Vendor bears responsibility for obtaining N.A. permission; failure to act on part of vendor invalidates defense against breach claim.

1. This is the plaintiff's appeal against the decree passed by the trial Court dismissing the plaintiff's suit for specific performance of the agreement dt. 20-4-1971 for purchase of the suit land.

2. As will be presently pointed out, the defendant has not a leg to stand upon in the matter of his defence and the learned Judge allowed himself to be swayed by a totally false plea raised by the defendant as regards the responsibility to make application for conversion of the land to N.A. use and has dismissed the plaintiff's suit with minimum justification conceivable.

3. The facts are very simple. The defendant is admittedly the owner of the suit land Survey No. 140, Hissa No. 5B admeasuring 1 H. 65 A. situate at Nashik. On 20-4-1971 he entered into the agreement (Exhibit 36) with the plaintiff for sale of the land to him for the total price of Rs. 22,000/-. On the date of the agreement, admittedly, he had received the earnest money of Rs. 10,000/-. Since the land is an agricultural land, question arose about conversion of the same to N.A. use, question might also have arisen about the Collector's permission under S.63 of the Bombay Tenancy Act on the sale of the land to a non - agriculturist, if the plaintiff was a non - agriculturist. Since the defendant was the owner of the land, in normal circumstances, it would be his responsibility to get the user of the land changed from agricultural to non - agricultural because the plaintiff who had no right, title and interest on the land on the date of the agreement could not have made such an application to the authorities concerned. But it is not unusual that on occasions the purchasers take the responsibility for getting the user converted from the authorities concerned. But normally for such purposes a power of attorney is given by the vendor to the intending purchasers for making such application to the authorities. If this is not done in normal cases the vendor himself makes the application under the Land Revenue Code for the change of user of the land as also under the Tenancy Act for permission to sell the land to a non - agriculturist.
But the point in this case is that as per cl.(4) of the Agreement, Exhibit 36 dt. 20-4-1971 the responsibility of making the application to the Collector for the change of the user of the land from agricultural to the non - agricultural was specifically taken by the defendant upon his shoulder. Even if an application was required to be made under S.63 of the Tenancy Act for sale of the land to the non - agriculturist, the defendant had taken responsibility in that behalf before the authorities upon his shoulder. This can be clearly seen from cl.(6) of the agreement. He also mentioned in the said cl.(6) that over and above the task of making the permission under the law. It is further clear that both Cls.(4) and (6) of the agreement leave no room for doubt that the responsibility of getting the requisite permission from the authority concerned for sale of the land was undertaken by the vendor - defendant himself.
This fact has great bearing upon the question to be decided in this appeal because in his written statement, the defendant has denied this position whereas in his evidence he has gone back even upon that denial and has tried to set out an entirely third case and as will be presently pointed out even that third case is extremely brittle. After entering into the agreement for sale of the land to the plaintiff, it was necessary for the defendant to make the application to the authorities concerned for the N.A. permission and perhaps also for sale of the land to a non - agriculturist under S.63 of the Tenancy