The discretionary nature of specific performance and the influence of legal restrictions under the Tenancy Act and Fragmentation Act on the entitlement to relief.

Admit. Service of notice of admission is waived by Ms.Kruti M.Shah, learned advocate for the respondents.

1. Heard learned advocate Mrs.Ketty A.Mehta for the appellant and Ms.Kruti M.Shah for the respondents. Perused the record and proceedings received from the trial Court, which are called for pursuant to order dated 11.02.2013 passed by this Court (Coram:Hon'ble Mr.Justice Rajesh H.Shukla) with a direction that the notice is issued upon respondents for final disposal of the appeal at admission stage.

2. Pursuant to such direction, on receipt of record and proceedings of trial Court, both the parties have agreed to dispose of the First Appeal at admission stage and, therefore, argued at length.

3. Appellant is the plaintiff and respondents are the defendants before the Trial Court in Special Civil Suit No.355 of 2002, which is dismissed by the impugned judgment and order dated 07.01.2013 passed by Additional Senior Civil Judge, Surat. For the sake of convenience, parties are referred with reference to their nomenclature in the suit.

4. The sum and substance of plaintiff suit's is very well explained in the impugned judgment. The suit is for specific performance of an unregistered agreement to sell dated 21.10.1974. According to such agreement to sell, which is produced on record at Exh.-96, the original defendant No.1 and defendant No.2 had executed such document, confirming that they have received an amount of Rs.2,100/-towards sale price of the suit property. However, since suit land being survey No.570 of Village-Suvali, Talluka-Choryasi, District-Surat was having restrictions to sell because of the size of the land, which was agreed by the defendants to sale to the plaintiff, sale deed was to be executed after getting permission from the Collector to enter into sale transaction of such piece of land. The prohibition was to sell such property is due to restrictions under the Fragmentation Act as well as under Tenancy Act. It is further contended in the plaint that after getting permission under the Fragmentation Act and Tenancy Act, when plaintiff has called upon the defendants to execute the sale deed by submitting a draft sale deed on a valid stamp paper, the defendants have refused to execute the sale deed and, therefore, after such refusal in the year 2001, a suit is filed on 30.08.2002 for Specific Performance of the agreement to sell dated 21.10.1974.

5. The plaintiff has alternatively prayed for an amount of Rs.5,00,000/-(Rupees Five Lac) towards sale price of the suit property as per existing market price on the date of the suit as damages with ancillary relief to restrain the defendants from disturbing the possession and costs of the suit etc.

6. Unfortunately, though the agreement to sell is dated 21.10.1974, and though such date is disclosed in paragraph Nos. 1 & 6 of the plaint, in prayer clause the date of such agreement to sell is stated as on 01.10.1974 with a prayer to pass a decree for execution of such agreement to sale. Thereby, though this may be a typographical and clerical error, technically unless such prayer is not corrected properly, the relief as prayed for in Para-8(1) of this plaint may not be material since there is no agreement to sell dated 01.10.1974 agreeing to sell the property in favour of the plaintiff by the defendants, so far as, the suit property is concerned.

7. The averments in the plaint, thereby pleading in the suit is to the extent of execution of such agreement to sell on 21.10.1974, upon accepting the full sale price and after handing over the possession of the suit property being agricultural land bearing Survey No.570 of Village-Suvali, Talluka-Choryasi, District-Surat defendants have to get the permission for executing sale deed from the competent authority both under the Fragmentation Act and under the Tenancy Act. For the purpose necessary proceedings were initiated, whereby permission under Fragmentation Act was available on 20.06.1999, whereas tenure of the la