dated 10.06.2013 for Rs.7,00,000 to Lekha Lahiri, Cheque No.000043 dated 17.12.2014 for Rs.4,00,000 to Ranjit Lahiri, Cheque No.000045 dated 17.12.2014 for Rs.4,00,000 to Ranjit Lahiri and thus paid Rs.23,00,000 to Defendant No.3 and paid Rs.2,00,000 in cash on 15.12.2014 at the residence of the defendant at Kolkata and accordingly, he paid a total amount of Rs.50,00,000/- to the concerned defendants so far. He further stated that thereafter, a new agreement was executed between him and original Defendant No.3 on 17.12.2014, reducing the consideration amount from the previously agreed amount by Rs.1,00,000 i.e. from Rs.76,00,000/- to Rs.75,00,000/-. He further stated that before execution of an agreement on 17.12.2014, he gave Rs.8,00,000/- in cash to original Defendant No.3 at Canary Inn Hotel and thereafter, he gave Rs.15,00,000/-

through Cheque Nos.691882, 691881 and 691883 to Defendant No.3 for security reasons and told him to withdraw the money from the bank through the cheques after registering the power of attorney in his name. He further stated that the suit land is registered in the name of Ranjit Lahiri and his brother Avijit Lahiri, and the lease is currently pending for renewal at the Khas Mahal Office for the period from 10.04.2008 to 31.03.2038 and the Defendant No.3 told him that the renewal application is pending, so he should not mention the power of attorney and allow the renewal to take place first. He further stated that as per the terms of the agreement, he has got the lease of the suit land (Khas Mahal land) renewed till 2038 by bearing the entire cost in the name of original Defendant No.3 and his brother Avijit Lahiri and also informed them about the same. Thereafter, he asked the original defendant no.3 to transfer half of the suit land in his name by taking the remaining amount of Rs.17,00,000, but the original defendant no.3 said that the 21 2026:JHHC:4034 price of the said land has increased considerably and now the land will have to be purchased at the new price. Thereafter, on 25.06.2016, he saw some unknown persons entering the suit land and doing some work and, on his enquiry, they told him that they were sent by original Defendant No.3 and when he asked original defendant No.3 about this, no satisfactory reply was given by him. When some unknown persons came to the disputed land to work and began removing the bushes grown on the land, he questioned them, and they replied that the land had been purchased by Mr. Baleshwar Prasad Mehta and they were carrying out the work at his instance. He further stated that the original Defendant No.3 rejected the agreement made between him and original Defendant No.3 and the original Defendant No.3 started demanding more than the agreed amount. He stated that he has paid a total of Rs.58,00,000 to original Defendant No.3 and has requested him several times for the transfer of the suit land for the remaining amount, but original Defendant No.3 rejected his request. He also stated that he is still willing to purchase the said land and pay the remaining amount to Defendant No.3 and 3(a). When the original Defendant No.3 did not talk to him, he sent a legal notice to Defendant No.3 through speed post on 29.07.2016 through his advocate, in which he mentioned the agreement executed on 17.12.2014 and the terms and conditions stipulated in the said agreement, that the suit land would be transferred in his name, but no reply was given by Defendant No.3. He further stated that he also informed the Deputy Commissioner Hazaribagh, Khas Mahal Officer, Hazaribagh, but no action was taken and finally, he filed a criminal case before the learned Chief Judicial Magistrate, Hazaribagh against the original Defendant No.3 for cheating him. Thereafter, he filed the suit.

During his cross-examination, he admitted that the disputed land is a lease holding land of Khas Mahal and Avijit Lahiri and Ranjit Lahiri are the lease holders. Holding No.242 measuring 2.04 acres is a garden lease and Holding No.243 measuring 1 acre is a building lease in their 22 2026:JHHC:4034 names. He admitted that he has seen the copy of the lease agreement and the related holding register in the Khas Mahal Department. He also stated that the renewal of building lease was under process and the garden lease had been renewed.

27. On recall, PW-1 exhibited the agreement dated 07.03.2013 as Exhibit-1 and Agreement dated 17.12.2014 as Exhibit-1/1. He identified the photocopy of the legal notice dated 29.07.2016 as Mark- X and the legal notice dated 17.01.2017 sent to the Deputy Commissioner, Hazaribag and the Khas Mahal Officer, Hazaribag as Exhibit-2. Again on recall, PW-1 exhibited a bank statement of State Bank of India dated 03.04.2013 showing payment of Rs.8,00,000/- and Rs.9,00,000/- from his Bank Account No. 11071987525 to Lekha Lahiri as Exhibit-3, a bank statement from the Bank of India Vinoba Bhave University Branch, Account No. 5883101100018284 showing payment of Rs.8,00,000/- on 02.04.2013 to Arjit Lahiri and payment of Rs.4,00,000/- + Rs.4,00,000/- = Rs.8,00,000/- on 04.05.2013 to Lekha Lahiri as Exhibit-3/1. He also exhibited the bank statement dated 10.06.2013 showing payment of Rs.7,00,000 to Ranjit Lahiri as Exhibit-3/2 and the bank statement dated 17.12.2014 of State Bank showing payment of Rs.4,00,000/- + Rs.4,00,000/- = Rs.8,00,000/- to Ranjit Lahiri as Exhibit-3/3.

Thereafter, he exhibited the bank statement of the account of his firm Maa Laxmi Buildcon Pvt. Ltd. showing payment of rest amount to the original Defendant No.3. The plaintiff (P.W.-1) further stated that the balance amount was required to be paid to the concerned defendant and there was enough amount available in the bank account for which he exhibited the bank statement of his firm namely, Maa Lakshmi Buildcon Pvt. Ltd. along with its registration documents. He further stated that the bank statement was for the period 30.10.2015 to 16.05.2017 in the name of Maa Lakshmi Buildcon Pvt. Ltd. He exhibited the bank statement as exhibit 3/4.

During his cross-examination, he stated that the initial agreement was dated 07.03.2013 and fresh agreement was entered on 17.12.2014. He 23 2026:JHHC:4034 also stated that he was the proprietor of Maa Lakshmi Buildcon Pvt. Ltd. in connection with which he had filed the registration copy and also the certificate issued by the chartered accountant and that the bank statement was for the period from 2015 to 2017, but in the statement, the month and date is not mentioned and that the amount was there when the agreement was made. In his further cross-examination, he has stated that he is not aware as to whether money was available in his account or not and that it was required in the court. He stated that after he came to know he filed the aforesaid document in the court.

28. PW-2 (Ranjan Kumar Singh) filed his examination-in-chief on affidavit stating that he knows the plaintiff and the defendant of the suit. He further stated that the disputed land belongs to Khasmahal for which Ranjit Lahiri entered into an agreement to transfer the said land to the plaintiff, after receiving payment from the plaintiff in cash and through cheques. He identified the sale agreement executed by Ranjit Lahiri in favour of the plaintiff for the land and building lease of Khas Mahal, Mauja- Korra, Thana No.156, Thana- Sadar, District Hazaribagh, measuring 1 acre and the garden lease measuring 2.04 acres situated in Thana- Sadar (Korra), District- Hazaribagh. He further stated that Ranjit Lahiri had entered into an agreement to sell half of the land to the plaintiff for Rs.76,00,000/-. He further stated that the plaintiff has paid a total amount of Rs.58,00,000/- in cash and through cheques to the Defendant Ranjit Lahiri and his wife Lekha Lahiri and son Arjit Lahiri. Ranjit Lahiri had authorized the plaintiff for renewal of the said land and after the renewal, he entered into an agreement to transfer the said land to the plaintiff. After the renewal, the plaintiff informed Ranjit Lahiri about the same, but when Ranjit Lahiri evaded, the plaintiff sent a legal notice on 29.07.2016 through his advocate, but no reply was given by Ranjit Lahiri. In the meantime, when someone else cleared the bushes on the land, the plaintiff came to know that Ranjit Lahiri had expressed his desire to sell the said land to someone else. During cross- examination, he admitted that the agreement was entered between Ranjit Lahiri and Mahavir Tiwary, but he is not a witness in the 24 2026:JHHC:4034 agreement. Ranjit Lahiri died in the year 2020, leaving behind his wife namely, Lekha Lahiri and son Arjit Lahiri. The plaintiff had paid through 5 cheques and also in cash to the original Defendant No.3 and Rs.8 Lakhs was paid in cash in his presence to the Ranjit Lahiri in Canary Inn Hotel. In course of clearance of the bushes over the disputed land by Baleshwar Mehta through labourers, he came to know that Ranjit Lahiri wants to sell the land to someone else. He further admitted that the disputed land belongs to Khas Mahal and its lease was given to Ranjit Lahiri and Avijit Lahiri and no partition had taken place between Ranjit Lahiri and Avijit Lahiri.

29. So far as defendants are concerned, no oral and documentary evidence has been adduced on behalf of the Defendant Nos. 1 and 2 and the proceeding against other defendants i.e. Defendant No.3 and 3(a) was ex-parte.

30. The foundational facts which emerge from the materials placed on record are as under:

(a) Suit for specific performance of contract dated 17.12.2014 (exhibit-

1/1) entered into between the plaintiff and the original defendant no. 3 was filed in connection with schedule-A [holding no. 242 (B.L.) plot no. 59/1564 - house property, area 1 acre] and schedule -B [holding no. 243, plot no. 58/1565 - orchard, area 2.04 acres]. A relief has also been prayed seeking possession of the property.

(b) Suit properties are Khas Mahal lease hold properties granted by the government as per terms and conditions mentioned therein and are subject to renewal.

(c) The schedule-A and schedule-B property was taken on lease by the original defendant no. 3 and his brother Avijit Lahiri. Avijit Lahiri was neither a party to the agreement of sale nor was a party to the suit. The agreement of sale dated 17.12.2014 which was the subject matter of the suit was in relation to ½ share belonging to the original defendant no. 3. Admittedly, there has been no partition between the original defendant no. 3 and his brother Avijit Lahiri. A relief was 25 2026:JHHC:4034 also sought seeking possession of the property- that is ½ share belonging to original defendant no.3.

(d) The building lease in connection with schedule-A property as well as the orchard lease with respect to schedule-B property expired on 01.04.2008. It was the case of the plaintiff that the building lease was in the process of renewal for the period from 01.04.2008 to 31.03.2038 whereas the orchard lease was renewed till 31.03.2038. However, the materials reveal that the registered deed consequent to renewal of orchard lease was yet to be executed between the state authority represented by the defendant no.1 and 2 and the original defendant no. 3 and his brother Avijit Lahiri.

(e) Original defendant no. 3 had appeared and had filed a petition under Order XIV Rule 11 of the Code of Civil Procedure seeking rejection of the plaint which was dismissed, but he did not file any written statement. Upon his death, he was substituted by his wife and his son in the suit who also did not file written statement and ultimately, the suit proceeding was set ex-parte against them.

31. The defendant nos. 1 and 2 represented the government. Since the property was Khas Mahal property, they filed their written statement. Some of the important points raised in the written statement are as under: -

a) They disputed the description of the suit property and asserted that holding no. 242 forming part of schedule - A property was relatable to plot no. 58/1564 and holding no. 243 relating to orchard lease was relatable to plot no. 58/1566. The description of plots in the schedule A and B was wrong.

b) The Khas Mahal lease was renewed in the name of two lessees namely, Ranjit Lahiri and Avijit Lahiri for the period from 01.04.1978 to 31.03.2008.

c) The renewal of the building lease in connection with holding no.

242 for the period 01.04.2008 to 31.03.2038 was under process. So far as renewal of orchard lease in holding 243 was concerned, the order of the Deputy Secretary, Department of Revenue and 26 2026:JHHC:4034 Land Reforms, Jharkhand, Ranchi regarding its renewal was received but the deed of lease was not yet registered.

d) A plea was also raised that the suit was bad for non-joinder and mis-joinder of necessary parties.

e) It was further pleaded that the original defendant no. 3 had no right to transfer the land without permission of the competent authority of the Government of Jharkhand and any application seeking permission to transfer was not yet received by the office of Khas Mahal Officer, Hazaribag and they had no information about the agreement to sale dated 17.12.2014 between the plaintiff and the original defendant no. 3 and also with regard to payment of any consideration amount with respect to schedule- A/schedule-B property.

f) It was also asserted that the original defendant no. 3 had no right to execute any agreement with respect to Khas Mahal lease holding no. 242 and 243 in favour of the plaintiff without permission of the Deputy Commissioner, Hazaribag.

32. The agreement of sale dated 17.12.2014 has been exhibited as exhibit-1/1. The two Khas Mahal leases in favour of the original defendant no. 3 and his brother Avijit Lahiri have not been exhibited. However, the exhibit- 4 which is letter no. 167 dated 15.04.2023 along with its enclosures has been brought on record. The said letter has been issued by the Khas Mahal Officer, Hazaribag giving certain information to the plaintiff under Right to Information Act, 2005. One of the enclosures to exhibit-4 is letter bearing memo no. 577 dated 28.06.2013 which relates to renewal of holding no. 243, plot no. 58/1566 area 2.04 acre in favour of the original defendant no. 3 and his brother Avijit Lahiri for the period from 01.04.2008 to 31.03.2038 fixing the Salami at Rs. 5,78,381/- and annual rent from 01.04.2008 @ Rs. 1785/- apart from cess was also payable. An enclosure to the letter is the Challan showing deposit of Rs. 5,78,381/- with respect to holding no. 243 and such deposit is by Avijit Lahiri - the brother of original defendant no.

3. Another enclosure to exhibit- 4 is letter dated 16.02.2015 indicating 27 2026:JHHC:4034 that the concerned Divisional Commissioner/Deputy Commissioner, subject to the area of land, has been empowered for the purpose of renewal of Khas Mahal lease and by the said letter, the records of the matters pending for renewal of lease since 2007-08, were sent to the office of the Deputy Commissioner by the Government of Jharkhand, Revenue and Land Reforms Department. The exhibit- 4 giving information under Right to Information Act, 2005 to the plaintiff reveals that with respect to holding no. 243 plot no. 58/1566, the amount of Rs. 5,78,381/- had been deposited through challan by Avijit Lahiri, but so far as holding no. 242 is concerned, the same is relating to plot no. 59/1564. In the documents filed by the plaintiff, the plot numbers mentioned therein do not match with the plot numbers mentioned in the schedule of the property but the holding numbers are correctly mentioned in the schedule.

33. Neither the lease deeds standing in the name of the original defendant no. 3 and his brother Avijit Lahiri nor the renewed lease deed with respect to holding no. 243 has been exhibited although it was claimed by the plaintiff that the lease deed with respect to the orchard (holding no. 243) was already renewed. The documents furnished by the plaintiff show that payment for renewal has been made but the registered deed has not been executed with respect to the orchard lease. Further, admittedly, there has been no renewal of lease in connection with holding no. 242 and the application for renewal was pending.

34. Thus, the plaintiff claims to have entered into agreement of sale with respect to undivided 1/2 share of the schedule A and schedule B properties with the original defendant no. 3. It is not the case of the plaintiff that there has been any partition between the original defendant no.3 and his brother Avijit Lahiri in whose favour the two Khas Mahal leases were jointly granted. However, the process of renewal was yet to complete.

Point of determination no. (iii) Whether the plaintiff was ready and willing to perform his part of the contract?

2026:JHHC:4034

35. As per the case of the plaintiff, the plaintiff had already paid consideration amount of Rs. 58 lakhs out of the consideration of Rs. 75 lakhs and the balance consideration amount was only Rs. 17 lakhs which the plaintiff was ready and willing to pay. In paragraph 18 of the plaint, it has been stated that the plaintiff had performed his part of the contract by paying 58(Fifty-eight) lakhs rupees to the defendant no.3.There is discrepancy with regards to the amount due under balance consideration which will be explained later in this judgment.

36. It was also asserted in the plaint that the agreement to sale dated 17.12.2014 does not envisage any other steps to be taken by the plaintiff till the receipt of intimation from original defendant no.-3 about his having obtained all requisite permission. The plaintiff till the date of filing the suit had not received any such intimation despite repeated requests and reminder to the original defendant no.3.

37. Admittedly, no written statement was filed by the original defendant no. 3 and upon his death his legal heirs were substituted and the proceeding was set-ex-parte against them. The suit was contested by the defendant no.1 and 2 by filing written statement. The witnesses of the plaintiff were cross examined. No evidence was produced by the defendants, either oral or documentary.

38. The schedule-2 to the agreement of sale dated 17.12.2014 (exhibit-1/1) deals with terms and conditions of payment and the total consideration has been mentioned as Rs.75 lakhs.

39. The fact that the original defendant no. 3 and his brother Avijit Lahiri were joint lessees is apparent from the agreement itself and the agreement reveals that the original defendant no. 3 was entitled to undivided 1/2 share. This detail has been provided in schedule-1 to the agreement.

40. The agreement further reveals that both the lessees had got the leases renewed till 31.03.2008 and for renewal of the leases for next 30 years from 01.04.2008 to 31.03.2038, joint applications were filed in time and were pending vide lease renewal case no. 46 of 2007-08 and lease renewal case no. 47 of 2007-08 with respect to holding no.

2026:JHHC:4034 242(Building) and holding no. 243 (orchard) respectively and the orchard lease had been renewed till 2038. The agreement also reveals that the original defendant no. 3 wanted some money on account of his treatment.

41. The agreement clearly revealed that the sale and purchase was to take place after the required permission for the same was obtained from the Deputy Commissioner, Hazaribag or any other authority stipulated by the Government of Jharkhand and it was agreed that the 2nd party i.e., the plaintiff herein was to bear all the expenses. The agreement provided that the plaintiff shall bear all the funds required for transferring the property to him including lease premium of First party for obtaining permission to sell half the share of the original defendant no.3 in accordance with lease regulations. It was further mentioned in the agreement that after both parties signed the sale agreement, it was the duty of the plaintiff to pursue with the tasks involved in lease renewal of the property and this would also mean any expenses incurred during the approval process e.g. Government fees, Bank draft fees, sundry expenses, litigation expenses, if any, etc. which was to be borne by the plaintiff.

42. As per the agreement, after the Khas Mahal authorities issued deed in favour of the original defendant no.3, balance amount of Rs. 10 lakhs was to be paid by the 2nd party i.e., the plaintiff to the original defendant no. 3. The plaintiff was also supposed to get the renewal done and pursue the matter of taking permission for sale and the original defendant no. 3 was to hand over all the necessary applications under his signature to the plaintiff and was to appear in person, if required. The terms and conditions of the contract of sale reflecting the aforesaid conditions is apparent from the following clauses of the agreement:

"1. That the sell and purchase shall be after taking required permission for the same from Deputy Commissioner, Hazaribag, or any other authority, stipulated by Govt of Jharkhand.

2. That the Second Party shall bear all the funds required for transferring the property to Second Party, including lease premium of First party, for obtaining permission from a 30 2026:JHHC:4034 government stipulated authority to sell half the share of the First Party to the Second Party in the aforesaid two lease hold properties mentioned under Schedule 1 in accordance with lease regulations. Second party will also bear cost of stamp, registration fee, etc in executing and registration of sale deed in the name of the Second Party by the First Party.

3. The Lease renewal for the property mentioned in Schedule 1 is pending approval and the First party has duly informed the Second party of the same. Orchard lease has been renewed. Building lease renewal is pending. After both parties have signed the sale agreement it is the duty of the Second party to pursue with the tasks involved in lease renewal of the property under Schedule 1. This also means any expenses incurred during the approval process e.g. Government fees, Bank draft fees, sundry expenses etc. has to be borne by Second party. Fees for litigation, if it happens, will be borne by Second Party.

4. That after Khasmahal authorities issues deed in favour of First Party, balance Rupees Ten lacs will be paid immediately by Second Party to First Party, and it is the onus of Second Party to transfer the said property in his name, and take possession, where First Party will not be involved or be responsible, for the above mentioned points. The sale by First Party to Second party is final and irrevocable.

5. Second Party will get the renewal done, and pursue the matter of taking permission for sale for which the First Party will hand over all necessary applications, under his signature to the Second Party and will appear in person if required."

43. This court finds that in the agreement to sell dated 17.12.2014 (exhibit-1/1) which is sought to be enforced through the suit for specific performance of contract, the balance consideration has been mentioned as Rs.10 lakhs. However, in paragraph 22 of the plaint the balance consideration amount has been mentioned as Rs.17 lakhs and in paragraph 9 and 12 of the plaint the balance amount to be paid has been mentioned as Rs.25 lakhs and the plaintiff has also mentioned that he started arranging for the balance consideration amount.

Para 9, 12 and 22 of the plaint "9.That meanwhile since renewal of building lease was under

process as a result of which the defendant no.-3 asked the plaintiff that transfer application before the Khas Mahal Office 31 2026:JHHC:4034 would not be send and accordingly assured the plaintiff to remain confident as he would execute the Power of Attorney soon after being informed of the renewal of the land and the premises in his name whereafter he would realise the balance consideration amount of rupees 25 lakhs from the plaintiff.

12.That this assurance by the defendant no. - 3 kept the plaintiff under the impression that when the land and premises of building lease gets renewed from 01.04.2008 to 31.03.2038 he would get the land and premises transferred in his name. In this manner the plaintiff further started putting his effort in gathering 25 lakhs to be given to the defendant no.-3 in future.

In this manner the entire conduct and act of the plaintiff shows that he was very much willing and ever ready to purchase the half share of the defendant no.-3 schedule 'A' and 'B' land.

22. That the plaintiff is still willing and ever ready to purchase the schedule 'A' & 'B' land and ready to give balance 17(seventeen) lakhs rupees to the defendant."

Clause 4 of the agreement: -

"4. That after Khasmahal authorities issues deed in favour of First Party, balance Rupees Ten lacs will be paid immediately by Second Party to First Party,......................"

44. The plaintiff in his evidence in chief in para 12 read with paragraph 17 has stated that he has paid Rs. 58 lakhs and approached the original defendant no.3 for payment of the balance consideration amount of Rs. 17 lakhs but the same was refused.

45. This court finds that the stand of the plaintiff with respect to the balance consideration amount in the plaint is inconsistent. It the plaint, somewhere it is stated that the balance amount was Rs.25 lakhs and somewhere it is mentioned as Rs.17 lakhs. In the evidence, it has been stated as Rs.17 lakhs. This is also inconsistent with the agreement to sell date 17.12.2014 (exhibit-1/1) where the remaining amount to be paid has been mentioned as 10 lakhs.

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46. This court also finds that as stated in the plaint, the plaintiff took the required follow up steps for the purposes of renewal of the orchard lease, but the materials on record reveal that the amount for renewal of orchard lease -holding no 243 was paid by Avijit Lahiri (brother of the original defendant no.3) on 30.09.2013 (enclosure to exhibit-4) amounting to Rs. 5,78,381/- and still the registered deed was not executed. Further the enclosure to exhibit-4 is letter bearing memo no. 577 dated 28.06.2013 which relates to renewal of holding no. 243, plot no. 58/1566 area 2.04 acre in favour of the original defendant no. 3 and his brother Avijit Lahiri for the period from 01.04.2008 to 31.03.2038 fixing the Salami at Rs. 5,78,381/- and annual rent from 01.04.2008 @ Rs. 1785/- apart from cess was also payable. However, there is nothing on record to show as to what steps were taken by the plaintiff to clear the dues of annual rent and cess.

47. Over and above the aforesaid, this court finds that there is neither any pleading nor any evidence to show as to what steps were taken by the plaintiff to get the registration of the deed relating to orchard lease done even after Avijit Lahiri (brother of the original defendant no.3) on 30.09.2013 paid the salami amounting to Rs. 5,78,381/- for renewal of orchard lease. With respect to renewal of the lease of house-holding no. 242 there was no progress. However, the application for renewal of the khasmahal lease deed for the holding no. 242 (corresponding case no. 46 of 2007-08 as mentioned in the agreement) along with other renewal applications of other applicants were sent to Deputy Commissioner / Divisional Commissioner subject to the area of land involved vide letter dated 16.02.2015 (enclosure to the exhibit-4). As per the agreement, the entire liability, expenses and the responsibility right from pending renewal applications were to be borne by the plaintiff.

48. It was also asserted by the plaintiff that the agreement to sale dated 17.12.2014 did not envisage any other steps to be taken by the plaintiff till the receipt of intimation from original defendant no.-3 about his having obtained all requisite permission and that the plaintiff had not received any such intimation despite repeated requests and 33 2026:JHHC:4034 reminder to the original defendant no.3. This stand of the plaintiff is contrary to and in conflict with the clauses of the agreement to sale dated 17.12.2014 which will be apparent from the clauses quoted above and the discussions made below.

49. There can be no doubt that in a suit for specific performance arising out of agreement of sale, the plaintiff has to demonstrate his readiness and willingness to perform his part of the contract. Willingness is primarily demonstrated by the conduct of the parties and readiness includes the readiness to pay the balance consideration amount and for that purpose availability of fund for payment of balance consideration amount is required to be pleaded and proved. The party has to demonstrate readiness and willingness right from the date of agreement till the decree is passed. The readiness and willingness has to be pleaded and proved right from the date of contract till the decree is passed by the court.

50. So far as willingness on the part of the plaintiff to perform his part of the contract is concerned, this court finds from the agreement itself that it was agreed that after the agreement it would be the duty of the plaintiff herein to pursue with the tasks involved in lease renewal of the property and any expenses incurred during the approval process e.g. Government fees, Bank draft fees, sundry expenses etc. have to be borne by plaintiff herein. It was also agreed that after Khasmahal authorities issues deed in favour of original defendant no.3 the balance Rupees Ten lacs will be paid immediately by the plaintiff to the original defendant no.3, and the onus will be upon the plaintiff herein to get the property transferred in his name and take possession and the original defendant no.3 would not be involved or be responsible, for the above- mentioned points. The plaintiff herein would get the renewal done, and pursue the matter of taking permission for sale for which the original defendant no.3 would hand over all necessary applications, under his signature to the plaintiff herein and would appear in person if required.

51. This court finds that the plaintiff has made a vague statement in the plaint that he was regularly taking steps in the matter of renewal and 34 2026:JHHC:4034 by his effort only the orchard lease was renewed but there is neither any averment nor any evidence led by the plaintiff as to what steps were taken by the plaintiff in the matter of renewal/ execution of registered deed of renewal after the agreement of sale dated 17.12.2014 (exhibit- 1/1). Further the plaintiff has also asserted in the plaint that the agreement to sale dated 17.12.2014 does not envisage any other steps to be taken by the plaintiff till the receipt of intimation from original defendant no.-3 about his having obtained all requisite permission and that the plaintiff till the date of filing the suit had not received any such intimation despite repeated requests and reminder to the original defendant no.3. This stand is contrary to the agreement itself. Under the agreement, the plaintiff had taken up the entire responsibility to pursue the matter before the authorities regarding renewal, execution of registered lease deeds and also filing application seeking permission for transfer and to pursue such application and the original defendant no.3 had just agreed to cooperate and even appear before the authorities as and when required. Thus, in the suit the plaintiff is trying to pass the entire burden to the original defendant no.3 which is contrary to the task undertaken by the plaintiff as per the agreement.

52. Admittedly, unless the leases are renewed and registered deeds are executed, there is no occasion to apply for permission to seek transfer and as per the agreement the steps were required to be taken by the plaintiff and the original defendant no.3 agreed to fully cooperate and even agreed to appear in person. There is complete silence on the part of the plaintiff for a period of about 2 years before filing the suit seeking specific performance of agreement of sale.

53. The plaintiff has failed to plead and prove his willingness to do the needful in terms of the agreement so that the leases are renewed and registered deeds are executed so as to file applications seeking permission from the competent authority for transfer of undivided ½ share of the original defendant no.3 to the plaintiff.

54. So far as readiness to perform his part of agreement, the plaintiff, has made a vague statement that he is ready to perform his part of 35 2026:JHHC:4034 agreement but there is no pleading with regards to availability of fund or adequate means to make the fund available to incur expenses with regards to and in connection with renewal of leases and their registration. With regards to orchard lease, area 2.04 acres, only salami of Rs. 5,78,381/- was paid by Avijit Lahiri but annual rent from 01.04.2008 @ Rs. 1785/- apart from cess was also payable and was yet to be paid and there is nothing on record to even suggest as to what steps were taken by the plaintiff to clear the said dues and also with regards to availability of fund for that purpose. With respect to the renewal of house lease area 1.00 acre, the premium for the renewal was yet to be paid upon quantification and demand and this was also to be followed up by the plaintiff as per the agreement. The liability to pay the balance consideration was over and above the aforesaid liabilities.

55. However, to demonstrate the availability of fund, though without any foundational pleadings, the plaintiff has relied upon the fund which was available in the bank account of a company namely, Maa Lakshmi Buildcon Pvt. Ltd. and stated that it was his proprietorship firm. The plaintiff has also produced documents to show that he was one amongst the three directors of the said company and was authorized signatory of the bank account maintained by the said company, the plaintiff has also produced the registration certificate of the company (Maa Lakshmi Buildcon Pvt. Ltd.) with Building Construction Department, Government of Jharkhand to show that the plaintiff was the power of attorney holder of the company namely, Maa Lakshmi Buildcon Pvt. Ltd. However, the said registration certificate reveals that Maa Lakshmi Buildcon Pvt. Ltd. was registered as Class 1 contractor during the period from 14.09.2017 to 13.09.2022 with the building construction department and a code was allotted to the said company and the plaintiff had signed the same in the capacity of power of attorney of the company. The registration certificate is dated 14.09.2017.

56. During the course of evidence, the plaintiff has claimed that the said company is his firm. There can be no doubt that a proprietorship firm is owned by the proprietor himself, but a private limited company 36 2026:JHHC:4034 is a distinct legal entity and is not owned by one of its directors. This court is of the considered view that merely because some amount was available with the company in which the plaintiff was merely a director and merely because he was the authorized signatory of the company as per the certificate issued by the chartered accountant dated 30.01.2023 (exhibit-3/4 marked with objection), the same does not demonstrate availability of fund with the plaintiff in his individual capacity or availability of source of fund to show his readiness to perform his part of the contract by making payment of the balance consideration and meet other expenses in the matter of renewal as undertaken by the plaintiff . During his cross-examination, with respect to availability of fund after he had exhibited the aforesaid documents relating to Maa Lakshmi Buildcon Pvt. Ltd., the plaintiff has again referred to availability of fund in the account of Maa Lakshmi Buildcon Pvt. Ltd., but claimed that he was the proprietor of the said company and further stated that he had no idea whether the amount was available in his bank account or not. It is also important to note that the availability of fund with Maa Lakshmi Buildcon Pvt. Ltd. for making payment of the balance consideration amount with respect to the agreement of sale does not find mention in the plaint. Otherwise also, merely because amount is available in the company in which the plaintiff is a director, the same is not equivalent to saying that the amount was available with the plaintiff to make payment of the balance consideration amount. No board resolution has been placed on record that the balance consideration amount/expenses to be incurred in the matter of renewal /registration of renewed lease deeds could be made available to the plaintiff for the purpose of discharging the obligations undertaken by the plaintiff as per the agreement involved in this case which he had entered in his individual capacity.

57. The aforesaid circumstances reveal that the plaintiff failed to appropriately plead his readiness also to perform his part of the agreement and has miserably failed to prove his readiness to perform his part of the agreement.

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58. In the judgment passed by the Hon'ble Supreme Court reported in (2007) 10 SCC 595 (Supra), the trial court as well as the 1st appellate court found that the plaintiff was ready and willing to perform his part of the agreement, but the competent authority had refused to grant permission for sale. The Hon'ble Supreme Court observed that permission is not a condition precedent for grant of decree for specific performance and if after the grant of decree of specific performance of contract, the competent authority refused to grant permission for sale, the decree holder may not be in a position to enforce the decree, but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of contract. It has also been held by the Hon'ble Supreme Court in the said case, by referring to an earlier judgment of privy council, that if vendor had agreed to sell the property which can be transferred only with the sanction of some government authority, the court has jurisdiction to order the vendor to apply to the authority within a specified period and if the sanction is forthcoming, to convey to the purchaser within a certain time and this was in view of the judicial pronouncement that there is always an implied covenant on the part of the vendor to do all things necessary to effect transfer of the property regarding which he had agreed to sell the same to the vendee.

59. This Court is of the considered view that the aforesaid judgment does not apply to the peculiar facts and circumstances of this case. In this case the facts are as follows: -

a. the period of lease deeds have expired;

b. lease deeds were in the joint name of the original defendant no. 3 and his brother Avijit Lahiri who have jointly applied for renewal of the leases;

c. with respect to orchard lease the premium for renewal has been paid by Avijit Lahiri but process of renewal is not complete as registered deed has not yet been executed which has to be done in joint name of the two brothers;

2026:JHHC:4034 d. with respect to the house lease there has been no progress in the matter of renewal and the application is pending and even premium for renewal has not been paid;

e. Admittedly, the leases have not yet been renewed and such renewal would require execution of the registered deed which is also to be jointly executed by the original defendant no. 3 and his brother and admittedly, there has been no partition between the two brothers.

f. Avijit Lahiri was neither a party to the agreement nor was a party to the suit and in such circumstances no direction can be issued to Avijit Lahiri to participate in the matter of renewal/registration of the renewed lease deeds and direction only to the original defendant no.3 / his legal heirs and also to the authorities of the state (defendant no.1 and 2) would be of no consequences as the decree in this case will not be binding upon Avijit Lahiri.

g. In absence of renewal of lease deeds, no application seeking permission to transfer undivided ½ share of the original defendant no.3 can be filed before the competent authority. Even if a direction is issued to the original defendant no.3/his legal heirs to file an application seeking permission to transfer , the same would be of no consequence in absence of renewal /registration of the lease deeds which certainly requires participation of Avijit Lahiri to whom no direction can be issued as explained above.

60. In the absence of Avijit Lahiri as a party to the agreement and also in the suit, the entire gamut of affairs is uncertain and much depends upon the further conduct of Avijit Lahiri with respect to which no decree can be passed. This is over and above the fact that a finding has been recorded by this Court that the plaintiff was neither ready nor willing to perform his part of the contract. The condition precedent to even apply for permission for transfer of ½ share has not been satisfied 39 2026:JHHC:4034 in the present case and there is complete uncertainty right from the execution of the registered deed of renewal till the actual transfer.

61. In (2019) 6 SCC 233 (Supra), it has been held by the Hon'ble Supreme Court that readiness and willingness on the part of the plaintiff to perform his part of the contract with reference to the fact as to whether the plaintiff possesses sufficient fund to pay the consideration is inconsequential where the defendant himself failed to perform his part of the contract.

62. This Court is of the considered view that the said judgment also does not apply to the facts and circumstances of this case, inasmuch as, the availability of fund was required to be proved not only with respect to the balance consideration amount, but also with respect to obligations undertaken by the plaintiff right from the stage prior to renewal of the lease deeds which required availability of fund for the purpose of deposit of the premium amount for renewal of the lease and other expenses to be incurred including payment of rent from 2008 and cess relating to the house property though admittedly the amount of premium relating to renewal of orchard lease was deposited by Avijit Lahiri- the brother of the original defendant no. 3 but the rent from 2008 and cess which was to be paid as per exhibit -4, was not yet paid. The plaintiff had undertaken to take all steps and also incur all expenses in connection with renewal of lease/execution of registered lease deeds upon renewal and then file application seeking permission to transfer and what was left to be done by the original defendant no. 3 was to cooperate with the plaintiff and to appear before the authority as and when required. Further, as discussed above, the quantum of balance consideration as per the plaint is Rs. 25 lakhs at one place and Rs. 17 lakhs at another place and as per the agreement the balance consideration is only Rs.10 lakhs and such inconsistency remains unexplained.

63. This Court finds that the learned trial court has taken various aspects of the matter into consideration while holding that the plaintiff was neither willing nor ready to perform his part of the contract. This 40 2026:JHHC:4034 Court, after going through the detailed discussions made by the learned trial court, does not find any reason to differ with the finding of the learned trial court. Accordingly, this point of determination no. (iii) is decided against the appellant and in favour of the respondents and it is held that the plaintiff was neither ready nor willing to perform his part of the agreement.

Point of determination no (ii) -

Whether agreement dated 17.12.2014 entered between the plaintiff and the original Defendant No.3 was void in view of Section 29 of the Indian Contract Act, 1872?

64. This point is required to be considered in the light of Section 13(1)(b) of Specific Relief Act, 1963.

65. Section 29 of the Indian Contract Act, 1872 "29. Agreements void for uncertainty.- Agreements, the meaning of which is not certain, or capable of being made certain, are void."

Section 13(1)(b) of Specific Relief Act, 1963 "13. Right of purchaser or lessee against person with no title or imperfect title.-

(1)...

(a)...

(b) where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other persons is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance;"

66. Section 29 of the Indian Contract Act clearly provides that the agreements, the meaning of which is not certain, or capable of being made certain, are void. A reference has been made to section 13(1)(b) of the Act of 1963 by the learned counsel for the appellant to submit that section 13(1)(b) provides that where the concurrence of another person is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may 41 2026:JHHC:4034 compel him to procure such concurrence. It has also been provided that when a conveyance by other person is necessary to validate the title and they are bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance.

67. Learned counsel for the appellant has relied upon the judgment passed by the Hon'ble Patna High Court reported in 2003 (2) JLJR 293 (Jagat Nath Mukherjee and Others Vs. The State of Bihar and others) to submit that under Khas Mahal lease, the renewal of lease is a mere formality which must be granted automatically. He submitted that the learned trial court ought to have directed for renewal of lease and then, the property could have been transferred in favour of the plaintiff.

68. This Court finds that with respect to orchard lease, the amount for renewal was deposited by the brother of the original defendant no. 3 way back in the year 2013, but the registered deed of renewal was not yet executed. The brother of the original defendant no.3 is neither party to the agreement nor party to the suit. Since the property is leased on the joint name of the original defendant no.3 and his brother, the registered deed upon renewal has to be executed jointly in their name and no material has been placed on record to hold otherwise. Admittedly there has been no partition between the said two brothers and the plaintiff has entered into agreement of sale with one brother, the original defendant no.3, to the extent of his ½ share of undivided property. There is no possibility to direct the brother of the original defendant no.3 to join with the original defendant no.3 for execution of renewed khas mahal lease deed with the defendant no. 1 and 2 as the brother of the original defendant no.3 is not party. Unless the lease is renewed there is no occasion to seek transfer of ½ share to the plaintiff in terms of the agreement. Admittedly no application seeking permission to transfer has been filed so far.

69. In the aforesaid circumstances, no useful purpose can be served by issuing any direction upon defendant no.1 and 2 in the matter of renewal / execution of registered lease deeds and therefore, the 42 2026:JHHC:4034 judgements relied upon by the appellant do not apply to the facts and circumstances of this case.

70. It is also important to note that the question of transfer in favour of the plaintiff could arise only after renewal and nothing has been shown by the appellant that the permission to transfer lease hold right under khasmahal lease is a matter of right or automatic. This Court is of the view that although the renewal of lease is a matter of right, but the permission to transfer is neither automatic nor a matter of right. In such circumstances, the reliance made by the learned counsel for the appellant on section 13(1)(b) of the Act of 1963 is misplaced.

71. In the aforesaid circumstances, the agreement itself is uncertain as the execution and registration of the renewed lease deed is dependent upon the conduct of third party, the brother of the original defendant no.3, who is neither party to the agreement nor party to the suit and admittedly no application seeking permission for transfer has been filed so far nor it could have been filed before renewal of the lease through registered instruments and the agreement of sale itself has been entered after expiry of the lease period. Under the aforesaid circumstances, this court is of the considered view that the agreement itself is void under section 29 of the Indian Contract Act, 1872 on account of not capable of being made certain. The agreement is apparently for future transaction and uncertain conduct.

72. The findings of the learned trial court on issue no. (vii) and (viii) are as under:

In order to decide Issue No. vii & viii, firstly, I would like to go through the agreement dt. 17.12.2014 (Exhibit no 1/1) alleged to be entered on behalf of both the parties. In said agreement both the parties are agreed for transfer half share of khas mahal land of Scheduled "A" and Schedule "B" property maintained as plaint. The said property was got by plaintiff through a building lease by Government/state which was under process of renewal from 01.04.2008 to 31.03.2038 and plaintiff entered into Agreement for sell with plaintiff on 17.12.2014 without renewal of the said lease. further it also appears that as per Rules 9 and 21 of Bihar government estates Manual 1953 provides that settlement/transfer is permissible only with the prior approval of 43 2026:JHHC:4034 state government. Plaintiff had not produced any chit of paper who shows that defendant no 3 was got prior permission from the state for transferring the said khas mahal land or not produced any documents also who shows that he was apply for said permission. Pw.1 plaintiff himself admitted the facts in his Statement and also supported by the P. W 2. Witnesses have admitted that before the lease transfer prior permission of the state is necessary. Further Plaintiff has also brought a document letter No 167/khas mahal dt. 15.04.23 (Ext. No. 4) in which it shows that that ............

in the letter is clearly in the letter it is clearly direction by the state/renewal Authority in Clause (c) that the said land was used only for the purpose of Bagwani. it means the lessess can not the said property for other purpose like that sell or Transfer or construct building. In this letter, it also appears that there is no any permission for transfer of khas mahal land to third party. In respect of the above-mentioned land the renewal was under

process at the time of taken advance money by the plaintiff i.e. 2013 and the Agreement dt 07.03.2013 was executed for future conduct. Further on dt 17.12.2014 the renewal letter was also not in hand of parties and no prior permission was got to transfer the khas mahal land from the state /Authorities. In this circumstances defendant was no legal right to execute the Agreement of sell for said khas mahal land and as per section and the said Agreement is against the law of Bihar Estate Manual 1953.

In W.P.(C) No. 5409 of 2016 Hon'ble high court of Jharkhand, find that-"........ Khas Mahal lease cannot be transferred to anyone. Pendency of an application for lease will not give any right to the petitioner or his predecessor in interest to take possession over the land in question."

However, the plaintiff and defendant executed the Agreement dated 17.12.2014 before any renewal and prior permission from the State and as per Agreement, the parties were agree on condition that, "after the renewal of lease by the Government...", means that on agreement the contract is for future transaction and uncertain conduct which is unlawful and illegal in the eye of law. Agreement that does not currently exist, but are agreed to potentially exist in the future are also legally void, unless all items in the agreement are actually agreed.

Section 29 of Indian Contract Act says that Agreements, the meaning of which is not certain, or capable of being made certain, are void A void agreement is one which cannot be enforced by law."

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73. This court is of the considered view that the learned trial court has rightly come to a conclusion that the agreement dated 17.12.2014 is hit by section 29 of the Indian Contract Act, 1872 while deciding issue no. (vii) and (viii).

74. The point of determination no. (ii) is accordingly answered against the appellant and in favour of the respondents.

75. Before proceeding to deal with other points for determination, it would be relevant to deal with the judgments cited by the appellant which has bearing on both the points for determination decided above, but do not apply to the facts and circumstances of this case.

76. In the judgment passed by the Hon'ble Supreme Court reported in 2010 SAR (Civil) 645 (Laxman Tatyaba Kankate and Another Vs. Taramati Harishchandra Dhatrak), the trial court had decreed the suit for specific performance in respect of the land upon grant of permission by the competent authority as contemplated under section 12(c) of the Resettlement Act applicable in the said case and a direction was issued upon the proposed vendor to submit an application seeking permission from the competent authority to execute a registered sale-deed in favour of the respondent of the said case. In the said case reliance was placed on the judgment passed by the Hon'ble Supreme Court in the case of Nathulal Vs. Phoolchand (Supra).

77. The Hon'ble Supreme Court held that section 13(1)(c) of the Specific Relief Act clearly postulates that where a person contracts to sell immovable property with an imperfect title and the property is encumbered for an amount not exceeding the purchase money, the purchaser has the right to compel the seller to redeem the mortgage and obtain a valid discharge and then specifically perform the contract in its favour. The Court was of the view that even from this point of view, the right of the respondent was fully protected.

78. The aforesaid judgment does not apply to the facts of the present case. In the present case, admittedly the lease was standing in the joint name of the original defendant no. 3 and his brother Avijit Lahiri and the original defendant no. 3 had entered into agreement with respect to 45 2026:JHHC:4034 half share of his undivided property and the plaintiff was seeking enforcement of specific performance of contract with respect to undivided half share of the original defendant no.3. In the absence of Avijit Lahiri as a party to the suit and also party to the agreement no direction can be issued to complete the process of renewal and registration of renewed lease deed and therefore no direction can be issued to the respondent no. 1 and 2 , the state authorities, to complete the process of renewal and then accept and process the applications seeking permission for transfer of the undivided ½ share of the property to the plaintiff. Admittedly no application for transfer can be entertained without renewal of the leases and admittedly no such application for transfer has been filed by the plaintiff/original defendant no.3.

79. There can be no doubt in view of the judgment relied upon by the learned counsel for the appellant which is reported in 2003 (2) JLJR 293 (Supra) that the renewal of the lease deed may be a mere formality and the same must be granted automatically as a routine. This Court also finds that in the said judgment there is no such finding that the authorities can be compelled, as a matter of right, to give concurrence to transfer the lease hold right in favour of the plaintiff. Further, there is no dispute that the concurrence of the State Government is necessary for the purpose of transfer to the plaintiff and this situation would arise only after the lease deeds are renewed and registered and then the occasion would arise to seek permission for transfer. Consequently, the agreement to sell in anticipation of filing an application seeking permission to transfer after the lease deeds are renewed, is not capable of being certain and such an agreement is subject to the discretion of the competent authority to grant permission for transfer and much depends upon the conduct of the brother of the original defendant no.3 who is not a party to the suit or the agreement.

80. This Court finds that such an agreement which is dependent on an uncertain event and on conduct of a third party Avijit Lahiri, though he is the co-lessee and brother of the original defendant no.3 to whom 46 2026:JHHC:4034 no direction can be issued , the agreement itself is void when seen in the light of section 29 of the Indian Contract Act, 1872.

81. In the judgment passed by the Hon'ble Supreme Court reported in AIR 1970 SC 546 (Nathulal Vs. Phoolchand), the land stood recorded in the name of Chittarmal, brother of Nathulal and Nathulal agreed to sell the property to Phoolchand and received part payment and also put Phoolchand in possession of the property. Phoolchand agreed to pay balance amount of consideration on or before 07th May 1951. The agreement was reduced in writing and was duly signed by the parties. On the plea that Phoolchand failed to pay the balance consideration, Nathulal rescinded the contract and commenced an action in the court of District Judge seeking a decree for recovery of possession. Phoolchand contended that Nathulal had failed to get the name of Chittarmal deleted from the revenue record according to terms of the agreement and that Phoolchand was ready to pay the balance consideration amount for which he had sent a telegram. The Hon'ble Supreme Court recorded that the trial court and the High Court had held that Phoolchand failed to pay the amount on or before 07.05.1951 and that he did not tender as pleaded by him. The Hon'ble Supreme Court Court considered the terms and conditions of the agreement whereby Nathulal had undertaken to get the name of his brother Chittarmal removed from the revenue records and get his own name entered, but the land continued to be recorded in the name of Chittarmal even till 06th October, 1952 and before that date, Nathulal rescinded the contract.

It was also taken into consideration that as per the State act, the purchaser namely, Phoolchand was not an agriculturist and the land could not be sold to him without the sanction of the State Government. The Hon'ble Supreme Court held that where by statute a property is not transferable without the permission of the authority, an agreement to transfer the property must be deemed subject to implied condition that the transferor will obtain the sanction of the authority concerned. It was held that the purchaser Phoolchand could be called upon to pay the balance of the price only after Nathulal performed his part of the 47 2026:JHHC:4034 contract and that Phoolchand had an outstanding arrangement with his banker to enable him to draw the amount needed by him for payment to Nathulal. The Hon'ble Apex Court also noted that to prove himself ready and willing, a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction and also found that a financial arrangement with the bank was already available from which the purchaser could easily get the money and pay the balance consideration amount.

82. The aforesaid judgement does not apply to the facts and circumstances of this case. As observed by the Hon'ble Supreme Court in the aforesaid judgement, it was the vendor Nathulal who had undertaken to get the name of his brother Chittarmal removed from the revenue records and to get his own name entered, but the proposed vendor did not take any action and it was held that the purchaser could be called upon to pay the balance consideration amount only after the proposed seller performed his part of the contract i.e., to get the name of his brother Chittarmal removed from the revenue records. In the present case, the facts are totally different. Here the Khas Mahal lease was itself not renewed and the plaintiff had undertaken the responsibility to get Khas Mahal lease renewed and incur all expenses and the original defendant no. 3 had simply agreed to sign all papers and do the needful as and when required and even appear before the authorities as and when required. However, the plaintiff has neither pleaded nor proved the steps taken after the agreement and filed the suit seeking specific performance of contract after expiry of about two years by stating that the plaintiff had nothing to do under the agreement. This conduct of the plaintiff also reveals that the plaintiff was not willing to perform his part of the contract. The judgement relied upon by the appellant does not help the appellant in any manner. Point of determination no. (i) Whether the suit of the plaintiff was bad for non-joinder of the co-lessee of the suit lands as a co-defendant?

2026:JHHC:4034

83. The plaintiff is seeking a relief of specific performance of contract to sale dated 17.12.2014 and for execution of Sale-deed and also delivery of peaceful physical actual possession of the land in question to the extent of ½ share of the Defendant No.- 3 with respect to schedule 'A' and 'B' of the plaint to the plaintiff against payment of balance Sale consideration. Admittedly, the khasmahal lease is between the state on one part and the original defendant no.3 and his brother Avijit Singh jointly on the other part. Admittedly, Avijit Singh is neither a party in the suit nor a party to the agreement of sale entered into between the plaintiff and the original defendant no.3 to the extent of ½ share of the total property. The plaintiff has not sought for any partition with respect to the total property but at the same time is seeking physical possession of ½ share without making the brother of the original defendant no.3 a party to the suit.

84. In the judgement passed by the Hon'ble Supreme Court in the case of A. Abdul Rashid Khan v. P.A.K.A. Shahul Hamid, (2000) 10 SCC 636 it has been held that even where any property is held jointly, and once any party to the contract has agreed to sell such joint property by agreement, then, even if the other co-sharer has not joined, at least to the extent of his share, he is bound to execute the sale deed. However, in the absence of the other co-sharer, there could not be any decree of any specified part of the property to be partitioned and possession given. The decree could only be to the extent of transferring the share of the appellants in such property to other such contracting party. Paragraph 14 of the aforesaid judgement is quoted as under: -

"14. Thus, we have no hesitation to hold, even where any property is held jointly, and once any party to the contract has agreed to sell such joint property by agreement, then, even if the other co-sharer has not joined, at least to the extent of his share, he is bound to execute the sale deed. However, in the absence of the other co-sharer, there could not be any decree of any specified part of the property to be partitioned and possession given. The decree could only be to the extent of transferring the share of the appellants in such property to other such contracting party. In the present case, it is not in dispute 49 2026:JHHC:4034 that the appellants have 5/6th share in the property. So, the plaintiff's suit for specific performance to the extent of this 5/6th share was rightly decreed by the High Court which requires no interference."

85. The aforesaid judgement has been followed in the judgement passed in the case of "Syscon Consultants (P) Ltd. Vs. Primella Sanitary Products (P) Ltd." reported in (2016) 10 SCC 353.

86. In view of the aforesaid judgment in A. Abdul Rashid Khan (supra), there is no legal bar in granting relief regarding specific performance of agreement of sale with respect to undivided portion of the property even when the co-sharer of the property has neither joined in the agreement nor joined as a defendant in the suit. However, in the absence of the co-sharer as a party to the suit no decree can be passed for partition/possession of a share in the undivided property.

87. This court is of the considered view that there can be no dispute that generally the suit for specific performance seeking to enforce agreement of sale with respect to ½ share of the undivided portion of the property is maintainable against the party to the agreement even when the co-sharer of the property is neither party to the agreement of sale nor party to the suit.

88. However, in the present case even the renewal of the lease deeds are pending which requires registration upon participation of the original defendant no.3 and his brother Avijit Lahiri and Avijit Lahiri is neither party to the agreement nor party to the suit and unless the leases are renewed and registered which requires participation of Avijit Lahiri ,there is no question of filing application seeking transfer of undivided ½ share of the original defendant no.3 to the plaintiff. In such circumstances Avijit Lahiri was certainly a proper party, if not a necessary party to the suit. The point of determination no.(i) is accordingly answered.

Point of determination no. ( iv ) - Whether the plaintiff was entitled to any relief in the facts and circumstances of this case?

89. Section 22 of Specific Relief Act reads as under:-

2026:JHHC:4034 "22. Power to grant relief for possession, partition, refund of earnest money, etc.--(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure,1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for--

(a) possession, or partition and separate possession, of the property, in addition to such performance; or

(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed:

Provident that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21."

90. Section 22 (1) clearly provides that any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused, but as per sub-section (2), no relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed.

91. In the present case the plaintiff is seeking a relief of possession also with respect to the ½ share of the property jointly owned by the original defendant no.3 and Avijit Lahiri but no such relief seeking partition in terms of section 22 has been prayed and Avijit Lahiri is not even a party to the suit or even to the agreement. Further, the plaintiff having not prayed for any relief seeking refund of the amount claimed to have been paid to the original defendant no.3/his family members, 51 2026:JHHC:4034 partly through cheques and partly through cash as a part of the consideration amount of the property, no such direction of refund can be issued in view of aforesaid section 22 (1) (b) read with subsection (2) of section 22 of the Specific Relief Act, 1963.

92. Accordingly, the plaintiff is not entitled to any other relief once the plaintiff has been found not entitled to relief regarding specific performance of the agreement dated 17.12.2014. Accordingly, the point of determination no.(iv) is also decided against the appellant (plaintiff).

93. In view of the aforesaid findings, this court finds no merits in this appeal which is accordingly dismissed.

94. The office is to prepare decree accordingly.

95. Let this order be communicated to the learned court concerned through 'FAX/email'.

(Anubha Rawat Choudhary, J.) Date of Judgment:13.02.2026 Pankaj Date of Uploading: 13.02.2026 52

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Jharkhand High Court