9911796707
TMI Blog2024 (2) TMI 1516X X X X Extracts X X X X X X X X Extracts X X X X ..... tribal in favour of the non-tribal by way of sale, gift, exchange, mortgage, lease or otherwise. Such a restriction is in the context of requiring the non-tribal to make an application for a previous sanction before such a conveyance could be made by a tribal (defendant/ respondent herein) in favour of non-tribal (plaintiff/appellant herein) before the State Government so as to seek previous approval of the State Government only after a previous approval of the State Government could such a sale take place. The conveyance by way of sale would take place only at the time of registration of a sale deed in accordance with Section 17 of the Registration Act, 2008. Till then, there is no conveyance. Therefore, there is no bar for a tribal to enter into an agreement to sell and seeking advance sale consideration. In view of the defendant not performing his part of the agreement to sell, the plaintiff was constrained to file suit for specific performance. When all the courts have held that the plaintiff has performed his part of the agreement inasmuch as he had tendered a sum of Rs.2,20,000/- out of a total consideration of Rs.2,25,000/- and he was ready and willing to perform the rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sponse 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cute the sale deed, there was no occasion for the plaintiff to seek such a sanction of the State Government that only if the decree for specific performance is passed in favour of the plaintiff herein he would be in a position to seek such a sanction and ultimately the decree would be executed only if the sanction is given by the State Government in terms of Section 36A of the Land Revenue Code. Therefore, the High Court was not right in holding that in view of the Section 36A of the Land Revenue Code, the defendant had no right to even enter into an agreement to sell and that the plaintiff had no right to seek the relief of specific performance of the agreement to sell. It was contended that the judgments of the High Court and courts below may be set aside and decree of specific performance of agreement to sell may be granted by allowing this appeal. Per contra, learned counsel for the respondent supported the impugned judgment and contended that Section 36A not only refers to sale, gift, exchange, mortgage, lease but also uses 'or otherwise'. That in the instant case, pursuant to the agreement to sell entered into by the defendant in favour of the plaintiff, possession also was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such sanction shall be accorded by the Collector unless he is satisfied that no Tribal residing in the village in which the occupancy is situate or within five kilometers thereof is prepared to take the occupancy from the owner on lease, mortgage or by sale or otherwise. (2) The previous sanction of the Collector may be given in such circumstances and subject to such conditions as may be prescribed. (3) On the expiry of the period of the lease or, as the case may be, of the mortgage, the Collector may, notwithstanding anything contained in any law for the time being in force, or any decree or order of any court or award or order of any Tribunal, or authority, either suo motu or on application made by the Tribal in that behalf, restore possession of the occupancy to the Tribal. (4) Where, on or after the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment)Act, 1974, it is noticed that any occupancy has been transferred in contravention or sub-section (1) 1(the Collector shall, not withstanding anything contained in any law for the time being in force, either suo motu or on an application made by any person interested in such occupant, within thirt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant failed to perform his part of the agreement inasmuch as he did not come forward to execute the sale deed. Possibly, if the defendant had come forward to execute the sale deed in favour of the plaintiff, then it would have been the duty of the appellant to have proceeded under Section 36A of the Land Revenue Code and seek the requisite permission or previous sanction from the Collector. In view of the defendant not performing his part of the agreement to sell, the plaintiff was constrained to file suit for specific performance. When all the courts have held that the plaintiff has performed his part of the agreement inasmuch as he had tendered a sum of Rs.2,20,000/- out of a total consideration of Rs.2,25,000/- and he was ready and willing to perform the rest of the obligation under the contract, it was only in the context of non-performance by the defendant that the plaintiff was constrained to file the suit for specific performance. Therefore, on the basis of Section 36A, the trial Court, the first appellate court as well as the High Court could not have declined to grant the decree for specific performance to the plaintiff inasmuch as the considerations under the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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