KOTHARI, J. - (1.) THIS appeal is directed against the order dated 1. 3. 2007 passed by learned ADJ No. 1, Kota dismissing the civil suit No. 1/2000 on an application filed under O. 7 R. 11 CPC by defendant No. 6 Ijyaraj Singh son of Sh. Maharao Brajraj Singh on 15. 9. 2006.
(2.) THE facts leading to the present impugned order in brief are like this. The plaintiff Smt. Saraswati Devi, appellant herein filed a suit for specific performance against the defendant with regard to 80 bighas of land which came under ceiling and under an exemption order passed on 24. 2. 1990 by the State Government exempting the land in question from the provisions of the Urban Land & Ceiling Act, 1976 (since repealed in 1999) on 24. 2. 1990. The agreement in question is said to be oral and made on 26. 2. 1990 and according to the plaintiff, she paid entire consideration of Rs. 12 lacs to the defendant No. 2 Prithvi Raj Singh who was trusted assistant of Maharao Bhim Singhji, who has since expired and present defendants are the family members. According to the plaintiff, they were also put in possession of the land in question. The suit was contested by the defendants inter alia on the ground that the said agreement was only subject to framing of an scheme and approval by the UIT, Kota. The defendant No. 6 who filed the present application under O. 7 R. 11 CPC, submitted before the court that the property in question was bequeathed to him by way of Will by his grand father Sh. Bhim Singhji and, therefore, the suit was barred by law as the agreement in question was void as hit by Sec. 5, 10 (4) & 27 of the Urban Land & Ceiling Act. There appears to be a multiplicity of litigation between the parties about the land in dispute pending in civil, revenue & criminal side courts and the matter has also travelled up to Hon'ble Supreme Court on the issue of temporary injunction and on two occasions to this court in two civil misc. appeals, reference to which would be made a little later. The trial Court has allowed the application under O. 7 R. 11 CPC mainly relying on the Judgment of Madras High Court in M/s. Raptakos Brett and Co. Pvt. Ltd. vs. M/s. Modi Business Centre (Pvt.) Ltd. reported in AIR 2006 Madras 236 wherein the learned Single Judge has held that the relief of specific performance can be granted in respect of an immovable property on the basis of an oral agreement, but the oral agreement was entered into between the parties in respect of 21. 71 acres which property admittedly belonged to the defendant, and the same property was under the clutches of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978. If an agreement entered into between the parties at the inception is void, it can, by no stretch of imagination, be legalized by a subsequent repealing of the Act or by an order of the Court. Relying on the Full Bench view of Madras High Court in P. Gopirathnam vs. Feerodous Estate (Pvt.) Ltd. reported in 1993 (3) RLW 249, the court held that if that person holds more land than prescribed under Sec. 5, such transfer shall be deemed to be null and void in view of prohibition under Sec. 6 against the transfer of the land and thus the agreement could not be enforced. The court thus allowed the application under O. 7 R. 11 CPC. Mr. M. M. Ranjan, learned counsel for the respondent- defendants also relied upon the judgment of Hon'ble Supreme Court in K. Narendra vs. Riviera Apartments (P) Ltd. reported in (1995) 5 SCC 77 in which the Hon'ble Supreme Court applying the doctrine of comparative hardship to the parties and relevance of long lapse of time instead of granting specific performance, awarded compensation to the plaintiff where the defendant-appellant entered into an Agreement to Sell a plot of land to respondent to construct a multi storeyed building in an area covered the Master/zonal plan and requiring several sanctions and clearances which were not within the power of the parties but the parties knowingly depended on the respondents for securing the requisite sanctions and clearance. He further relied on AIR 1992 SC 1567 Smt. Meera Gupta vs. State of West Bengal and Ors. in which the Hon'ble Supreme Court in para No. 13 held that the words "any other land" in the sequence would thus mean any other built-upon land except the one excluded from the expression "vacant land" on account of it being occupied by a building which stood constructed or was in the process of construction on the appointed day, finds support from Sec. 5 which pursues and does not leave alone transfer of vacant land in the gap period. The provisions of Sec. 5 reflects in scheme of the Act inasmuch as transfers of vacant land within the gap period are ignorable, and likewise, vacant land brought under construction of building by a person within the gap period is also ignorable for the purpose of calculating the extent of vacant land, so that the provisions of law are not defeated by human ingenuity.
(3.) ON the other hand, strongly opposing the submissions of Mr. Ranjan, learned counsel for appellant, Mrs. Sonia Shandilya & Mr. Sandeep Pathak submitted that the application filed under O. 7 R. 11 CPC by defendant No. 6 Ijyaraj Singh was not only not maintainable but was barred by the principles of res judicata contained under O. 2 R. 2 CPC because similar application under O. 7 R. 11 CPC was filed by defendant No. 1 Maharao Brajraj Singh son of late Sh. Maharao Bhim Singh and father of defendant No. 6, which came to be rejected by the same Presiding Officer on 11. 8. 06. Yet after filing of the written statement, the defendant No. 6 who was impleaded in the suit as defendant, when he claimed through a Will alleged to have been executed by late Maharao Bhim Singh in his favour, filed the present application under O. 7 R. 11 on almost the same grounds but the same came to be allowed by the same Presiding Officer on 1. 3. 2007 by impugned order. They submitted that the suit for specific performance deserved a full dress trial and where the mixed questions of law and facts were involved, there was no question of dismissing the suit at the threshold on an application under O. 7 R. 11 CPC that too after written statement was filed by the defendants (in September 2006), six years after the filing of the suit. They contended that once the land in question was exempted from Ceiling by an order passed under Sec. 20 of the ULCRA Act by the State Government on 24. 2. 1990, there was no prohibition or bar in law in entering into an Agreement to Sell by the late Maharao Bhim Singh two days after the said order on 26. 2. 1990 much before his death on 21. 7. 1991. They submitted that the trial Court had wrongly construed the said order of exemption under Sec. 20 of the ULCRA Act as one being under Sec. 21 of the said Act which empowers the competent authority, not to treat the excess vacant land, as vacant land in certain cases and in which case, rest of the provisions of Chapter III of the said Act about disposal of the excess land and Sec. 27 containing prohibition of transfer of urban property could be applied. Furthering their arguments, learned counsel for the appellant submitted that in view of exemption under Sec. 20 of the Act vide order dated 24. 2. 1990, even if subject to certain conditions, it could not be said that for the alleged non-compliance or non-fulfillment of such conditions, the Agreement to Sell the land in question, would be void, On the other hand, the exemption order which stands even now and by an order dated 7. 6. 91, the Government had even refused to withdraw or cancel the exemption order dated 24. 2. 1990, vacating the stay order dated 30. 6. 90, put this situation beyond the pale of doubt that the exemption from ULCRA Act was fully applicable in the present case and, therefore, there was no question of holding the Agreement to Sell dated 26. 2. 1990 as void or unenforceable so as to furnish a ground of allowing the application under O. 7 R. 11 CPC and dismissing the suit for specific performance. According to them, the assumed non-compliance with the conditions of exemption was a self assumed and self serving proposition, which in fact did not exist. They also questioned the credibility of UIT, Kota also moving similar application supporting the cause of the defendant No. 6. Mr. Sandeep Pathak, they young brimming lawyer, as if to put the last straws on camel's back urged that the background of the case shows that there was not only the intra party dispute between the defendants and mother & sisters pitched against the defendant Nos. 1 and 6 in which alleged Will in favour of defendant No. 6, was also under challenge in competent court, but he also urged that in the similar manner as the present appellant is, the defendant pressurized one Om Prakash to settle the dispute about the Agreement to Sell another chunk of land of late Maharao Bhim Singh and after settlement, defendants were themselves selling the plots of the said land and the purpose of filing the impugned application under O. 7 R. 11 CPC and getting the suit dismissed was only to make their way clear for adopting similar course of action qua the land in dispute. ;