Chattisgarh High Court
Smt. Vinita Rai vs Dr. C. R. Dekate on 5 July, 2024
Neutral Citation
2024:CGHC:24028
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
First Appeal No. 46 of 2017
Judgment Reserved on : 24.6.2024
Judgment Delivered on : 05.7.2024
• Smt. Vinita Rai W/o Manoj Rai, Aged About 44 Years
Caste- Kalar, R/o Narmada Nagar, Bilaspur, Tehsil And
District Bilaspur, Chhattisgarh
---- Appellant /Plaintiff
Versus
1. Dr. C. R. Dekate S/o Late Shri Ramji Dekate, Aged
About 61 Years R/o Budhar, District Shahdol M.P.........
...Defendant No.1
2. State Of Chhattisgarh, Through- Collector, Bilaspur,
Chhattisgarh ................Defendant No. 2
---- Respondents
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For Appellant : Mr. Arvind Shrivastava, Advocate
For Resp. No.1 : Mr. A.K. Yadav, Advocate
For Resp. No.2/State : Mr. Ajay Kumar Pandey, Govt. Adv.
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Hon'ble Shri Naresh Kumar Chandravanshi , Judge
CAV JUDGMENT
1. The appellant/plaintiff has preferred this First Appeal under Section 96 of the Code of Civil Procedure, 1908, (for short 'the CPC'), challenging the judgment and decree dated 25.11.2016 passed by the Additional Judge to the Court of Upper District Judge, Mungeli in Civil Suit No.42A/2015, whereby, the suit filed by the plaintiff/appellant for specific performance of contract has been dismissed and advance amount of Rs.7 lakh, which was paid by the plaintiff to Neutral Citation 2024:CGHC:24028 2 defendant No. 1 has directed to be returned along with 6% interest per annum.
(For the sake of convenience, parties would be referred to as per their status shown and ranking given in the suit before the trial Court.)
2. Facts of the case, as projected by the plaintiff, are that defendant No.1 is the owner of the suit land bearing Khasra No.248, 253, 258/2, 260, 261, 262, 264, 267, 256, 250, 255, 259, 268, 270, 263, 265, 269 area 0.80, 0.80, 0.53, 0.63, 0.80, 0.80, 0.19, 0.34, 0.80, 0.80, 0.80, 0.40, 0.40, 0.40, 0.19, 0.40, 0.40 respectively, total area 9.66 acres situated at Village Bhakridih RNM Pathariya Tahsil and Distt. Mungeli. Defendant No.1 belongs to Scheduled Tribe community. The plaintiff filed a civil suit stating inter alia that she entered into agreement to sale with defendant No.1 in respect of suit land of defendant No.1 for sale consideration of Rs.7,24,000/-, out of that sale consideration, an amount of Rs.7 lakh has been paid to defendant No.1 as advance and written agreement dated 26.11.2005 was executed between the parties. It is further pleaded that defendant No.1 had promised that he will obtain necessary permission from the Collector under Section 165(6) of the CG Land Revenue Code, 1959 (for short 'the Code 1959') as defendant No.1, being a member of Scheduled Tribe, he could not sell his property to a person who is non-tribal and the plaintiff is non-tribal. However, the application filed by Neutral Citation 2024:CGHC:24028 3 defendant No.1 under Section 165(6) of the Code 1959 was rejected by the Additional Collector on the ground that earlier permission had been given to defendant No.1 to sell the said property to one Dr. B. Lalchandani. Since Dr. B Lalchandani had shown his unwillingness to purchase the said suit land and had no objection if the property is sold to someone else, there was no need for defendant No.1 to file application under Section 165(6) of the Code 1959. After execution of the agreement, the plaintiff was always ready and willing to perform his part of the contract and was sending reminder to conclude the proceedings but defendant No.1 failed to execute the registered sale deed in favour of the plaintiff. Hence, the plaintiff filed suit for specific performance of contract or if not then to return the advance amount alongwith interest.
3. The defendant No.1/respondent No.1 herein filed written statement denying the substantive pleading made by the plaintiff against him and has pleaded that though he entered into an agreement to sell the property to Dr. Lalchandani and permission for the same was also received, but subsequently, Dr. Lalchandani shown his inability to purchase the land and also intimated his no objection if the land is sold to someone else. Thereafter he entered into agreement to sell the said property to the plaintiff and to execute the sale deed if permission under Section 165(6) of the Code 1959 is received. Neutral Citation 2024:CGHC:24028 4 It is further contended that advance amount of Rs.7 lakh has not been received from the plaintiff, rather at the behest of the plaintiff, he mentioned maximum sale price of Rs.7 lakh in the application filed under Section 165(6) of the Code 1959 in order to get the permission from the Additional Collector. But the application under Section 165(6) of the Code 1959 has been rejected by the Additional Collector with an observation that even in future no such permission be granted to defendant No.1 to sell the disputed property. Since no permission was granted and no advance amount was paid by the plaintiff, the agreement between the parties comes to an end. Subsequently, due to misleading by other people, the plaintiff has filed civil suit claiming for return of Rs.7 lakh allegedly paid as advance by the plaintiff to defendant No.1 . The agreement dated 26.11.2005 is illegal and the suit for specific performance is not maintainable as in absence of permission, the suit property cannot be sold, hence, the suit may be dismissed.
4. Based on the above facts, learned trial Court framed four issues, recorded evidence of both the parties and vide impugned judgment and decree dated 25.11.2016 partly allowed the suit filed by the plaintiff as relief for specific performance of the contract was dismissed, but defendant No.1 was directed to return the advance amount of Rs.7 lakh Neutral Citation 2024:CGHC:24028 5 to the plaintiff with interest. Being aggrieved by the aforesaid judgment and decree, the plaintiff has preferred instant appeal.
5. Learned counsel for the appellant/plaintiff submits that the trial Court has held that the agreement to sale in respect of suit land was executed between the parties, the plaintiff has also paid Rs. 7 lakh as advance to defendant No.1, the plaintiff was also ready and willing to perform her part of contract, but, the learned trial Court declined to grant decree for specific performance of contract and granted relief only for refund of advance amount because Additional Collector, Bilaspur has not granted permission to defendant No.1 to sell the suit land to the plaintiff. It is further submitted that vide Order dated 15.02.2006 (Ex-P/5), the Additional Collector, Bilaspur has declined to grant permission to defendant No.1 to sell the suit land only because earlier he had sought permission to sell the suit land to Dr. Lalchandani, which had not been disclosed by defendant, therefore, the Additional Collector declined to grant permission to sell the land. Thus, the Additional Collector has not considered the application of defendant on merits, rather on trivial issue it has been rejected. It is further submitted that not granting permission to sell the land by competent authority, i.e. the Additional Collector, does not preclude the Court to grant decree to execute registered sale deed of the suit land as defendant No.1 may file fresh application seeking Neutral Citation 2024:CGHC:24028 6 permission by disclosing all the facts, therefore, he submits that the trial Court ought to have granted decree to execute registered sale deed in respect of suit land in favour of the plaintiff. In this regard, he placed reliance in the matter of Baba Saheb Dhonbiba Kute vs. Radhu Vithoba Barde, (2024) 4 SCC 310 and Rameshwarlal vs. Dattatraya and Ors. 2010 (4) MPHT 352. It is prayed by the learned counsel for the appellant that the appeal may be allowed and the decree of specific performance may be granted to the plaintiff by setting aside impugned judgment and decree
6. Per contra, learned counsel appearing for respondent No.1/ defendant No.1 submits that earlier defendant No.1 had sought permission to sell the suit land to Dr. Lalchandani, which was granted by Additional Collector, but Dr. Lalchandani refused to get executed the sale deed in his favour thereafter, the defendant No.1 entered into agreement to sell the suit land to the plaintiff. It is further submitted that the aforesaid facts were revealed to the plaintiff while executing the agreement to sale (Ex-P/1). It is further submitted that as per the aforesaid documents, there was specific condition that since defendant No.1 belongs to Scheduled Tribe community, therefore, after getting permission from the Collector, he will execute sale deed and receive remaining sale consideration. In compliance of aforesaid condition, defendant No.1 had moved application Neutral Citation 2024:CGHC:24028 7 under Section 165(6) of the Code 1959 seeking permission to execute sale deed in favour of the plaintiff before the concerned revenue authority/Collector, but the concerned authority i.e. the Additional Collector, Bilaspur vide Order dated 15.02.2006 (Ex-P/5) declined to grant permission to the defendant . Thus, since the defendant was not granted permission to sell the suit land to the plaintiff, therefore, he could not execute the sale deed in favour of the plaintiff and on this count, the learned trial Court has declined to grant decree in favour of the plaintiff in respect of execution of sale deed rather only refund of advance amount has been passed which is as per the evidence and the law applicable to the case. Therefore, it is prayed that appeal may be dismissed.
7. Learned counsel for the State/defendant No.2 submits that State is a formal party in this case.
8. I have heard learned counsel appearing for the parties and perused the material placed on record.
9. In the instant case, the trial Court has held proved the fact that defendant No. 1 had entered into an agreement to sell in respect of suit land with the plaintiff and in this regard agreement to sell (Ex.P-1) was executed by him. It has also been proved that in furtherance of aforesaid agreement to sell, defendant No. 1 had received Rs.7,00,000/- from the plaintiff as advance amount against the sale consideration. It has also Neutral Citation 2024:CGHC:24028 8 been held proved by learned trial Court that the plaintiff is ready & willing to perform his part of contract. These findings have not been challenged by defendant No. 1/ respondent No. 1, therefore, aforesaid findings have attained finality.
10. Learned trial Court declined to grant decree of specific performance of the contract to the plaintiff because defendant No. 1 belongs to "Gond" i.e. Scheduled Tribe category / community and plaintiff is a non-tribal. Defendant No. 1 filed an application seeking permission under Section 165 (6) of the Code, 1959 from the concerned revenue authority to sell the suit land to the plaintiff, as permission is necessary under aforesaid provision, which has been rejected vide order dated 15.02.2016 (Ex.P-5) by the Revenue Authority / Additional Collector, Bilaspur, as such, defendant No. 1 is unable to execute registered sale deed in favour of the plaintiff.
11. At this stage, it would be appropriate to notice the provisions contained in Section 165 (1) &(6) of the Code, 1959, which reads as under :-
"165. Rights of Transfer. - (1) Subject to the other provisions of this section and the provision of Section 168 a Bhumiswami may transfer any interest in his land xxx xxx xxx xxx xxx xxx xxx xxx xxx Neutral Citation 2024:CGHC:24028 9 (6) Notwithstanding anything contained in sub-section (1) the right of Bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe by the State Government by a notification in that behalf, for the whole or part of the area to which this Code applies shall -
(i) in such areas as are predominately inhabited by aboriginal tribes and from such date as the State Government may, by notification, specify, not be transferred nor it shall be transferable either by way of sale or otherwise or as a consequence of transaction of loan to a person not belonging to such tribe in the area specified in the notification;
(ii) in areas other than those specified in the notification under clause ( i ), not to be transferred or be transferable either by way of sale or otherwise or as a consequence of transaction of loan to a person not belonging to such tribe without the permission of a Revenue Officer not below the rank of Collector, given for reasons to be recorded in writing.
Provided that the provision of this sub-
section shall not be applicable to the land acquired under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013."
Neutral Citation 2024:CGHC:24028 10
12. Thus, the provisions contained in sub-Section 6 (ii) of Section 165 of the Code clearly stipulates that right of Bhumiswami belonging to aboriginal Tribe, who comes in purview of aforesaid provision, shall be transferred only after permission of Revenue Officer not below the rank of Collector.
13. In the instant case, it is not in dispute that defendant No. 1/Vendor belongs to "Gond" Scheduled Tribe category and the plaintiff belongs to non-tribal category, rather she belongs to OBC category as per agreement to sell (Ex.P-1). There was specific condition mentioned in the agreement that since defendant No. 1 belonged to "Gond" i.e. Scheduled Tribe community, hence, prior to selling of suit land, obtaining permission from the concerned Collector is necessary. The defendant No. 1 has also agreed that after obtaining permission, he will execute the registered sale-deed and receive remaining sale consideration. In furtherance of aforesaid condition, document (Ex. P-5) shows that defendant No. 1 had filed an application seeking permission to sell the suit land to the plaintiff on 07.01.2006, to which Revenue Case No. 34/A-21/0506 was registered by concerned revenue authority i.e. Additional Collector, Bilaspur, but that application was rejected by Additional Collector, Bilaspur vide order dated 15.02.2006 (Ex.P-5). Therefore, counsel for respondent No. 1/defendant No. 1 submits that since application filed by Neutral Citation 2024:CGHC:24028 11 defendant No. 1, seeking permission to sell the suit land to the plaintiff was rejected by concerned revenue authority, hence, he could not execute the sale deed in favour of plaintiff in respect of the suit land. Whereas, learned counsel for plaintiff / appellant submits that, since application has not been rejected on merits, therefore, defendant No. 1 may be directed by this Court to file fresh application seeking permission and conditional decree may be granted.
14. Hon'ble High Court of Madhya Pradesh, Jabalpur in the case of Rameshwarlal Vs. Dattatraya and others1, while considering similar issues, after considering various judgments of Supreme Court and High Courts, has observed in paragraph 35 as under:-
"35. It is, therefore, clear on an analysis of the principles laid down by the Supreme Court and various High Court in the matter of granting decree for specific performance in cases where consent, sanction or permission of any officer, authority or Government is required. The principle laid down is that if a condition is laid down that the transferor is bound to do everything to give effect to the contract, specific performance can be obtained with a direction to the transferor to obtain the required consent or permission. The general principle is that until and unless the 1 2010 SCC OnLine MP 2 Neutral Citation 2024:CGHC:24028 12 transaction itself is unlawful, it may be enforced directing the defendant to take such steps as are necessary for effecting the contract. Reference may be made to a judgment of the Andhra Pradesh High Court, in the case of Somisetti Ramanaiah v. The District Supply Officer, Chittoor, AIR 1979 AP 19. The principle laid down by the Privy Council in the case of Motilal (supra), and by the Supreme Court in the cases of Mrs. Chandnee Widya (supra) and Rojasara Ramjibhai Dahyabhai (supra), all together if considered would indicate that the principle laid down is that if the vendor has agreed to sell property, which can be transfered only with the sanction of some Government Authority, the Court has jurisdiction to order the vendor to apply to the authority and if sanction is not forthcoming, to convey to the purchaser the same and on the ground that the sanction is not available, decree for specific performance cannot be refused. It is held in most of the cases that when permission from some authority is required to be obtained, obtaining of the same is not a condition precedent for grant of decree for specific performance, if after grant of decree permission can be obtained. The conditional decree for specific performance can be granted making it subject to obtaining permission or exemption as contemplated in the statute. It is held that a relief can be moulded to such an effect that Neutral Citation 2024:CGHC:24028 13 defendant is directed to obtain permission or consent. It has been the consistent view that on the ground of non-availability of consent or permission a defendant cannot avoid such an agreement. There are series of judgments in this regard by various High Courts, which have followed the principles laid down in the case of Mrs. Chandnee Widya (supra); Motilal (supra), and some of the judgmens in this regard are Khan Bahadur C.G. Taraporwala v. Kazitin Ali Pasha, AIR 1965 AP 361; Indra Prasad Saxena v. Chaman Lal Malik, AIR 1994 Allahabad 105; and Shri Rajesh Agrawal v. Shri Balbir Singh, AIR 1994 Delhi 345."
15. Similar view has also been taken by Hon'ble Supreme Court in the matter of Baba Saheb Dhonbiba Kute (supra), in which, Hon'ble Supreme Court has relied upon its earlier decision in the case of Nathulal v. Phoolchand2, wherein it was held that when an agreement to sale is executed but it cannot be specifically performed without permission or sanction of any authority, the suit can be decreed and decree for specific performance can be granted subject to obtaining such permission / sanction from the competent authority.
16. Thus, the law is well settled that if vendor agrees to sell the property, which can be transferred only with the sanction of some Government Authority, the Court has jurisdiction to order 2 (1969) 3 SCC 120 Neutral Citation 2024:CGHC:24028 14 vendor to apply to such authority within a specified period and if sanction is forthcoming to convey the property to the purchaser within a certain time. Accordingly, in such a situation, a conditional decree for specific performance can be granted making it subject to obtaining permission as contemplated in the statute. But, in instant case, it is proved that in compliance of terms of agreement to sell (Ex.P-1), with regard to obtaining permission from concerned Collector, defendant No. 1 had filed an application, but that application has been rejected vide order dated 15.02.2006 (Ex.P-5). Thus, the facts of the instant case is not similar to the above- cited case laws referred by the plaintiff, as in case in hand, application for seeking permission to sell the suit land to the plaintiff has already been rejected, therefore, conditional decree cannot be granted in this case. In such a situation, executing sale-deed by defendant No. 1 would be violative of provisions contained in Section 165 (ii) of the Code, 1959, therefore, the law laid down in the afore-cited cases, is not found to be helpful to the plaintiff in facts situation of the instant case.
17. During course of submission, learned counsel appearing for the appellant/plaintiff would submit that application seeking permission to sell the suit land filed by defendant No. 1 has not been decided by the Additional Collector on merits, rather it Neutral Citation 2024:CGHC:24028 15 has been rejected on trivial ground, therefore, defendant No. 1 may be directed to file fresh application, but this Court does not incline to accept aforesaid submission, as application filed by defendant No. 1 has already been rejected vide Ex.P-5 and merit of the rejection of that application does not fall in the domain of consideration of this Court.
18. From perusal of agreement to sell (Ex.P-1), it is found that the reasons which required defendant No. 1 to sell the suit land is mentioned in the agreement as under :-
"eS fuEu dkj.kksa ls Jhefr fouhrk jk; ds ikl mDr of.kZr Hkw[k.M dks fodz; dj jgk gwWS % -
1 - NRrhlx<+ jkT; foHkktu ds ckn jkT; dh leL;k A 2 - ;g fd esjs fuokl LFkku ls ;g Hkwfe dh nwjh cgqr vf/kd gS ] ftlds dkj.k ns[kjs[k laHko ugha gks ik jgk gS A 3- ;g fd Hkwfe vflfpar gS] ftlls ;g dbZ o"kksZ ls catj ,oe~ iM+rh gks x;h gS] blesa [ksrh laHko ugha gks ik jgh gS A 4- ;g fd bl catj iM+rh Hkwfe dh fcdzh ls eq>s Ik;kZIr jkf'k izkIr gks jgh gS A 5- ;g fd Hkwfe fcdzh ls izkIr jkf'k dks eSa vius Dyhfud ds foLrkj ,oa edku cuokusa esa gq, [kpZ dh Hkjik;h dz:Wxk lkFk gh cq<+kj ds ikl gh dwf"k dk;Z ds fy, mi;qDr Hkwfe dk dz; d:Wx a k A"
19. As has been observed in preceding paragraphs that, in furtherance of terms of aforesaid agreement, defendant No. 1 had filed application for seeking permission, to which revenue proceeding dated 07.01.2006 was initiated by Additional Collector, Bilaspur. This fact shows his positive conduct Neutral Citation 2024:CGHC:24028 16 towards compliance of terms of agreement. As per Ex. P-5, on 15.02.2006, in presence of defendant No. 1 and plaintiff, application of defendant No. 1 was rejected and permission to sell the suit land was declined by the Additional Collector, despite that instant suit for specific performance of contract was filed by the appellant / plaintiff on 25.11.2008 i.e. after about more than two year & nine month. This fact shows the indifference of the plaintiff towards specific performance of contract.
20. It is settled principle of law that granting decree of specific performance is not obligatory upon the court, rather granting such decree is discretionary, although the discretion has to be exercised carefully with circumspection, on sound and reasonable grounds. Recently, Hon'ble Supreme Court in the case of Major General Darshan Singh (D) by Lrs. & Anr. Vs. Brijbhushan Chaudary (D) by Lrs.3, has observed that, "the grant of decree for specific performance is always discretionary under Section 20 of the Specific Relief Act, 1963". As per sub- section (2) (b), grant of decree of specific performance of contract can be declined, if the performance of contract would cause some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff.
3 Civil Appeal No. 9360 of 2013, decided on 01.03.2024 Neutral Citation 2024:CGHC:24028 17
21. In instant case, agreement to sell in respect of suit land was executed between the parties on 26.11.2005, thereafter, defendant No. 1 / vendor fairly submitted application for permission, which was declined to grant vide order dated 15.02.2006 in presence of plaintiff, despite that plaintiff filed instant civil suit after lapse of more than 2 year & 9 month. As of now, about 19 years have been passed, rate of property has been escalated remarkably and more particularly after such long period, it cannot be said that the reasons, which required the vendor to sell the suit land are still exists. Therefore, in such situation, directing vendor to execute sale deed may create hardship to him, rather it can be fairly said, that its non- performance would not create any hardship to the plaintiff, if advance amount is refunded to him, as has been prayed by plaintiff also. On this count also, impugned judgment is not found to be interfered with.
22. In view of the foregoing discussion, I do not find any perversity or illegality in the impugned judgment & decree dated 25th November, 2016 passed by learned trial Court declining to grant decree of specific performance of contract to the plaintiff by entitling him to obtain refund of advance amount Rs.7,00,000/- given by him to defendant No. 1. Since, decree of execution of sale deed is not being given to the plaintiff and despite declining permission to sell of suit land vide order Neutral Citation 2024:CGHC:24028 18 dated 15.02.2006 (Ex.-P/5) by Additional Collector, defendant No. 1 did not return advance amount to the plaintiff, therefore, instead of 6% interest on aforesaid amount granted by the trial Court, it would be just & proper to grant 12% interest to the plaintiff on the aforesaid amount from the date of filing of civil suit i.e. 25.11.2008, till its actual payment. Thus, impugned judgment & decree is modified accordingly.
23. Consequently, instant appeal for substantive relief is dismissed, however, interest part on advance amount is modified to the extent indicated hereinabove. No cost (s).
24. A decree be drawn-up accordingly.
Sd/-
(Naresh Kumar Chandravansh) JUDGE Bini/Amit