J U D G M E N T

Leave granted.

Being aggrieved by the judgment and decree of the High Court of Judicature at Bombay, Aurangabad Bench dated 17.12.2018 in Second Appeal No.118/2018, the plaintiff in the original suit has preferred this appeal.

For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court.

The appellant-plaintiff and the respondent-defendant entered into an agreement to sell dated 31.07.2001 under which, the defendant agreed to sell his land of 80R situated at Block No.41/1, Mandve (Bk), Tq. Sangamner to the plaintiff for a total consideration of Rs.2,25,000/-. An advance amount of Rs.1,55,000/-

Signature Not Verified Digitally signed by Nisha Khulbey Date: w202a4.0s2.20 paid by the plaintiff to the defendant on the said date.

16:51:03 IST Reason:

Thereafter possession was stated to have been given in the year

2003 by the defendant to the plaintiff. On 10.01.2003, the plaintiff paid an additional consideration of Rs.65,000/- and thus out of a total consideration of Rs.2,25,000/-, an amount of Rs.2,20,000/- was paid. Since the defendant did not perform his part of the contract to execute the sale deed, the plaintiff filed Special Civil Suit no.11 of 2005 before the concerned trial Court seeking the decree for specific performance of the agreement to sell and in the alternative, for refund of the advance sale consideration / earnest money of Rs.2,20,000/- along with interest @ 6% p.a.

In response to the suit summons and notice issued by the trial Court the defendant appeared and denied the case of the plaintiff by filing his written statement.

The trial court framed the issues for its consideration and ultimately refused the decree of specific performance and granted the alternative relief of refund of Rs.2,20,000/- with interest 6%

p.a.

Being aggrieved by the denial of the decree for specific performance of the agreement to sell, the plaintiff preferred his appeal before the First Appellate Court. The First Appellate Court (Ad-hoc District Judge) affirmed the judgment of the trial Court but increased the rate of interest from 6% to 14% from the date of the decree. He also directed the plaintiff to hand over possession to the defendant.

Being aggrieved, the plaintiff preferred the second appeal, namely, S.A. No.118/2018 before the High Court. The High Court raised the following substantial questions of law:

“Whether a decree for specific performance of land to be transferred from tribal to non-tribal can be granted subject to obtaining permission u/s 36A of Maharashtra Land Revenue Code?”

The High Court considered Section 36A of the Maharashtra Land Revenue Code, 1966 (‘Land Revenue Code’, for short) and observed that such a decree for specific performance could not be granted and thereby, dismissed the second appeal. Hence, this appeal.

We have heard learned counsel for the respective parties.

Learned counsel for the appellant contended that the High Court was not right in interpreting Section 36A of the Land Revenue Code to the effect that there was a total bar for transfer of any land to be made by a tribal to a non-tribal. Such a transfer by way of sale could be made on the basis of the conditions stipulated therein, that is, with the previous sanction of the State Government. That the stage for obtaining a sanction had not arisen in the instant case, inasmuch as the defendant had not come forward to execute the sale deed. In the circumstances, the plaintiff filed a suit seeking specific performance of the agreement to sell. Even after a decree for specific performance is granted by the Court, the plaintiff was required to seek permission under Section 36A of the Land Revenue Code and thereafter execute such a decree. Merely because Section 36A stipulates a pre-condition for sale of land by tribal to a non-tribal, it would not imply that there is a bar to seeking a relief from specific performance of an agreement to sell entered into by a tribal in favour of a non-tribunal. He c