- (1.) THIS is an appeal by defendant Balwant Singh against the judgment and decree of the learned Additional District Judge, Alwar, whereby he decreed the suit for specific performance of an agreement to sell agricultural land.
(2.) UNDER the provisions of the Rajasthan Land Revenue (Permanent Allotment of Evacuee Agricultural Lands) Rules, 1963, hereinafter described as the Rules, the defendant, who was a non-claiment displaced person was allotted 14 bighas and 8 biswas of agricultural land situated at village Noornagar, tehsil Kishangarh, district Alwar, fully described in para 1 of the plaint. On 17-10 66 the defendant entered into an agreement to sell the said land to the plaintiff at the rate of Rs. 1000 per bigha and received Rs, 500 as earnest money. He also delivered possession of a portion of the land measuring 3 bighas 14 biswas of Khasra No. 256 to the plaintiff and further promised to execute a sale deed and get it registered in favour of the plaintiff on receipt of the residual consideration of money, after obtaining a sanad for the land from the government within 4 months from the date of the agreement. This agreement is Ex. 1 on the record. On the expiry of the period of 4 months, the plaintiff served a notice to the defendant and ultimately brought the suit out of which this appeal arises, for specific performance of the agreement Ex. 1, and claimed, in the alternative, damages to the tune of Rs. 14,800. The plaintiff averred in the plaint that he was all along ready and willing to perform his part of the contract to pay the balance of the consideration money, but the defendant deliberately and malafide did not deposit the instalments due to the Govt. and obtain the sanad with a view to avoid performance of the contract. In his written statement, the defendant denied the agreement all together and further pleaded that he being a non-claimant displaced person had no right to transfer the land without depositing the price of the land and other dues due to the Govt. According to the defendant, the transaction was null and void. On the pleadings of the parties, the learned Additional District Judge, who tried the suit, framed seven issues, but the material issues for the purposes of this appeal are issues Nos. 1 to 4 which run as under: "issues Nos. 1 to 4 (1) Whether on 17-10-66 the defendant entered into an agreement to sell agricultural land comprised in khasra Nos. mentioned in para No. 1 of the plaint @ Rs. 1000 per bigha and did the plaintiff pay Rs. 500 as advance money to the defendants as against the said agreement was executed in favour of the plaintiff and did the defendant agree to perform the contract within four months? (2) Whether in pursuance of the agreement to sell dated 17-10-66 the defendant delivered possession of the land comprised in khasra No. 256 to the plaintiff and is the plaintiff in its possession since that day? (3) Is the defendant a non-claimant displaced person and has no right to transfer allotted land and is the transaction of this nature null and void and is the present suit not maintainable on its basis? (4) In case issue No. 1 is decided in favour of the plaintiff, is the plaintiff entitled to decree for specific performance of the contract?" The learned Additional District Judge on a consideration of the evidence led by the parties found that the defendant did execute the agreement Ex. 1 and that he has also received a sum of Rs. 500 as earnest money and also delivered possession of the land comprised in Khasra No. 256 to the plaintiff on the date of the agreement. Dealing with issues Nos. 3 and 4, the learned Additional District Judge placed reliance on the cases, namely, Mrs. Chandnee Widya Vati vs. Dr. C. L. Katial (1), Ramulu vs. Anan-tharamulu (2) and Syed Jalal vs. Targopal Ram Reddy (3) and held that the agreement was not null and void or forbidden by law. On the above findings, he decreed the suit in the following manner: " The plaintiff's suit for specific performance of the contract dated 17-10-66 for the sale of the agricultural land measuring 14 bighas & 8 biswas mentioned in para 1 of the plaint is decreed and the defendant is directed to pay to the Government of Rajasthan the balance of the instalments of the price of the land together with interest due (if any) and all outstandings of the loans due against him and obtain sanad and a certificate of clearance and produce the same in this court within 2 months from this date and thereafter within 2 months convey the suit agricultural land by executing and getting registered a sale-deed of the said land in favour of the plaintiff. The defendant will further deliver possession of the suit agricultural land to the plaintiff. The plaintiff will deposit in this court the balance amount of Rs. 14,300 of the consideration money within 2 months from today. After the defendant has paid the full instalments of balance of price with interest (if any) and other outstandings of loans to the Government and after he has obtained the sanad and clearance certificate and has produced the same in court within the said time and has further executed and registered the sale deed of the land in favour of the plaintiff, the consideration amount of Rs. 14300 which is to be deposited by the plaintiff as aforesaid in court, shall be paid from out of the court to the defendant. In case the defendant fails to pay to the Government the full price of the land together with interest due (if any) and other outstandings of loans and to obtain the sanad and the clearance certificate and fails to produce the same in court within 2 months from today, the plaintiff will himself be entitled within 2 months thereafter to pay to the Government the said instalments of price along with interest (if any) and other outstandings of loans due against the defendant and to produce a clearance certificate and thereupon the plaintiff shall be entitled to get a sale-deed executed and registered in respect of the suit agricultural land through the court in his favour and he shall further be entitled to the refund of the amount of instalments of price and the amount of the other outstandings of loans with interest (if any) paid by him to the Government on behalf of the defendant from out of the consideration amount of Rs 14300 deposited by him and the remaining balance of the consideration amount only shall be paid to the defendant. If for any reason, the State Government refuses to accept the instalments of price and other outstandings either from the defendant or from the plaintiff and to give a clearance certificate and sanad, the plaintiff is, in the alternative, granted a decree for Rs. 8,640 as compensation and for Rs. 500 for return of advance money, in all for Rs. 9140 against the defendant. The plaintiff will get costs of this suit from the defendant. Decree be prepared accordingly. " Dissatisfied with the aforesaid decree, the defendant has preferred this appeal. I have heard learned counsel for the parties at length and perused the record carefully. As regards execution of the agreement Ex. 1, suffice to say that there exists overwhelming evidence to prove that the agreement Ex. 1 dated 17-10-66 was executed by the defendant and he received Rs. 500 towards the sale-price on the date of the agreement. The learned Additional District Judge has discussed the entire evidence led by the parties on this point. He relied upon the evidence of the plaintiff Rajaram PW 1, Naraindas PW 2, who attested the document, PW 3 Pyarelal PW 3 who typed the agreement, PW 4 Omprakash, Notary before whom the defendant signed the document at E to F and PW 7 Kishorilal who identified the defendant before the Notary and rightly arrived at the conclusion that the agreement Ex. 1 was executed by the defendant. The learned Additional District Judge has also discussed the evidence of the defendant and his witnesses, namely, DW 2 Surjeetsingh, DW 3 Amarsingh, and DW 4 Harnamsingh and rightly found the testimony of these witnesses to be unreliable and false. I therefore in agreement with the learned Additional District Judge hold that the defendant did execute the agreement Ex. 1, receive Rs. 509 as earnest money and deliver possession of the land comprising Khasra No. 256 on 17-10-66. The learned counsel for the appellant though did not concede but, at the same time, did not seriously challenge the correctness of the above finding arrived at by the learned Additional District Judge. The point which has been vehemently argued on behalf of the defendant-appellant is that since there was no completed agreement between the parties, no decree for specific performance of the agreement could be passed. Learned counsel for the appellant pointed out that under Rule 5 of the Rules, an allottee was not entitled to transfer the land till he paid the full price of the land together with interest and all outstanding dues to the government and obtain the sanad under Rule 7 of the Rules. It is further contended that in the present case since the defendant had not admittedly cleared off all the dues due to the government in respect of the suit land, the agreement for sale of the land was inchoate and unenforceable. It was also argued that the agreement cannot be enforced for it is a contract depending upon the payment of all dues to the government by the defendant and since the dues had admittedly not been paid by the defendant, the agreement is incapable of being enforced against him. In support of these arguments, the learned counsel for the appellant has placed reliance on Kali-dassee vs. Nobokumari Dassee (4), Kirpaldas Jiverajmal vs. Manager, Encumbered Estates (5), Ramditta vs. Dhaniram (6) and Jethalal G. Thakkar vs. R. N. Kapur of Bombay (7 ). In my opinion, all these cases are distinguishable on facts and none of them has any bearing to the facts of the present case. Before dealing with the point raised by the learned counsel for the appellant, it is important to read the agreement Ex. 1. It runs as under: ***** It follows from the agreement that the defendant undertook to obtain the sanad within 4. months from the date of the agreement. It is also clear from the agreement that the execution and registration of the sale-deed depended on the defendant's obtaining the sanad and the plaintiff's paying the residual consideration of money. It is again not in dispute that the defendant who was a non-claimant displaced person was allotted land under the Rules. The expression 'non-claimant displaced person' is defined in Clause 2 of the Rules. It means a displaced person who has not got a verified claim and includes a displaced person who had got his claim verified on the basis of rehabilitation grant application grant application filed on or after 8-5. 1961. Rule 3 deals with the scope of the Rules. It runs as under: " R. 3these rules shall govern the permanent allotment of, and accrual of khatedari rights in, agricultural lands situated in the districts of Alwar and Bharatpur that were declared, or are deemed to have been declared, as evacuee property under the Administration of Evacuee Property Act, 1950 (Central Act 31 of 1950) and that were subsequently acquired by the Govt. of India by a notification issued in exercise of powers conferred by sec. 12 of the Displaced Persons (Compensation and Rehabilitation,) Act, 1954 (Central Act 44 of 1954) and that have now been transferred to the Rajasthan Government on payment of an agreed price, for allotment to non-claimant displaced persons, and other persons, hereafter in these rules referred to as "the lands to which these rules apply. " Rule 4 says that no non-claimant displaced person or a displaced person of any other class or any person, in temporary occupation of any land to which these rules apply shall acquire any right, title or interest therein except under and in accordance with the provisions of these rules. R. 5 is important for our purposes. It lays down the terms and conditions of permanent allotment, and for accrual of khatedari rights in favour of an allottee. This rule runs as under: " R. 5the permanent allotment of the lands to which these rules apply shall be subject to the following terms and condition, namely (1) The allottee shall acquire khatedari rights in the land only if he fulfils each and every one of the terms and conditions hereafter specified. (2) The allottee shall pay the price of the land at the rate of rupees one hundred and fifty per standard acre either in one lump sum within one month of the commencement of these rules, or in ten equated yearly instalments, in which case interest at the rate of 7% per annum will have to be paid. (3) In addition to the price of the land, the allottee shall be liable to pay and shall pay on the due date, the assessed land revenue, or rent, and all other rates, cesses and other charges that are imposed, or may in future be imposed by competent authority under any law for the time being in force. (4) All outstanding of loans advanced to the allottee either by the Central Govt. or the State Govt. or any other dues payable by him in respect of the land allotted to him, together with any interest due on any such loan, shall be a first charge on the land and shall, without prejudice to any other rights and remedies of the State Government, be recoverable in the same manner as an arrear of revenue, and no transfer of the land shall be valid unless the amount of the said loan, together with interest, if any, and the said dues have been paid in full (5) So long as the full price of the land together with interest due (if any) and all outstandings of the loans referred to in the preceding clause are not paid up in full, the allottee shall not sell, mortgage or in any other manner transfer or part with the possession of the whole or any part of the land or his interest in the same. (6) In the event of the payment of the price of the land by instalments, if the allottee fails to pay two consecutive instalments, or in any way encumbers or alienates the land or his rights therein, the Tehsildar shall be empowered, after notice to the allottee and the person in occupation, to take over the possession of the land and to recover the price of the land and other outstandings of the Government by sale thereof. (7) All transfers made, or encumbrances created, at any time, in contravention of the provisions of these rules shall be null and void, and if the allottee refuses on being called upon by the Tehsildar, to pay the price of the land as well as the arrears of any loan outstanding against him, or where the non-claimant displaced person has left the land in the possession of some other person and is not traceable, it shall be competent for the Tehsildar to cancel the allotment and take over the possession of the land and where necessary eject the person in possession in accordance with the provisions of sec. 91 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of 1956 ). " Rules 6 deals with disposal of the land taken over by the Tehsildar under Cl. (6) or Cl. (7) of Rule 5. The last rule, that is, Rule 7 says that a sanad in shall be granted by the Tehsildar to each allottee in the form appended to these Rules. Having considered the Rules, I consider it desirable to refer to one more important document which is Ex. 4. It shows that on 24-11-69 one Laxminarain on behalf of the plaintiff Rajaram and defendant Balwant Singh moved an application before the Tehsildar enquiring as to how much amount was outstanding against defendant Balwantsingh P. W. 6 Ratiram Patwari thereupon made a report on the back of the application Ex. 4 wherein a sum of Rs. 2,454/3/- was shown as due from Balwant Singh on 27-12-69. It follows from the Rules that had the defendant as per his undertaking or promise contained in the agreement Ex. 1 deposited the dues outstanding against him, he would have obtained the requisite sanad from the Tehsildar under Rule 7 of the Rules, as a matter of course. There is nothing to suggest under the Rules that the grant of sanad could have been with held to the defendant even if he had cleared off the outstanding amount due from him. It is true that under Cl. (5) of Rule 5 an allottee shall not be entitled to sell or mortgage or transfer the land before he pays all the dues outstanding against him, but, at the same time, it is also clear from the Rules that on payment of dues the sanad would be granted as a matter of course, unless, of course, action has been taken by the Tehsildar under clause (6) or clause (7) of Rule 5. It is no body's case that any action has been taken in the present case by the Tehsildar under the aforesaid clauses. It is true that in the present case the defendant had not cleared off all the dues payable by him. But, the question arises whether, on this account, a decree for specific performance cannot be passed ? The argument of the learned counsel for the defendant is that the agreement entered into between the parties was merely a contingent contract and not a concluded contract. In my opinion, the argument is wholly untenable. Merely because in the said agreement, the vendor took it upon himself the responsibility of depositing the dues due to the government, it will not make the contract a contingent one. Sec. 31 of the Contract Act says that 'a contingent contract' is a contract to do or not to do something, if some event collateral to such contract does or does not happen. Here on the terms of the agreement dated 17th October, 1966, there is nothing to suggest that the execution of the sale-deed depended upon any event in the sense that the happening of the event was beyond the control of the vendor. As pointed out above, it was within the power of the defendant to deposit dues outstanding against him In such a case, it cannot be said that the agreement between the parties was a contingent one within the meaning of sec. 31 of the Contract Act and not: a concluded contract. In Motilal vs. Nanhelal (8), the sanction of certificate by the revenue authorities was necessary for the sale of the cultivating rights in the land in suit and in a suit for specific performance of an agreement to sell such rights, it was held by their lordships of the Privy Council that the vendor having agreed to transfer the cultivating rights in the land there was implied covenant on his part to do all things necessary to effect such transfer which will include an application to the revenue Officer to sanction the transfer according to the C. P. Tenancy Act. In other words, what their lordships held was that the fact that such application had not been made and the sanction of the appropriate authorities not obtained was not a bar to the grant of a decree for specific performance of the agreement to sell. Again, in Mrs. Chandnee widya Vati's case (supra), the plaintiff entered into a contract for sale of a house belonging to the defendant and built on a lease-hold plot granted by the government. One of the terms in the agreement between the parties was that the vendor shall obtain the permission of the Chief Commissioner to the transaction of sale within 2 months of the agreement and if the said permission was not forthwith coming within that time, it was open to the purchaser to extend the date or treat the agreement as cancelled. The defendant made an application to the proper authorities for the necessary permission but withdrew it later on. The plaintiff then called upon the defendant to fulfil her part of the contract but when he failed to do so, a suit was instituted for specific performance of the contract or, in the alternative for damages, it was argued before their lordships' of the Supreme Court that the contract was not enforceable being of a contingent nature ana the contingency not having been fulfilled. Their lordships repelled the argument in the following words: " The main ground of attack on this appeal is that the contract is not enforceable being of a cotingent nature and the contingency not having been fulfilled. In our opinion, there is no substance in this contention. So far as the parties to the contract are concerned, they had agreed to bind themselves by the terms of the document executed between them. Under that document it was for the defendant-vendor to make the necessary application for the permission to the Chief Commissioner. She had as a matter of fact made such an application but for reasons of her own decided to withdraw the same. On the findings that the plaintiffs have always been ready and willing to perform their part of the contract and that it was the defendant who willfully refused to perform her part of the contract, and that time was not of the essence of the contract, the Court has got to enforce the terms of the contract and to enjoin upon the defendant-appellant to make the necessary application to the Chief Commissioner. It will be for the Chief Commissioner to decide whether or not to grant the necessary sanction. In this view of the matter, the High Court was entirely correct in decreeing the suit for specific performance of the contract. The High Court should have further directed the defendant to make the necessary application for permission to the Chief Commissioner, which was implied in the contract between the parties. As the defendant-vendor, without any sufficient reasons, withdrew the application already made to the Chief Commissioner, the decree to be prepared by this Court will add the clause that the defendent, within one month from today, shall make the necessary application to the Chief Commissioner or to such other competent authority as may have been empowered to grant the necessary sanction to transfers like the one in question, and further that within one month of the receipt of that sanction she shall convey to the plaintiffs the property in suit. In the event of the sanetion being refused, the plaintiffs shall be entitled to the damages as decreed by the High Court. . . " The principle laid down in the aforesaid decision of the Supreme Court was followed later on in Nathulal vs. Phoolchand (9 ).
(3.) THE undertaking of the defendant that he shall obtain the sanad after depositing the amount due to the government is enforceable under the terras of the agreement even if the defendant had committed default in depositing the outstanding dues and in obtaining the sanad. Sec. 13 (b) of the Specific Relief Act, 1963 can usefully be referred to in this connection, which says that where the concurrence of other persons is necessary for valiating the title and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence. I think the Court has power and jurisdiction under sec. 13 (b) of the Specific Relief Act, 1963, to compel the defendant to take steps and obtain the sanad in respect of the land agreed to be sold by him. THE learned Additional District Judge, in the circumstances, rightly passed a decree in the manner in which he did. For the reasons stated above, I find no merits in this appeal and it is dismissed with costs. .;