Specific performance of a contract for the sale of leasehold property cannot be decreed if the consent of the lessor is required and the lessor refuses to give his consent.

NARASIMHAM, C. J.

( 1 ) THIS is an appeal by defendants 1 and 2 against the judgment of the Second additional Subordinate Judge, Cuttack, decreeing the plaintiff's suit for specific performance.

( 2 ) THE property involved in this litigation consists of valuable house property in the heart of Cuttack town which originally belonged to defendant No. 1 Shri Nikunja kishore Das. The plaintiff alleged that on 14-8-1957 defendant No. 1 entered into a binding contract with him to sell the property for Rs. 38,000/- but as the Khasmahal is the landlord of the site, it was further agreed between the parties that a deed of contract would also be executed and duly registered, by defendant No. 1 with a view to facilitate the obtaining of permission from the Khasmahal for the transfer of the property in favour of the plaintiff.

( 3 ) BUT according to the plaintiff the agreement, between the parties that a deed of contract would be executed later on did not in any way defraet from the finality of the contract entered into between the parties on 14-8-1957. In pursuance of the contract, stamp paper for Rs. 1. 8. 0, was purchased and the help of the Advocate for defendant No. 1 named Sri S. N. Dasgupta, P. W. 4 was taken, and a deed of agreement was formally scribed on 15-8-1957 on the stamp paper, after preparing 2 draft deeds (Exts 9 and 10 ). Defendant No. 1 then took the stamped deed of agreement and also received a sum of Rs. 100. 00 from the plaintiff saying that he would obtain the written consent of his divided brothers (defdts. 4 and 5) to the sale of the property. Subsequently defendant No. 1 was said to have resiled from the contract and to have entered into a binding agreement with the defendants 2. and 3 for the sale of the same property to them for Rs. 40,000/ -. This contract between defendant I on the one hand and the defendants 2 and 3 was finalised on 22-8-57 and registered on 23-8-1957 and a sum of Rs. 10,000/- was also paid to defendant No. I in the presence of the Sub-Registrar. On coming to know about this the plaintiff sent a telegram to defendants 2 and 3 (Ex. 18) on 22-8-57 intimating to them about the prior contract. The latter, on receipt of the same sent a counter telegram (Ex. 2/3) denying knowledge of the existence of a prior contract with the plaintiff. The plaintiff also gave a lawyer's notice to defendant no. 1 on 23-8-1957 calling' upon him to fulfil his part of the contract, but his efforts were of no avail.

( 4 ) THEREAFTER, defendant No. 1 on 24-8-1957 applied to the Khasmahal Officer cuttack (See Ext. R) for permission to sell the property to defendants 2 and 3 for rs. 40,0007. The Khasmahal Officer started a Miscellaneous Case No. 201 of 1957-1958 on the basis of this application, and got the usual notices published. The plaintiff then filed an objection on 8-9-57 (Ex. R. I) before the said officer pointing out the earlier contract between him and deft, 1 and requesting him to refuse permission to defendant No. 1 to sell the property to defendants 2 and 3 and to grant permission to sell the property to himself (plaintiff ). On 13-9-1957 the Khasmahal Officer heard both parties (Ext. 8) and passed an order giving permission to defendant No. 1 to sell the property to defendants 2 and 3. As regards the objection raised by the plaintiff, his order was to the following effect :

"the applicant wants to transfer the entire holding. The objector objects on the ground that the has entered into a contract with the applicant to purchase the property for Rs. 38,000/ -. The applicant wants to sell the property to one Golabrai and Madumal for Rs. 4o,000/- The proposed transferee, along with the objector, were co- sharer tenants, before the transfer of the holding. The applicant states that he has taken Rs. 10,000/-in advance from the proposed transferee and has contracted to sell the property to him. It is beyond the jurisdiction to decide breach of con- tract. It is also beyond the competence of this Court to compe