SLP(C) No.

29462 OF 2019

2024 INSC 122 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2024

[@ SLP(C) No.29462 OF 2019]

BABASAHEB Appellant(s)

VERSUS

RADHU VITHOBA BARDE Respondent(s)

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
Deepak Joshi
was
Date: 2024.12.18
11:29:16 IST
Reason:
paid by the plaintiff to the defendant on the said date.

Thereafter possession was stated to have been given in the year

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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

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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

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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 contended

that in a suit for specific performance for agreement to sell what

was required to be considered was conditions and stipulations

considered under Sections 10, 16 etc. of the Specific Relief Act,

1963 and the plaintiff had complied with those conditions inasmuch

as out of a total consideration of Rs.2,25,000/-, the plaintiff had

already tendered Rs.2,20,000/- and he had performed his part of the

contract whereas the defendant had not done so. Therefore the trial

Court as well as the first appellate Court were not right in

granting only the alternative relief.

He further contended that Section 36A of the Land Revenue Code

was improperly invoked by the High Court. The said Section clearly

stipulates that if a tribal is to alienate land to a non-tribal by

way of sale, gift, exchange, or mortgage, lease or deal otherwise

then such a non-tribal has to make an application and with the

previous sanction, a tribal can alienate or convey the land to a

non-tribal. He submitted that in the absence of the defendant

coming forward to execute 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

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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 handed over. That the sale agreement was in violation of

Section 36A of the Land Revenue Code. Therefore, the High Court was

right in holding that the transaction itself was void since there

was no prior sanction obtained and hence, the decree for specific

performance could not have been granted. He therefore contended

that there is no merit in this appeal and therefore, the same may

be dismissed.

Having heard learned counsel for the respective parties and on

perusal of the impugned judgment of the High Court as well as the

courts below, we find that the High Court has focused itself only

on the aspect regarding Section 36A of the Land Revenue Code to

deny relief to the appellant-plaintiff. The trial Court, the First

Appellate Court as well as the High Court have concurrently held

that there was indeed an agreement to sell between the parties and

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the plaintiff had paid a sum of Rs.2,20,000/- out of a total

consideration of Rs.2,25,000/- to the defendant-respondent herein,

who had also handed over possession of the subject land to the

plaintiff.

At this stage itself, it may be observed that the defendant

had not taken any contention to the effect that the entering of

agreement in favour of the plaintiff or the handing over of the

possession was contrary to any provision of law. On the other hand,

it is contention of the learned counsel for the defendant-

respondent herein that there was restriction on transfer of land by

a tribal (defendant-respondent herein) in favour of non-tribals

(appellant-petitioner herein). In that regard, Section 36 A has

been adverted to. The same is extracted hereunder:

“36A: Restrictions on transfers of occupancies by

Tribals:-
(1) Notwithstanding anything contained in sub-
section (1) of section 36, no occupancy of a
Tribal shall, after the commencement of the
Maharashtra Land Revenue Code and Tenancy Laws
(Amendment) Act,, 1974, be transferred in
favour of any non-Tribal by way of sale
(including sales in execution of a decree of a
Civil Court or an award or order of any
Tribunal or authority), gift, exchange,
mortgage, lease or otherwise, except on the
application of such non-Tribal and except with
the previous sanction- (a)in the case of a
lease or mortgage for a period not exceeding 5

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years, of the Collector; and (b) in all other

cases, of the Collector with the previous
approval of the State Government. Provided
that, no 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 thirty years) from the
date of the transfer of occupancy hold an
inquiry in the prescribed manner and decide the
matter.
(5) Where the Collector decides that any transfer

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of occupancy has been made in contravention of

sub-section (1), he shall declare the transfer
to be invalid, and thereupon, the occupancy
together with the standing crops thereon, if
any, shall vest in the State Government free of
all encumbrances and shall be disposed of in
such manner as the State Government may, from
time to time direct.
(6) Where an occupancy is vested in the State
Government under sub-section (5) is to be
disposed of, the Collector shall give notice in
writing to the Tribal-transferor requiring him
to be state within 90 days from the date of
receipt of such notice whether or not he is
willing to purchase the land. If such Tribal -
transferor agrees to purchase the occupancy,
then the occupancy may be granted to him if he
pays the prescribed purchase price and
undertakes to cultivate the land personally; so
however that the total land held by such
Tribal-transferor, whether as owner or tenant,
does not as for as possible exceed an economic
holding.”

On a reading of the Section 36A, what is evident is that there

is only a restriction on the transfer to be made by a 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

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(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. However, before

conveying the land by the tribal in favour of a non-tribal, the

requisites of Section 36A must be complied with by the non-tribal

before the State Government in terms of Section 36A of the Land

Revenue Code. That stage has not yet arisen in the instant case,

for the reason that the defendant 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

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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 of the Specific Relief Act,

1963 only had to be made for the purpose of adjudicating the suit

between the parties. Since there was no reason to decline the grant

of a decree under the provisions of the said Act, the trial Court,

the First Appellate Court as well as the High Court ought to have

granted the said decree rather than granting an alternative relief.

It may be noted that the plaintiff had relied upon Nathulal v.

Fulchand 1969(3) SCC 120 wherein it was held that when an agreement

to sale is executed but it cannot be specifically performed without

permission or sanction of any authority, the suit can be decreed

and decree for specific performance can be granted subject to

obtaining such permission/sanction from the competent authority.

The sanction in the said case pertained to Section 70(4) of the

Madhya Bharat Land Revenue and Tenancy Act, 1950 as it postulated

that a purchaser of agricultural land, not being an agriculturist,

would require permission from the State government for the sale to

take place. This court had allowed for the operation of the

doctrine of part performance while reasoning that it was well

settled that if a property is not transferable without the

permission of the authority, an agreement to transfer the property

must be deemed subject to the implied condition that the transferor

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will obtain the sanction of the authority concerned. We find that

the plaintiff had rightly placed reliance on this case before the

High Court and that there was no occasion to distinguish the prior

sanction required under Section 70(4) of the Madhya Bharat Land

Revenue and Tenancy Act, 1950 from Section 36A of the Land Revenue

Code, 1959.

On the other hand, in our view, the High Court fell in error

while relying upon Murlidhar Dayandeo Kesekar v. Vishwanath Pandu

Barde, 1995 (Supp.) 2 SCC 549 for the reason that the appellant in

that case, being a non-tribal purchaser, had been denied permission

for alienation by the Collector and the Commissioner, and had filed

a writ petition before the High Court that had come to be

dismissed. Therefore, this Court dismissed his Special Leave

Petition on the ground that the denial of permission by the State

authorities could not be faulted for it was in consonance with the

constitutional scheme and the assigned land cannot be permitted to

be sold or converted to non-agricultural use. The question before

the High Court, as noticed by us, was different because the stage

of taking steps to secure the previous sanction under Section 36A

of the Maharashtra Land Revenue Code, 1959 had not arisen in the

present case.

In the circumstances, we modify the judgment of the High

Court, First Appellate Court as well as the trial Court and decree

the suit filed by the plaintiff by holding that the plaintiff is

entitled to the relief specific performance of the agreement to

sell dated 31.07.2001. The suit is decreed in the aforesaid terms.

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It is needless to observe that now that we have granted the

decree of specific performance, the appellant-plaintiff shall

proceed under Section 36A of the said Section before seeking

conveyance of the subject land in his favour in case the defendant

is a tribal.

Registry to draw up a decree in the aforesaid term.

The appeal is allowed in the aforesaid terms.

No costs.

. . . . . . . . . . . ,J
[B.V. NAGARATHNA]

. . . . . . . . . . . . . .,J
[AUGUSTINE GEORGE MASIH]
NEW DELHI,
FEBRUARY 15, 2024

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