JUDGMENT :

J.C. DOSHI, J.

1. The instant first appeal under Section 96 of the Code of Civil Procedure, 1908 (hereafter referred to as ‘the Code’) at the behest of original defendant, challenges the judgment and decree dated 16.03.1999 passed by the 4^th Joint Civil Judge, Senior Division, Rajkot (trial Court, for short) in Special Civil Suit No.301 of 1991, by which the plaintiff’s suit was decreed.

2. Plaintiff’s suit for specific performance of the contract (Exhibit-122) was decreed along with the consequential relief of possession of the land, permanent injunction and cost and the appellant herein was ordered to perform his part of the contract.

2.1 The operative order of the impugned judgment and decree reads as under:-

“The plaintiffs' suit is hereby allowed and decreed for specific performance of the contract at Ex. 122, possession of the land. the permanent injunction and costs of the suit, as prayed for in para 14 of the plaint. Accordingly. the defendant is hereby ordered to perform his part in respect of the essential terms of the contract, Ex. 122 and for that purpose, he shall apply before the concerned authorities for obtaining necessary permission or certificate as discussed in this judgment, within 2 months from the date of this order. Thereafter, if necessary permission/clearance is granted, then the defendant shall execute the sale-deed on payment of balance consideration by the plaintiffs to him. He shall also hand over peaceful and vacant possession of the land to the plaintiffs, after execution of the sale- deed as above. Further, the defendant is hereby restrained permanently from selling the suit land or transferring or assigning the same in any other manner to the person other than the plaintiffs.

The defendant shall bear his own costs and he shall pay costs of the plaintiffs in the suit.

Decree to be drawn accordingly.

Pronounced in open court on this 16th day of March, 1999.”

2.2 For convenience and brevity, parties are referred to as per their status before the trial Court.

3. The facts of the case, in a nutshell, are as under:-

3.1 Plaintiff has filed a suit for the specific performance of the agreement to sale.

3.2 The defendant is the owner of land measuring 2000 sq. yds.s situated in Ward No.7 of the Rajkot Municipal Corporation having FP No.1/284/1442/2 of original plot No.1 in TP scheme No.4 of revenue survey No.373 paiki, 374 paiki and 380 (suit land).

3.3 It is the case of the plaintiff that the competent authority, under the provisions of the Urban Land Ceiling Act, 1976 (hereinafter referred to as the ‘ULC Act’) declared the suit land as within the ceiling limit in the holding of the defendant by order in a case No.3203 of 1976 on 30.03.1991. The defendant, therefore, was a lawful owner of the suit land and was in possession and had the right to dispose of or to deal with it.

3.4 As far as agreement to sale is concerned, it was a case of the plaintiff that the defendant executed an agreement to sell qua the suit land on 15.04.1991 in favor of the plaintiff. After negotiation, the price of the land was fixed at the rate of Rs.950/- per sq. yds., totalling Rs.19,00,000/- for a suit land admeasuring 2000 sq. yds.. Plaintiff paid Rs.5,001/- to the defendant as token at the time of execution of the agreement to sell.

3.5 It was a case of the plaintiff that defendant was required to obtain a permission under Section 26(1) of the ‘ULC Act’ and after obtaining such permission was under obligation to execute the sale deed in favor of the plaintiff as a Karta and Manager of the HUF, either in favor of the plaintiff or any person to be named by the plaintiff within 06 months or after getting cleared all the titles of the land. Time was not the essence of the contract time and amongst the other conditions, it was agreed that the time can be relaxed. Other conditions were also to be performed by the defendant, including obtaining signature of other members of the HUF on the sale deed. The defendant was also required to