Bombay High Court
Krushnarao S/O Laxmanrao ... vs Shaligram S/O Bapurao Shrungure R/O ... on 25 August, 2016
Author: R.K. Deshpande
Bench: R.K. Deshpande
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sa273.95.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.273 of 1995
Krushnarao s/o Laxmanrao Shingnad,
Aged about 61 years,
Occupation - Pensioner,
Resident of Umari,
Tq. & Distt. Akola. ... Petitioner
Versus
Shaligram s/o Bapurao Shrungare,
sinde deceased, by his LRs.:
1(a) Sau. Suman wd/o Shaligram
Shrungare,
Aged 48 years,
Occupation - Housewife.
1(b) Sanjay s/o Shaligram Shrungare,
Aged about 34 years,
Occupation - Service.
1(c) Nandu s/o Shaligram Shrungare,
Aged about 32 years,
Occupation - Service.
1(a) to 1(c) are residents of
Revenue Colony, Ratanlal Plot,
Akola, Tah. and Distt. Akola.
1(d) Chitra @ Bali Ganesh @ Ashok
Bargat,
Aged Major,
R/o Gadegaon Road,
Near Tahsil Office,
Old Court, Telhara,
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Tah. Telhara, District Akola. ... Respondents
Shri M.G. Sarda, Advocate for Appellant.
Shri J.B. Gandhi, Advocate for Respondent Nos.1(a) to 1(d).
Coram : R.K. Deshpande, J.
Dated : 25th August, 2016 Oral Judgment :
1. In Special Civil Suit No.102 of 1991, the Trial Court passed a decree for delivery of possession of the suit property based on title against the respondent-defendant and directed refund of an amount of Rs.45,000/- paid by the respondent-defendant to the appellant-plaintiff for purchase of the suit property. Regular Civil Appeal No.311 of 1991 was allowed by the lower Appellate Court on 21-4-1995 and the decree passed by the Trial Court has been set aside and the suit is dismissed. Hence, the original plaintiff is before this Court in this second appeal.
2. On 10-5-1980, an agreement to sell was executed by the plaintiff in favour of the defendant for a total consideration of Rs.45,000/-. The defendant paid the entire amount and the plaintiff also delivered the possession of the suit property to the defendant.::: Uploaded on - 29/08/2016 ::: Downloaded on - 30/08/2016 00:17:12 ::: 3
sa273.95.odt One of the conditions in the agreement was that the plaintiff was required to obtain the permission of the Collector for sale of the suit property within a period of two years, i.e. on or before 1-6-1982. It was further agreed that even if such permission is not obtained up to that date, the defendant shall continue to remain in possession of the suit property, but if the agreement is required to be cancelled, then the plaintiff shall refund the amount of Rs.45,000/- to the defendant, who shall re-deliver the possession of the suit property to the plaintiff.
3. It is the finding recorded by the Courts below that such permission was sought by the plaintiff, but it was rejected by the Collector. It has also come on record that the defendant had applied for grant of such permission, but the said application was also rejected. The Trial Court recorded the findings that the defendant has failed to establish that there was no propriety to obtain the permission from the Government for execution of the sale-deed, and that it has not been proved that the plaintiff has intentionally failed to apply to the Collector for grant of permission within a stipulated period. The lower Appellate Court has reversed both these findings, and it is held that the plaintiff has purposefully failed to obtain the permission from the competent authority within a stipulated time, as was agreed ::: Uploaded on - 29/08/2016 ::: Downloaded on - 30/08/2016 00:17:12 ::: 4 sa273.95.odt between the parties. The lower Appellate Court has also dismissed the suit as barred by the law of limitation, as contained in Article 54 of the Limitation Act.
4. This Court admitted the second appeal on 24-8-1995 on the substantial question of law :
" Whether the Court below was right in relying upon Article 54 and not 65 of the Limitation Act?"
5. After hearing the learned counsels appearing for the parties, it seems that the defendant wanted to raise a plea of protection of his possession over the suit property under Section 53-A of the Transfer of Property Act, 1882 on the basis of the pleadings, so claimed to have been made in the written statement. Hence, the following additional substantial question of law is framed :
" Whether the defendant is entitled to protection of possession under Section 53-A of the Transfer of Property Act, 1882?"
6. Heard the learned counsel appearing for the parties on both ::: Uploaded on - 29/08/2016 ::: Downloaded on - 30/08/2016 00:17:12 ::: 5 sa273.95.odt the questions, which are raised. None of the counsels appearing for the parties have disputed that the contract to sell the suit property entered into between the parties on 10-5-1980, would not be enforceable, if the permission of the Collector is not obtained or granted. It was thus a contingent contract covered by Section 32 of the Indian Contract Act, 1872, which is produced below :
"32. Enforcement of contracts contingent on an event happening.-- Contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened.
If the event becomes impossible, such contracts become void."
It is also not in dispute that the plaintiff and the defendant both applied to the Collector for grant of permission to sell the property, and that has been rejected. It is this factum of rejection of permission which makes the agreement in question unenforceable.
7. The question as to whether the plaintiff has fulfilled all the terms and conditions or has followed the procedure for obtaining the permission from the Collector, would not be of much relevance, for ::: Uploaded on - 29/08/2016 ::: Downloaded on - 30/08/2016 00:17:12 ::: 6 sa273.95.odt the reason that the contract itself provides the consequence of cancellation of agreement and the delivery of possession to the plaintiff. If the contract itself is void and unenforceable in law in terms of Section 31 of the Indian Contract Act, then the defendant would not be entitled to protection under Section 53-A of the Transfer of Property Act. The additional substantial question of law is answered accordingly.
8. Coming to the first substantial question of law regarding limitation, it was not a suit for specific performance of contract filed by the plaintiff, and hence the lower Appellate Court has committed an error of law in holding that it is governed by Article 54 of the Limitation Act. The suit would be governed by Article 65 of the Limitation Act, and the limitation of twelve years specified therein would start running from the date when the possession of the defendant becomes adverse to the plaintiff. It is not the case of the defendant that he became the owner of the property on the basis of adverse possession. At any rate, the suit was filed in the year 1991, i.e. within a period of twelve years from the date of the agreement to sell dated 10-5-1980. Hence, it cannot be said that the suit was barred by the law of limitation. The lower Appellate Court has ::: Uploaded on - 29/08/2016 ::: Downloaded on - 30/08/2016 00:17:12 ::: 7 sa273.95.odt committed an error of law in holding that the suit was governed by Article 54 of the Limitation Act, and hence it being filed beyond the period of three years, was barred by the law of limitation. The substantial question of law is answered accordingly. In view of this, the second appeal needs to be allowed by restoring the decree passed by the Trial Court.
9. In the result, the second appeal is allowed. The judgment and order dated 21-4-1995 passed by the lower Appellate Court in Regular Civil Appeal No.311 of 1991, is hereby quashed and set aside, and the decree dated 30-9-1991 passed by the Trial Court in Special Civil Suit No.102 of 1991 is restored. No order as to costs.
JUDGE.
Lanjewar ::: Uploaded on - 29/08/2016 ::: Downloaded on - 30/08/2016 00:17:12 ::: 8 sa273.95.odt CERTIFICATE "I certify that this Judgment uploaded is a true and correct copy of original signed Judgment."
Uploaded by : P.D. Lanjewar, PS Uploaded on : 29-8-2016 ::: Uploaded on - 29/08/2016 ::: Downloaded on - 30/08/2016 00:17:12 :::