Champavati Shyam Naik vs Smt. Umabai B. Parulekar,since deceased through Legal heirs

F.M. Reis, J

Heard Shri S. G. Dessai, learned Senior Counsel appearing for the appellant. The above Second Appeal challenges the judgments and decrees passed by the Courts below whereby the suit for specific performance of contract filed by the appellant came to be dismissed. The learned Trial Judge by judgment and decree dated 30.01.2010 dismissed the suit filed by the appellant on the ground that the appellant was not entitled for specific performance of agreement as the property which is sought to be purchased was allotted to the deceased Mahesh by the Communidade and as such the question of agreeing to sell such property without obtaining permission of the Communidade would not arise at all. The learned Judge further found that as per the provisions of the Code of Communidade no person is entitled to enter into any transaction of sale of the land allotted to them for a period of 10 years after such allotment. The learned Judge further found that the suit filed by the appellant was not barred by law of limitation. The learned Judge further came to the conclusion that the appellant was not entitled for any specific performance of agreement and consequently dismissed the suit filed by the appellant.

The appellant preferred an appeal before the learned District Judge which by judgment and decree dated 31.08.2010 came to be dismissed. Being aggrieved by the judgments of the Courts below, the appellant preferred the present appeal.

Shri S. G. Dessai, learned Senior Counsel appearing for the appellant has assailed the impugned judgment on the ground that the Lower Appellate Court has erroneously come to the conclusion that the suit filed by the appellant was barred by law of limitation. The learned Senior Counsel further points out that as per Article 54 of the Limitation Act, such suit can be filed within three years from the date of the performance of the agreement and/or in case no such date is fixed from the date when the vendor refused to comply with the terms of the agreement. The learned Senior Counsel further points out that from the evidence on record, it clearly manifest that after the execution of the agreement in 1985, the deceased Mahesh had renewed the agreement in 1988 and 1992 and considering the said dates, the suit was not barred by law of limitation. The learned Senior Counsel has taken me through the agreement executed between the parties and pointed out that it was incumbent upon the said Mahesh to take necessary steps to obtain a permission from the Communidade before the execution of the sale deed. The learned Senior Counsel further points out that the findings of the Lower Appellate Court to the effect that the wife of the said Mahesh was not party to the said agreement is erroneous. The learned Senior Counsel further points out that the wife of said Mahesh was required to be party only at the time of the execution of the sale deed and the question of making her the party at the time of execution of sale agreement would not arise at all. The learned Senior Counsel further took me through the impugned judgment and pointed out that the Lower Appellate Court has erroneously come to the conclusion that the Communidade was necessary party to the suit and further that the learned Judge has misappreciated the evidence on record and come to an erroneous conclusion that the appellant was not entitled for specific performance of agreement.

Having heard the learned Senior Counsel and on perusal of records, the contention of the learned Senior Counsel to the effect that the suit is not barred by law of limitation may be justified. Considering that there was a sale agreement executed by the said Mahesh way back in the year 1992 and taking note that the suit is filed in the year 1996, and the performance of the terms of the contract was to be on 31.12.1995, I find that the Lower Appellate Court was not justified to come to the conclusion that the suit was barred by law of limitation.

With regard to the next contention of the learned Senior Counsel for the appellant, the Code of Communidade clearly provides that once land is allotted, the granter can sell the land so granted only after a period of 10 years. In the present case, admittedly as on the date of the agreement in the year 1985, the ten years had not elapsed. Apart from that, there is nothing on record to suggest that the said Mahesh had obtained any permission from the Communidade for executing any such sale deed in favour of the appellant. Apart from that, the agreement reveals that only the provisional possession was given to the said deceased Mahesh at the time of the execution of agreement.

Article 338 of the Code of Communidade clearly provides that merely granting such provisional change does not create any interest nor can it be availed of to claim any judicial right in any property as it is only an act of tolerance. Considering the said provisions of the Code of Communidade, I find that the deceased Mahesh was not entitled to execute the agreement for sale in favour of the appellant. Apart from that, the Lower Appellate Court has come to the conclusion that there was contention raised by the respondents to the effect that the signatures of the said Mahesh were forged. Besides the Lower Appellate Court has come to the conclusion that no effective decree can be granted without making the Communidade as a party to the said proceedings. It is also not in dispute that when the subsequent agreement was executed in the year 1992, the said Mahesh had married respondent no.2 under the regime of communion of assets and as such the said deceased Mahesh could not execute the said agreement without the consent of the respondent no.2.

Considering the said facts and circumstances of the case, I find that the two Courts below have rightly appreciated the evidence on record and have come to the correct conclusion that the appellant is not entitled for specific performance of the agreement. Such concurrent findings of facts cannot be interfered with in the present second appeal. Considering that the agreement itself is contrary to the provisions of law, the specific performance of agreement cannot be granted. In view of the above, I find that there is no substantial question of law which arises in above appeal which calls for adjudication u/s 100 of the Civil Procedure Code. Hence, the above appeal stands dismissed.