JUDGMENT

SEN, J. :— This appeal on certificate is directed against the judgment and decree of the Gujarat High Court dated February 1, 1971 reversing those of the Civil Judge, Senior Division, Surendranagar dated January 31, 1961, and decreeing the plaintiffs suit for specific performance.

2. Put very shortly, the essential facts are these. By an agreement in writing (Exh. 26) dated October 19, 1949. the appellant who was the defendant entered into an agreement to purchase two plots of land admeasuring 491 and 1599 square yards situate in Village Dudheraj recorded as Girasdari agricultural land of which he was the tenant @ Rs. 2.50 per square yard from the Girasdar, Rana Mohabat Singh and paid Rs. 1,001/- by way of earnest money in lieu thereof. The agreement stipulated that the vendor Rana Mohabat Singh was to apply for permission from the Collector to convert this agricultural land into village site i.e. for non-agricultural use. The sale-deed was to be executed by Rana Mohabat Singh after he had obtained the requisite permission from the Collector. Within about a month therefrom i.e. on November 14, 1949, the appellant by a contract (Exh. 25) covenanted to sell the same property to the respondents Jani Narottamdas Lallubhai and Thakur Dhirajlal Dhaneshvar who were the plaintiffs @ Rs. 3.75 per square yard. The agreement provided that the vendor i.e. the appellant was to get the land converted into village site at his own expense.

3. In 1950-51, Rana Mohabat Singh applied to the Collector for grant of permission to convert the land into village site but his application was rejected and thereafter he refunded the earnest amount to the appellant. The Saurashtra Land Reforms Act, 1951 came into force w.e.f. September 1, 1951. Under the provisions of the Act, There was an extinguishment of the right and title of Rana Mohabat Singh as the ex-Girasdar of the land and the appellant was recognised to be an occupant thereof under the provisions of the Bombay Land Revenue Code, 1898. On August 13, 1957, the appellant made an application to the revenue authorities for the grant of an occupancy certificate. The Mamlatdar by his order dated February 6, 1958 directed the issue of an occupancy certificate in favour of the appellant on condition of his paying occupancy price in accordance with the provisions of the Saurashtra Land Reforms Act. On that very day i.e. on February 6, 1958, the occupancy certificate was issued to the appellant on such payment being made but it was to come into effect from August 1, 1950. On June 23, 1958, the appellant applied for converting 1000 square yards out of the two plots which prior to 1958 were agricultural land into village site, and on August 26, 1958 the revenue authorities granted such permission. Thereafter, on September 10, 1959 the revenue authorities granted permission for converting the remaining area of land into village site. Thus, by September 10, 1959 the appellant obtained permission for converting both the plots for non-agricultural use. On October 5, 1959 the respondents called upon the appellant to execute a conveyance of the property in accordance with the agreement of sale between the parties and on his failing to comply, commenced the present suit on September 6, 1960.

4. The material terms of the agreement between the parties are to be found in the suit Banakhat (Exh. 25) and they are to the effect :

"You can construct a house or building or a factory or put up a park, garden etc. on this land after getting it converted into village site land. The sale-deed in respect of this land is to be executed after the land has been converted into such use ................. The title of the land is free from any doubt. No one has any right, title or interest therein. If any amount is to be paid either to the Government or to the Darbar in respect of the land, then you are not liable for the same, but this agreement has been entered into with you on the footing that the land is to be considered as