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2018 Supreme(Jhk) 1013
IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAJESH KUMAR, J.
Nayak Lalan Rai - Appellant
Versus
Yogendra Mahto & Ors. - Respondents
S.A. No.165 of 2015
Decided On : 06-07-2018
For the Appellant :Mr. Lakhan Kr. Sahay, Advocate
Headnote:
Specific Relief Act, 1963 – Section 20 – Bihar and Orissa Co-operative Societies Act, 1935 – Section 46 – Chotanagpur Tenancy (Amendment) Act, 1969 – Suit for specific performance – Plaintiff has filed a suit for specific performance of contract on the ground that there was an agreement with the defendant for sale of 11 decimals and 108 Sq. fts of land pertaining to Revisional Survey Plot No. 1822 under Khata No. 153 of village Booty, P.S. Sadar, District-Ranchi for consideration amount of Rs. 25000/-out of which Rs.5000/-has been paid to them as advance on the same date and defendant agreed to execute the sale deed on getting the required permission under Land Ceiling Act although later on it was discovered that no such permission was required – Held, Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. – The Court should meticulously consider all facts and circumstances of the case. – The Court is not bound to grant specific performance merely because it is lawful to do so. – The motive behind the litigation should also enter into the judicial verdict. – The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff The High Court has failed to consider the motive with which Varghese instituted the suit. – It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. – The sheet anchor of the suit by Varghese is the agreement for sale Ex A1. Since Chettiar had waived his rights there under, Varghese as an assignee could not get a better right to enforce that agreement. – He is, therefore, not entitled to a decree for specific performance. – Even, if there is a contract between the parties, the court has to exercise it discretion taking totality of the facts and circumstances. – In the present case as the land is non transferable from backward class to any person outside the class and as such discretion has rightly been exercised by the First Appellate Court by refusing the relief and reversing the decree – Court finds no merit in the present appeal, accordingly the same is hereby dismissed – Appeal Dismissed
1. Heard learned counsel for the appellant.
2. The appellant is plaintiff.
3. Plaintiff has filed a suit for specific performance of contract on the ground that there was an agreement dated 31.08.1987 with the defendant for sale of 11 decimals and 108 Sq. fts of land pertaining to Revisional Survey Plot No. 1822 under Khata No. 153 of village Booty, P.S. Sadar, District-Ranchi for consideration amount of Rs. 25000/-out of which Rs.5000/-has been paid to them as advance on the same date and defendant agreed to execute the sale deed on getting the required permission under Land Ceiling Act although later on it was discovered that no such permission was required.
4. The Trial Court has framed six issues which are quoted herein below:-
i. Is the suit of the plaintiff maintainable against the defendant no.1 & 2 including the defendant no.3 ?
ii. Has the plaintiff got any cause of action as alleged against these defendants?
iii. Whether the suit is maintainable for non-joinder of necessary parties namely Ram Kishore Mahto and Kashinath Mahto both sons of Bikhan Mahto, PS: Sadar, District: Ranchi?
iv. Whether so called agreement executed and obtained by the plaintiff by playing fraud, misrepresentation and coercion?
v. Whether the plaintiff has constructed any house over 4 decimals of land?
vi. To what relief/s the plaintiff is entitled to against these defendants No.1 & 2?
5. All the issues were settled in favour of the plaintiff and accordingly suit has been decreed.
6. Being aggrieved, defendant has filed an appeal being Title Appeal No.12 of 2013. The Appellate Court has framed two points for consideration which are quoted herein below:-
(a) Whether the agreement to sell dated 31.08.1987 between the plaintiff and original defendants 1 & 2 is a valid and legal agreement, which can be enforced by specific performance of it?
(b) Whether the court below has committed any wrong either of fact or of law in decreeing the suit for specific performance of said contract for sale/agreement to sale?
7. Plaintiff has described himself in plaint as Nayak Lalan Rai son of Sri Mahendra Rai by caste Brahmin by faith Hindu, resident of village-Rajpura, PS-Arwal, District-Gaya. Thus, it is admitted position that the plaintiff is Brahmin by Caste and resident of District-Gaya not Ranchi.
8. The present case is transfer of land belonging to the backward class to a non backward class.
9. Section 46 of the C.N.T. Act, which is relevant provision, is quoted hereunder:
“46. Restrictions on transfer of their rights by raiyats. – (1) No transfer by a raiyat of his right in his holding or any portion thereof -
(a) by mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or
(b) by sale, gift or any other contract or agreement, shall be valid to any extent :
Provided that a raiyat may enter into a ‘bhugut bundha’ mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (B.& O. Act VI of 1935) for any period not exceeding fifteen years :
Provided further that –
(a) an occupancy-raiyat who is a member of the Scheduled Tribes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to another person who is a member of the Scheduled Tribes and who is a resident within the local limits of the area of the police-station within which the holding is situate;
(b) an occupancy-raiyat who is a member of the Scheduled Castes or Backward Classes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale exchange, gift, will or lease to another person who is a member of the Scheduled Castes or, as the case may be, Backward Classes and who is a resident within the local limits of the district within which t
