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2014 Supreme(Ori) 852
IN THE HIGH COURT OF ORISSA
D. Dash., J.
HARAMANI DEI - APPELLANT
Versus
KULAMANI MOHANTY - RESPONDENT
First Appeal No. 152 of 1984
Decided On : 13-08-2014
M.M. Basu, Sukanta Ku. Dalai, S.B. Mohapatra, B. Parida and Maheswar Mohanty, for the Appellant; B.K. Mohapatra, Satyajit Patnaik, S. Patnaik, P.K. Parida, Suvashis Pattnaik, S. Mohanty, B. Mohanty and B. Moharana, for the Respondent
The central legal point established in the judgment is the entitlement to possession of leasehold land, the obligations of parties in case of refusal of permission, and the principles governing specific performance of contracts.
Headnote:
lessee - Land Dispute - P and S Act, Section 53(A) of the T.P. Act - [P and S Act, Section 53(A) of the T.P. Act] - The court discussed the agreement for sale of leasehold land, the requirement of permission from the lessor, and the consequences of grant or refusal of permission. The court highlighted the legal principles related to specific performance of contracts, possession of land, and the obligations of the parties in case of refusal of permission. The decision was influenced by the interpretation of the agreement and the legal provisions governing leasehold rights and specific performance of contracts.
Fact of the Case:
The plaintiff, a lessee, entered into an agreement to sell the leased land to the defendant. The lessor refused permission for the sale, leading to a dispute over possession and refund of consideration.
Finding of the Court:
The court found the plaintiff entitled to recover possession of the land and directed the defendant to refund the consideration with interest. The defendant's claim for construction costs and damages was partially allowed.
Issues: The court considered the maintainability of the suit, cause of action, recovery of possession, specific performance of the contract, and the defendant's claims for construction costs and damages.
Ratio Decidendi: The court held that the plaintiff's possession was not protected under Section 53(A) of the T.P. Act due to the defendant's failure to seek specific performance of the contract. The court also affirmed the plaintiff's entitlement to possession and modified the defendant's monetary claim.
Final Decision: The appeal was partly allowed, decreeing the plaintiff's suit for possession and directing the defendant to give up possession of the land. The defendant was also directed to refund the consideration with interest, and the plaintiff was given the option to recover possession through court proceedings if the defendant failed to comply.
JUDGMENT :
D. Dash, J. - The unsuccessful defendant as appellant has preferred this appeal challenging the judgment and decree passed by the learned Subordinate Judge, Bhubaneswar (as it was then) in O.S. No. 289 of 1981 decreeing the suit filed by the respondent as plaintiffs.
2. For the sake of convenience, clarity and to avoid confusion the parties hereinafter have been referred to as they have been arrayed in the Court below.
It is pertinent to state at this juncture that the plaintiff having died during pendency of this appeal his legal representatives has been substituted and they are defending the sustainability of the judgment and decree of the suit in favour of their predecessor-in-interest.
3. Plaintiff's case is that he is the lessee in respect of the suit land, granted by the State Government in the Department of P and S for a period of 99 years and necessary deed to that effect has been executed and registered on 06.02.1970. As the lessee, the plaintiff was delivered with the possession of the said land and thereafter he made some construction over there including digging of a well. The plaintiff being in need of money, entered into an agreement with the defendant on 18.02.1977 for sell of the same together with the existing construction for consideration of Rs. 9,000/-. It is also the case of plaintiff that he received consideration of a sum of Rs. 8,500/- in total on different dates towards advance. Pursuant to the said agreement, the possession of the suit land was also delivered to the defendant. The suit land being a lease hold one, the plaintiff was required to obtain permission from the lessor-State for said sale being stipulated as a condition precedent in the deed of lease. So, the parties agreed that the plaintiff would apply to the lessor for the said permission and after the permission is accorded would execute and register the sale deed in the favour of the defendant on receipt of rest consideration. It is asserted that the plaintiff took required steps by making application before the lessee for according necessary permission to sell the suit land to the defendant. However vide letter dated 15.10.1979, the lessor refused to accord the permission as applied for. Therefore, the agreement remained unenforceable and the plaintiff remained in such a position that he could not complete his part of the contract being obstructed by the said refusal of permission by the lessor. It is further case of the plaintiff that in view of such refusal by the lessor, he had requested the defendant to take back the advance consideration paid by her and to vacate the possession of the suit land. However, the defendant did not pay any heed to it. So, the plaintiff served a notice through his advocate, while simultaneously publishing in the Oriya daily, the Samaj on 12.05.1981. The defendant having not responded to the same in any manner, the suit came to be filed mainly for the reliefs as under:
"(a) decree for direction to the defendant to give up the possession of the suit land after receiving of Rs. 8,500/- for the plaintiff and on her failure to accord permission to deposit the said amount in the Court for recovery to the possession of the suit land through the Court.
4. The defendant filed the written statement and contested the suit. It is her case that after being delivered with the possession of the suit land together with the structure, she had further constructed a building up to roof level, admitting the fact that when up to the foundation level the plaintiff who had completed the work. On this head, she claims to have spent a sum of Rs. 11,000/-. It is her next pleadings that since the plaintiff did not take necessary steps as required, the permission was refused by the lessor. The defendant also asserted that the plaintiff being an advocate's clerk had mischievously inserted said clause that in case of non-accordance of the permission by the lessor, the plaintiff would be under obligation to refund the amount withou
