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2017 Supreme(HP) 362
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sandeep Sharma, J.
Benu Dhar Bhanja – Appellant
Versus
Smt. Dyalo & Others – Respondents
Regular Second Appeal No.415 OF 2006
Decided On : 09-05-2017
For the Appellant :Mr. Saurav Rattan, Advocate
For the Respondents:Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj, Advocate
Headnote:
Specific Performance - Contract - H.P. Tenancy and Land Reforms Act, Indian Contract Act, Transfer of Property Act - Section 118 of H.P. Tenancy and Land Reforms Act, Section 53A of the Transfer of Property Act - The court discussed the agreement for the sale of land and the requirement of permission under Section 118 of the H.P. Tenancy and Land Reforms Act. It also considered the indivisibility of the contract and the possession of the property by the co-contractees. The court upheld the judgment and decree passed by both the trial court and the first appellate court.
Fact of the Case:
The plaintiff filed a suit for specific performance of a contract for the sale of land. The defendants refuted the claim on the grounds of maintainability, locus standi, cause of action, and estoppel. They also alleged that the suit was not maintainable under the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act and was barred by limitation. The trial court partly decreed the suit for recovery of a specific amount against the defendants. The first appellate court dismissed the appeal and affirmed the judgment and decree passed by the trial court. The plaintiff then filed a Regular Second Appeal challenging the judgment and decree passed by the first appellate court.
Finding of the Court:
The court found that the agreement for the sale of land required permission under Section 118 of the H.P. Tenancy and Land Reforms Act, and since the appellant and other co-contractees were non-agriculturists, the sale deed could not be executed without such permission. The court also found that the contract was indivisible and that the plaintiff could not seek specific performance if the other co-contractees did not want that relief. Additionally, the court found that the plaintiff failed to prove his possession of the property after the execution of the agreement.
Issues: The issues framed by the trial court included the existence of the agreement, the readiness and willingness of the plaintiff to perform the agreement, the maintainability of the suit, estoppel, the applicability of Section 118 of the H.P. Tenancy and Land Reforms Act, limitation, and the specific performance of the agreement.
Ratio Decidendi: The court held that the agreement for the sale of land required permission under Section 118 of the H.P. Tenancy and Land Reforms Act, and since the contract was indivisible, the plaintiff could not seek specific performance if the other co-contractees did not want that relief. The court also found that the plaintiff failed to prove his possession of the property after the execution of the agreement.
Final Decision: The court upheld the judgment and decree passed by both the trial court and the first appellate court, and dismissed the appeal.
Sandeep Sharma, J.
1. This Regular Second Appeal filed under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 29.06.2006, passed by learned District Judge, Solan, District Solan, in Civil Appeal No.9- NL/13 of 2005/03, affirming the judgment and decree dated 29.10.2002, passed by learned Sub Judge, Nalagarh, District Solan, where by suit of the plaintiff was partly decreed.
2. Briefly stated facts, as emerged from the record, are that the appellant-plaintiff (hereinafter referred to as the ‘plaintiff’) filed a suit for specific performance of contract dated 29.2.1988, directing respondents-defendants No.1 to 6 (here in after referred to as defendants No.1 to 6) to execute sale deed of land measuring 1 bigha and in the alternative 1/3rd share i.e. 7 biswas of the suit land, description whereof has been given in the head note of the plaint (hereinafter referred to as the ‘suit land’). It is averred by the plaintiff that on 29.2.1988 Partap Singh, predecessor-in-interest of defendants No.1 to 6, entered into an agreement for sale of 1 Bigha of land for a sum of Rs.40,000/- with the plaintiff and defendants No.7 and 8 and handed over the possession to them on the same day on receipt of full sale consideration. It is averred by the plaintiff that plaintiff and defendants No.7 and 8 effected the partition amongst themselves and subsequently plaintiff raised the construction over his share measuring 7 biswas with the consent of Partap Singh and defendants No.7 and 8. It is the claim of the plaintiff that the said Partap Singh conspired with defendants No.8 and wife of defendant No.7. It is further averred in the plaint that the plaintiff, on coming to know about it, approached Partap Singh for execution of the sale deed, but, Partap Singh, delayed the execution of the sale deed till his death. It is also averred by the plaintiff that Partap Singh, during his life time and after his death his legal representatives, is/are bound to obtain the requisite permission of the State Government of Himachal Pradesh and to execute the sale deed in favour of the plaintiff, pursuant to the agreement dated 29.2.1988. In this background, the plaintiff filed a suit for specific performance of contract and for prohibitory and mandatory injunction and in the alternative for possession against the defendants.
3. Defendants No.1 to 6, by way of filing written statement, refuted the claim of the plaintiff on the ground of maintainability, locus standi, cause of action and estoppel. It is alleged by the defendants that the suit is not maintainable under the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act and Rules framed there under as well as the same is also hit by the provisions of Section 23 of the Indian Contract Act and barred by limitation. On merits, it is alleged by the defendants that the plaintiff is not Himachali bonafide and is non-agriculturist in the State of Himachal Pradesh, there fore, the agreement is hit by Section 118 of the H.P. Tenancy and Land Reforms Act and that the same stood frustrated on account of want of permission of the State Government. It is specifically denied that the possession was delivered to the plaintiff or that the plaintiff had raised any construction. It is averred by the defendants that the agreement is indivisible as the same has been rescinded by other co-owners i.e. defendants No.7 and 8, therefore, the same has become unenforceable. In the aforesaid background, the defendants sought dismissal of the suit filed by the plaintiff.
4. On the pleadings of the parties, the learned trial Court framed the following issues for determination:-
“1. Whether the plaintiff had entered into agreement dated 29.2.1988 with Shri Partap Singh? OPP.
2. Whether the plaintiff is ready and willing to perform agreement? OPP.
3. Whether this suit is not maintainable? OPD.
4. Whether the plaintiff is estopped to file the present suit on account of his act, conduct and
