Lack of permission under Section 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, is not an impediment in issuing a decree for specific performance of a contract of sale for agricultural land.

1. This appeal is directed against the judgment and order dated 22.11.2012 passed by the Principal District Judge, Gondia in Regular Civil Appeal No. 48 of 2012. The appeal was dismissed. First Appeal arose from judgment and order dated 12.2.2008 passed in Special Civil Suit No. 17 of 2004 delivered by the Civil Judge, Senior Division, Gondia. The trial Court was pleased to decree the suit.

2. The facts which are briefly stated are as under: Defendant owned and possessed agricultural land bearing survey no. 42/2-A, area 1.25 acres and survey no. 41/2-A, area 0.40 acre situated at mouza Fulchur, Tahsil and District Gondia. Defendant entered into an agreement with plaintiffs on 11.8.2003 for sale of suit land for a consideration of Rs. 2,31,000/-. Plaintiffs paid earnest money of Rs. 21,000/- to the defendant and balance consideration was agreed to be paid at the time of execution of sale deed which was to be obtained on or before 31.3.2004. The defendant agreed to to get the suit land measured through TILR, Gondia at the costs of plaintiffs for working out the exact amount of consideration and it was also agreed that if the area of suit land was found less than that was mentioned in 7/12 extract, the consideration @ Rs. 1400/- per decimal would be paid less. Plaintiffs paid measurement charges to the defendant on 11.11.2003. However, defendant failed to get the land measured through TILR. On the request of defendant, plaintiffs paid entire amount of balance consideration to him on defendant undertaking to refund amount proportionate to lesser area, if any, found on measurement of land. Date 25.11.2003 was fixed for execution of sale deed. Plaintiffs purchased stamp papers of Rs. 9000/- and prepared draft sale deed and waited for defendant at the office of Sub-Registrar, Gondia on 25.11.2003. However, defendant failed to come to execute sale deed. The land was then got measured in presence of defendant and others and the area was found tallying with the one stated in 7/12 extract. Thereafter also defendant failed to execute sale deed. Hence, plaintiffs filed suit.

3. Defendant denied suit claim. He denied averments regarding measurement, fixing of dates of execution of sale deed etc. He alleged that agreement in question was bogus and fabricated. Without prejudice to this, defendant claimed that plaintiffs are not agriculturist and they are not entitled to purchase agricultural land in view of bar created by Section 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. Therefore, agreement for sale is not enforceable in law and suit is not tenable. It is further contended that the Civil Court had no jurisdiction to decide the issue as to whether plaintiff is agriculturist or not. It was alternatively contended that the value of suit land was more than Rs. 10 lacs per acre. He prayed for dismissal of suit.

5. The trial Court upon evidence led found the fact proved that the defendant had entered into an agreement with plaintiffs on 11.8.2003 to sell out suit land for consideration of Rs. 2,31,000/-. It further held that the defendant had received Rs. 21,000/- towards earnest money on 11.8.2003. The Trial Court further held that the plaintiffs had kept the sale deed ready and had purchased stamp papers of Rs. 9000/- and that possession of suit land was handed over by defendant to plaintiffs on 11.8.2003. The trial Court held that there was no bar under Section 89 of the Tenancy Act and decreed the suit with costs. The trial Court directed the defendant to execute a registered sale deed in respect of suit land in favour of plaintiffs after receiving the balance amount of consideration of Rs. 2,08,500/- within three months from the date of order. The trial Court further directed that if the defendant failed to execute sale deed as above, plaintiffs would be entitled to get the sale deed executed through the Court.

6. Defendant preferred appeal being Regular Civil Appeal No. 48 of 2012. The 1st Appellate Co