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IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
A.D. Mane, J.
Nasrulla Khan Bismilla Khan since deceased through L. Rs..... Appellants.
Versus
Shabuddin s/o Syed Hussain others.... Respondents.
First Appeal No. 53 of 1983, decided on 5-4-1994.
Advocates appeared :
A.N. Ansari, for the appellants.
D.E. Padwale, for R.D. Deshpande, for the respondent No. 1.
SPECIFIC RELIEF ACT, 1963
Section 5-Hyderabad Tenancy and Agricultural Lands Act, 1950, Section 50-B-Civil Procedure Code, 1908, Section 9, Order 14, Rule 2-Ciyn snit-Maintainability of-Whether bar under Section 50-B of Tenancy Act applicable in the circumstances of the case?
Held-Section 9 of the Code of Civil Procedure gives jurisdiction to the courts to try all suits of civil nature excepting those which are expressly or impliedly barred by any other law The plaintiffs suit is essentially a suit for specific performance of contract of sale of land for consideration. There is no dispute that the agreement entered into between the plaintiff and the defendant No.1 was perfectly valid in law. It is not the case of the defendants that the agreement of contract pf sale of land is void under any provisions of the Indian Contract Act. What has been contended is that, because of the provisions contained in. Section 50-B of the Act the suit, as framed for enforcement of contract of sale of land was not tenable.
In this context, it is necessary to refer to Order XIV, Rule 2 of Code of Civil Procedure under Rule 2, the Court may dispose of a case on a preliminary issue, where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may of disposed of on an issue of law only. Issue of law as contemplated under Order 14, Rule 2 relates to (a) the jurisdiction of the Court or (b) a bar to the suit created by any law for the time being in force. The question arises, whether Section 50-B of the Act creates a bar for institution of a suit The answer is plain that it does not create a bar to institution of the suit of the present nature. Therefore trying the suit on preliminary issue Nos. 5 and 6 cannot be said to be proper in law. The learned trial Judge, therefore, has committed apparent error of law in not deciding all the issues in the suit at one time. The restrictions contained in Section 50-B of the Act may be relevant for consideration in event the Court is required to consider whether the decree for specific performance of contract is to be granted or not but by no stretch of imagination it can be said that Section 50-B of the Act would constitute a bar for entertaining the suit for specific performance of contract.
2. The plaintiff filed the suit for specific performance of contract of sale of land Survey No. 83 admeasuring 12 acres 5 gunthas of village Lakhegaon, Tahsil Paithan.
3. It is case of the plaintiff that the defendant No. 1 is the owner of the suit land. There was a long standing litigation between the defendant No. 1 and the defendant No. 8, as the defendant No. 8 was claiming the tenancy in respect of the suit land. Pending that litigation, the possession of the land was restored to the defendant No. 1 and defendant No. 1 put the plaintiff in possession on 26-6-1974 in part performance of the said agreement of sale. The defendant No. 8 filed civil suit against the defendant No. 1 on 10-7-1974 for injunction but he was un-successful. It is, therefore, case of the plaintiff that the agreement of sale was for consideration of Rs. 20,000 and he has paid to defendant No. 1 earnest money from time to time, amounting to Rs. 18,802.90 Ps. Further case of the plaintiff is that the defendant No. 1 colluded with his relations-the defendant Nos. 2 to 7 and also defendant Nos. 8 to 10 in disturbing his possession of the land. The defendant No. 2 filed suit for injunction on 5-12-76 against him. He has also filed several applications one after the another for ad-interim injunction. He was, however, un-successful. The defendants are inter-se related to each others. The defendant No. 1 having failed to execute the sale deed, he has no alternative but to sue for decree for specific performance of contract. The plaintiff also sought injunction for disturbing his possession over the land.
4. The suit was contested mainly by the defendant Nos. 1, 5, 7, 8 and 10. Defendant Nos. 1, 5 and 7 in the first place, denied that there was agreement of sale in favour of the plaintiff in respect of the suit land. Defendant No. 1 stated that the plaitniff has obtained his thumb impression on plain papers when he obtained loan of Rs. 17,000/- and has utilised that papers for preparing agreement for sale. It was stated that the plaintiff has obtained his thumb impression fradulently. There was, therefore, no agreement of sale in respect of the suit land between him and the plaintiff. It was further stated that the land being declared to the defendant No. 1 suit is not maintainable and decree for specific performance of contract cannot be granted. On behalf of defendant Nos. 8 and 10 while adopting the similar contentions about the non-existance of the agreement of sale, it has been stated that the defendant No. 8 is a tenant and is in possession of northern half portion, whereas the defendant No. 1 is also a tenant in possession of southern half portion. It was stated that they are in possession of the land. The plaintiff was, therefore, not entitled to any relief in the suit.
5. The learned trial Judge at Exhibit 60 framed the necessary issues. They read as under:
1. Does the plaintiff prove that there was an agreement of sale of the suit land to him by the defendant No. 1 for a consideration of Rs. 20,000/- on 12th January, 1974?
2. Does he prove that the defendant received the amount from time to time as detailed in para 6 of the plaint towards the sale consideration?
3. Does he prove that he was in possession of the suit land on the date of suit 22nd October, 1977?
4. Does the defendant No. 1 prove that he paid Rs. 1,600/- to the plaintiff?
5. Whether the plaintiff is entitled to claim the relief of specific performance of agreement of sale, against the defendant No. 1 paying Rs. 1,000/- only?
6. Whether the plaintiff is entitled to claim the relief of injunction against all the defendants?
7. Whether the defendant Nos. 1, 5, 7, 8 to 10 are entitled to compensatory costs and if yes, to what amount?
The learned trial Judge, however, did not answer these issues on the evidence adduced by the parties, but acted on a pursues filed at Exhibit 63 on behalf of
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