Once such a layout is prepared, submitted and got approved, it must be taken that such area is required to be used for common purposes such as park, school, playground, roads etc., and the owner cannot subsequently wriggle out of such a situation.

THE HONBLE SRI JUSTICE M.S.K.JAISWAL      

A.S.Nos.2091  of 1991 and batch

07-04-2017

Bharathiya Vignana Mandiram (Regd.) Rep.by its Secretary and others
.Appellants
                               
Veddi Sankara Rao and others ..Respondents  

Counsel for the Appellants:Sri VSR Anjaneyulu and
                            Sri TVS Prabhakara Rao

Counsel for the respondents: Sri MSR Subhrahmanyam and  
                              Sri P.N.Murthy

< Gist  :

>Head Note:

?  Cases Referred:
1)(1995) 1 SCC 47
2)AIR 1972 A.P., 178

HONBLE SRI JUSTICE M.S.K.JAISWAL      

A.S.Nos.2091 and 2305 of 1991,

1850 and 2074 of 1992

COMMON JUDGMENT:-      
        These four appeals arise out of common Judgment in
O.S.No.623 of 1982 and O.S.No.110 of 1983 on the file of the
learned I-Additional Subordinate Judge, Vijayawada, dated        16-
09-1991, by and under which, O.S.No.623 of 1982 filed by the
land owner of the schedule property for recovery of possession was
partly decreed, O.S.No.110 of 1983 filed by the possessor of the
schedule property under an agreement of sale, dated 26-10-1973,
was partly decreed.
2.      The suit schedule property comprises of an extent of 1890
Sq.Yds., of land situated in Sy.Nos.45, 46, 47, 48 and 49 situated
in Laxmi Nagar, Satyanarayanapuram within the limits of
Vijayawada Municipal Corporation.
3.      Since both the parties were aggrieved by grant of partial relief
in their respective suits, the appeals in hand are filed. While the
plaintiff in O.S.No.623 of 1982 has filed A.S.No.1850 and 2074 of
1992, the plaintiff in O.S.No.110 of 1983 has filed A.S.No.2091
and 2305 of 1991.
4.      Both the suits were clubbed and tried jointly by the trial
Court.  The evidence was recorded in O.S.No.623 of 1982 which
was filed by the owner of the schedule lands for recovery of
possession.  The defendant in the suit filed O.S.No.110 of 1983 for
specific performance of the contract in respect of the same property.
For the sake of convenience, the parties shall be referred to as they
are arrayed in O.S.No.623 of 1982.
5.      The pleadings of the respective parties may briefly be noticed.
6.      O.S.No.623 OF 1982:-
         The plaintiff filed the suit for recovery of possession of the
plaint schedule properties and for damages of Rs.13,440/- and for
future damages at Rs.1,000/- per month for use and occupation.
        The plaintiff is the owner of Ac.2-09 cents of land in
R.S.No.132/1 of Vijayawada Municipal Corporation.  He obtained
layout sanction vide 16/62 by the municipality.  In that, an extent
of 1260 Sq.Yds. of site was reserved as a park site but it continued
to be in possession and enjoyment of the plaintiff.  In June, 1974,
an extent of 630 Sq.Yds., of site was given on lease to Sri
K.Raghava Rao, the Secretary of the defendant, under an
agreement on 6-6-1974, at the rate of Rs.80/- per month for the
first year and subsequent years, at the rate of Rs.100/- per month
and possession was also taken and structures were erected.  In
April, 1978, after the advent of the Urban Land Ceiling Act, the
Secretary approached the plaintiff and requested to purchase 630
Sq.Yds., of site that was leased along with the reserved site of 1260
Sq.Yds., representing that he would get the dereservation from the
Government and also exemption from the Urban Land Ceiling
Authorities because an educational institution was being run it
will be easy to get the above orders.  Believing the said words of
Raghava Rao, the plaintiff agreed to sell the suit property at
Rs.27/- per Sq.Yd. and entered into an agreement.  Finally, a sale
agreement from the plaintiff was obtained on 23-05-1978
antedating the same as 26-10-1973 on the representation that
unless the transaction appears to be long prior to the
commencement of the Urban Land Ceiling Act, it will not be
possible to obtain the exemptions.  After taking possession of the
entire plaint schedule property, the defendant obtained permission
from the Municipality for construction of class rooms.
      It is alleged that several incorrect recitals were mentioned in
the contract apart from the dates about the payment of money.  It
is further alleged that in fact a sum of Rs.3,000/- was paid on   23-
05-1978 when the agreement was entered into, though the
payments were shown earlier one of Rs.2,000/- on 26-10-1973 and
Rs.1,000/- on 20-09-1976.  A sum of Rs.7,000/- was paid on    27-
06-1978 stating that the balance should be paid before         01-10-
1979 and in case of failure, it has to be paid with interest of 12%
per annum irrespective of the Urban Land Ceiling Permission
whether obtained or not.  The defendant stopped paying the rents
for the leased site from 01-05-1078 onwards.  The plaintiff waited
nearly for two years expecting the defendant will obtain the
dereservation order as well as the Urban Land Ceiling permission
and when the plaintiff pressed for the early completion of
transaction, a sum of Rs.10,000/- was paid on 31-08-1980 by
endorsing the same on the agreement.  The plaintiff would have got
a monthly rent of Rs.600/- even in 1978 and at present Rs.1,000/-
per month.  The Urban Land Ceiling case has ended in favour of
the plaintiff.  Even though the plaintiff informed about the
proceedings, the defendant did not complete the transaction by
obtaining the dereservaton order.  The plaintiff received a notice
dated 18-01-1982 from the Vijayawada Municipal Corporation
directing him to handover the reserved site to the Corporation and
then he could know that the defendant could not do anything for
obtaining the dereservation order and the plaintiff was bluffed.
The said notice was shown to Raghava Rao and he filed a suit in
O.S.No.96 of 1982 against the Municipal Corporation and obtained
interim injunction and continuing in possession and enjoyment of
the property.  Therefore it is quite clear that no dereservation order
was obtained and no steps were also taken by the defendant for
that and an important condition of the agreement was flouted.  The
plaintiff would have never agreed to sell the property for a
substantially low rate but for the persuasion, inducement and
misrepresentation of Raghava Rao, the plaintiff was made to believe
that what he was leasing by selling 630 Sq.Yds. of site at a
concessional rate will be doubly compensated by the amount he
gets by selling the reserved plot to the defendant.  The agreement
has become impossible for performance and has become  
unenforceable.  The plaintiff gave a notice on 26-03-1982 to the
defendant demanding possession of premises, and damages at the  
rate of Rs.600/- per month and the contract was rescinded.  The
said notice was returned.  Another notice dated 18-06-1982 was
also returned.  Thereafter, the defendant got issued a notice, dated
25-09-1982 demanding specific performance of the contract of sale.
The plaintiff gave a detailed reply for the said notice.  Therefore, the
suit is filed for recovery of possession of the suit schedule property
and also for damages for use and occupation at the rate of
Rs.600/- per month and subsequent damages at the rate of
Rs.1,000/- per month.  The amount of Rs.20,000/- paid by the
defendant to the plaintiff was adjusted towards the rent payable
from 01-05-1978 to 31-03-1981 and the balance amount is
claimed.
        The defendant filed the written statement.  It is averred that
defendant is a registered society and is represented by its
Secretary.  The plaintiff is the owner of the plaint schedule
property.  The plaintiff agreed to sell the plaint schedule property
on 26-10-1973 at the rate of Rs.27/- per Sq.Yd. and received
advance amount of Rs.2,000/- and delivered possession of the
plaint schedule property as by that time the property was lying
vacant and it was not fetching income and unnecessarily property
tax was being paid.  The plaintiff agreed to execute a registered sale
deed along with his two sons.  The plaint schedule property is an
urban land within Vijayawada Municipal limits, and as such
attracted the provisions of Urban Land Ceiling Act.  Both parties
contemplated this aspect and decided to apply and obtain
clearance and permission from the Urban Land Ceiling Authorities
and as the entire process would take considerable time, a period of
one year was stipulated for completion of the sale transaction, by
payment of the balance sale consideration.  But the same was not
mentioned in the contract by way of abundant caution.
Subsequently, on 20-09-1976 the defendant paid a sum of
Rs.1,000/- towards part payment of the sale consideration and the
same was endorsed.  Again on 27-06-1978 a sum of Rs.7,000/-
was paid by way of cheque and made endorsement stipulating that
the defendant should pay interest on the balance of sale
consideration at 12% per annum from 01-12-1979 whether
permission could be obtained or not.  Subsequently, a sum of
Rs.10,000/- was paid on 31-08-1980 and it was also endorsed on
the agreement.  Even by then, the plaintiff did not secure the
permission from the Urban Land Ceiling Authorities or any
clearance to contemplate the transaction inspite of the fact that the
defendant was ready and willing to pay the balance money with
interest and take a registered sale deed.  The plaintiff was
promising to get the clearance and requested the defendant to wait
for some time.  The defendant raised temporary thatched sheds
soon after taking possession of the suit schedule property under
the suit contract of sale for accommodating ITI College and Oriental
College, which were recognized by the Government and
subsequently the defendant raised pucca sheds with cement sheets
and other material.  The above constructions were destroyed in
1979 cyclone and the Government granted a sum of Rs.25,000/-
as relief.  Thereafter, the defendant spent nearly Rs.4,00,000/- and
raised constructions and at present, nearly 1000 students are
accommodated.  The defendant has been under the bona fide
impression and belief that the plaintiff and his sons would perform
their part of the contract.  Vijayawada Municipality initiated
proceedings to demolish the sheds in the suit site on the ground
that portion of it was reserved for a public park and that the
defendant filed O.S.No.96/1982 for permanent injunction and the
plaintiff is aware of the above proceedings.  The plaintiff never
disclosed to the defendant whether necessary exemption and
clearance were obtained from the concerned authorities even after
the filing of the above suit.  The defendant got issued a registered
notice on 25-09-1982 stating that he is ready and willing to
perform his part of the contract, and the same was replied on    10-
10-1982 with false allegations.  The defendant denied that the
contract was antedated and the value of the property is more and
that there was misrepresentation and fraud.  The defendant did not
take 630 Sq.Yds. on lease on 06-06-1974 and there was no
undertaking to get dereservation order of the Urban Land Ceiling
permission, and the plaintiff himself undertook to obtain
dereservation order.  The defendant was never informed about the
alleged reservation of the site for a park.  Having executed the
contract of sale and received a sum of Rs.20,000/-, it is not open to
the plaintiff and his sons to contend that they are not bound to
perform their part of the contract.  The defendant is in possession
and enjoyment of the property and is not liable to pay any damages
claimed by the plaintiff.  Non-obtaining of dereservation order is
not a ground to refuse to perform the part of the contract and the
defendant will take the risk in that regard and is prepared to take a
sale deed from the plaintiff and his sons.  On 06-11-1982 when the
defendant was ready to file a suit for specific performance, the
plaintiff along with others approached the defendant and requested
not to file the suit and proposed a compromise, and at their
request, the defendant did not file the suit.  Later the plaintiff
demanded Rs.100/- per Sq.Yd., for which the defendant did not
agree, but the mediators promised to settle the matter at a
reasonable price.  Till the end of December, the plaintiff did not
come forward for a settlement.  While so, on       17-01-1983 the
defendant received summons in the suit.  On the promise of the
mediators for settlement, the defendant could not file the suit
earlier for specific performance of the contract.  The defendant was
in fact  not aware of the reservation of the park site and entered
into contract bona fidely believing the representation of the
plaintiff.  The possession of the defendant and his interest in the
suit land is protected and safe-guarded under Section 53-A of the
Transfer of Property Act and the defendant is not liable to be
evicted.  The plaintiff is not entitled for any mesne profits and the
plaintiff cannot revoke the contract. Being a purchaser in
possession, the defendant is not liable to pay any damages or
rents.  The suit is frivolous and vexatious and is liable to be
dismissed.  The estimate of damages is highly exaggerated and it
will not fetch even a rent of Rs.100/- per month.  The market value
on the date of the suit does not exceed Rs.50/- per Sq.Yd. and
exaggerated values are put in the plaint with ulterior motives.  The
defendant pleaded for dismissal of the suit with costs.
        On the basis of the above pleadings, the following issues
were settled:-
1)      Whether the contract of sale was antedated?
2)      Whether the plaintiff is entitled for possession of suit
property?
3)      Whether the plaintiff is entitled for any damages, if so, at
what rate?
4)      To what relief?
7.      O.S.No.110 of 1983:-
        The suit is filed for specific performance of the contract of
sale dated 26-10-1973 executed by the defendant (owner of the
land) in favour of the plaintiff and for costs.
        The allegations in the plaint are mostly repetition of the
allegations made in the written statement filed in O.S.No.623 of
1982 and therefore it is not necessary to repeat the same.  The
plaintiff claimed that he was always ready and willing to perform
his part of the contract of sale and the defendants were evading to
execute a regular sale deed after obtaining necessary Urban Land
Ceiling permission or other concessions.
        The 1st defendant filed a written statement reiterating most of
the allegations made in the plaint in O.S.No.623 of 1982.  It is
alleged that the suit contract is antedated, vitiated by fraud and
undue influence and that the plaintiff was never ready and willing
to perform the part of the contract and the contract has become
impossible of performance as no dereservation order is obtained
and as such the suit contract is not enforceable.
        Defendants 2 and 3 filed a written statement admitting that
the 1st defendant is the manager of the family and they were not
aware of the execution of the agreement of sale dated 26-10-1973.
They also reiterated most of the allegations and contentions raised
by the 1st defendant.  These defendants claimed that they are not
necessary parties to the suit and there is no cause of action against
them, and pleaded for dismissal of the suit.
        On the basis of the above pleadings, the following issues
were settled:-
1)      Whether the plaintiffs society has been registered under
the Societies Registration Act?
2)      Whether the suit agreement was obtained by the
Secretary of the plaintiff from the defendants on           23-
05-1978 and it was antedated and it is vitiated by fraud
and misrepresentation as contended by the defendants?
3)      Whether the alleged agreement of sale is not valid and not
enforceable?
4)      Whether the contract of sale has been frustrated due to
impossibility of performance?
5)      Whether the plaintiff is entitled for the specific
performance of contract of sale?
6)      Whether the defendants 2 and 3 are not necessary parties
to the suit?
7)      To what relief?
8.      On behalf of the plaintiff in O.S.No.623 of 1982, PWs.1 to 5
were examined and Exs.A.1 to A.20 were marked.  On behalf of the
defendant, DWs.1 to 4 were examined and Exs.B.1 to B.24 were
marked.  Exs.X.1 to X.11 were also marked.
9.      Learned Counsel appearing for the appellants in
A.S.No.1850 and 2072 of 1992 (plaintiff in O.S.No.623 of 1982)
submits that the learned trial Court has erred in refusing to grant
the relief to the plaintiff as prayed for.  While the trial Court has
upheld the contention of the appellants insofar as 1260 Sq.Yds., of
land is concerned, the Court has erroneously dismissed the claim
insofar as 630 Sq.Yds., of land is concerned.
10.     On the other hand, learned Counsel appearing for the
respondents/agreement holder/defendant in O.S.No.623 of 1982
submits that the learned trial Judge having upheld the claim of the
defendant insofar as 630 Sq.Yds., of land is concerned, has
erroneously dismissed the relief of specific performance in respect
of an extent of 1260 Sq.Yds., of land on the ground that the said
site was reserved for park as per the layout and hence the same is
inalienable.  Learned Counsel submits that even during the trial,
he offered his willingness to complete the contract at his own peril.
It is further submitted that even if the said extent of 1260 Sq.Yds.,
of land was reserved for park, the ownership thereof do not vest
with the Municipality so long as the same has not been acquired
by the Municipality for the said purpose.  Learned Counsel
submits that merely because in the layout certain extent of land
has been show as public utility area, the owner of the entire extent
of land cannot be said to have been divested of his right or title over
the said property.  Learned Counsel submits that the utility of the
land left for public purpose has to be allowed for the public
purpose to be enjoyed by the residents of the locality but it do not
in any way confer title over the said property in favour of the
Municipality so long as that land has not been acquired by it.  It is
submitted that the entire approach of the learned trial Judge
insofar as this extent of land is concerned is erroneous and the suit
filed by the agreement-holder/plaintiff in O.S.No.110 of 1983
ought to have been decree in toto but not partially only for 630
Sq.Yds., as has been done.
11.     The points that arise for consideration are as to:
1)      Whether the plaintiff in O.S.No.110 of 1983 is
entitled to the relief of specific performance of the
contract for the entire extent of 1890 Sq.Yds., of
land?
2)      Whether the plaintiff in O.S.No.623 of 1982 is
entitled to recover possession of the entire extent of
1890 Sq.Yds., of land as against 1260 Sq.Yds., of
land as has been decreed by the Court below?
3)      Whether the impugned Judgment warrants any  
interference so as to modify, set aside or vary the
same?

12.     Having perused the voluminous oral and documentary
evidence and also the impugned Judgment and after hearing the
elaborate arguments of the learned Counsel appearing on either
side, it can be straight away observed without fear of contradiction
that substantial factual matrix is either admitted or is not seriously
in controversy.  The point in dispute boils down to the question as
to whether the land that has been earmarked for public utility in a
layout approved by the Municipality is alienable so long as the
same has not been taken possession of or acquired by the local
authority.  In other words, is it open to a vendor under an
agreement of sale to refuse to register the property agreed upon in
favour of the vendee on the ground that he or they have no
alienable title over the property agreed to be sold under a contract.
13.     The plaintiff is the owner of an extent of Ac.2-09 cents of
land in Sy.Nos.45, 46, 47, 48 and 49 of Laxmi Nagar,
Satyanarayanapuram, within the limits of Vijayawada Municipal
Corporation.  They submitted and obtained approval of a layout in
the year 1962 in respect of the said land, bearing No.16 of 1962.
As per the said layout, an extent of 1260 Sq.Yds., of land was
reserved for park.  The rest of the lands were made into plots.  The
defendant is an educational institution.  In order to meet the
expanding requirement of the educational institution, the
defendant entered into an agreement of sale with the plaintiff for a
total extent of 1890 Sq.Yds., of land and the agreed price was
Rs.27/- per Sq.Yd., which comes to Rs.51,030/-.  The agreement of
sale has been produced by both the parties and document that is
filed by the plaintiff is marked as Ex.A4 whereas the document
produced by the defendant is marked as Ex.B.1.  Out of the total
consideration, the defendant paid a total of Rs.20,000/- to the
plaintiff on different dates and the said aspect is admitted and
acknowledged both orally and by documents viz., Exs.A5, A.6 and
A.7.  The last payment of Rs.10,000/- was made under Ex.A7 on
31-08-1980.  Ex.A4/Ex.B.1  agreement of sale was executed on
26-10-1973.  The defendant was put in possession of the entire
extent of land covered by the agreement and he erected structures
thereon and had been running the school.  In the devastating
cyclone that hit the area in 1977, the structures of the school being
run by the defendant were damaged, for which the authorities paid
a compensation of Rs.25,000/- to the defendant school.
Thereafter, permanent and semi-permanent structures were raised
on the suit site and admittedly, right from 1973-74, the defendant
is running the school, which has ever been expanding.  The fact
that there was such an agreement is not disputed, on the other
hand, the specific case of the plaintiff is that he has been acting all
along under the influence of the defendant who pretended to be his
well-wisher and had been obtaining his signatures on several
papers and agreements.
14.     A feeble attempt has also been made by the plaintiff to
contend that the agreement of sale in between the parties though
on the face of it is dated 26-10-1973, but in fact the same was
entered into only on 23-05-1978 and it was antedated by more
than five years by the defendant after assuring the plaintiff that the
said antedating is necessary to overcome certain legal hurdles that
may arise.  Apparently, even if there is any antedate of the
agreement, the same was with the consent of the plaintiff.
However, the plea of the plaintiff that the actual agreement took
place only on 23-05-1978 by putting the date as 26-10-1973 is
falsified by an authenticated document viz. Exs.B.20 and B.21,
which are the orders of the Special Officer and Competent
Authority under the Urban Land Ceiling Act, dated 07-10-1980
and the deposition of the plaintiff herein recorded by the said
authority on 25-07-1980. The plaintiff has filed the declaration
under Urban Land Ceiling Act before the competent authorities in
1976 itself and the said file was assigned the number as Case
No.227/76.  The authenticity and genuineness of Ex.B.20 and
Ex.B.21 is neither disputed nor can it be doubted.  It is manifest
there from that in the year 1976, specific reference has been made
by the plaintiff with regard to agreement of sale in respect of the
schedule property with the defendant school.  If the agreement was
only in 1978 as claimed by the plaintiff, the same would not have
been declared by the plaintiff in his declaration filed under ULC
Act in the year 1976 itself.
15.     The contention of the plaintiff that the defendant has used
an old stamp paper available with him for preparation of the
agreement of sale is difficult to be believed for the reason that two
sets of agreements of sale were prepared on 26-10-1973 on stamp
papers which were purchased on 31-01-1973.  There are as many
as 14 stamp papers, 4 of which were valued 0.25 paise each and
the remaining 10 are worth 0.40 paise each.  It is difficult to believe
that the defendant school could have procured the stamp papers of
more than five years old for the purpose of preparing the agreement
of sale in the year 1978.
16.     In addition to the above, on the reverse of the original
agreement of sale, payment endorsements are made, which are
marked as Exs.A5, A.6 and A.7 by the plaintiff evidencing payment
of Rs.1,000/- on 20-09-1976; Rs.7,000/- by cheque on              27-
06-1978; and Rs.10,000/- on 31-08-1980.
17.     The plaintiff contended that the defendant was a lessee in
respect of part of the suit schedule land under lease-deed and he
relied upon Exs.A1 to A3.  The defendant contends that the so-
called lease was in respect of the other property belonging to the
plaintiff but not the site covered by the agreement of sale under
Ex.A4/Ex.B.1.
18.     One more circumstance which belies the contention of the
plaintiff with regard to antedating the agreement of sale is the
evidence of PW.2, who is a witness produced by the plaintiff
himself.  It is categorically asserted by PW.2 in his evidence that he
was informed by D.W.1 about the existence of agreement of sale in
between the plaintiff and the defendant as long back as in June,
1975 itself.  This assertion of the witness produced by the plaintiff
which is reiterated more than once in his evidence is not
challenged, which clearly shows that even prior to June, 1975,
there was an agreement of sale in between the plaintiff and the
defendant as was informed to him by the defendant.
19.     In view of the above, I have no hesitation in confirming the
finding of the learned trial Judge which is based on proper
appreciation of the material on record which is to the effect that in
between the plaintiff and the defendant there was a contract on 26-
10-1973 by and under which an extent of 1890 Sq.Yds., of land
was agreed to be sold by the plaintiff to the defendant @ Rs.27/-
per Sq.Yd., and the registered sale deed was to be executed after
obtaining the requisite clearances from the authorities.
20.     It is also not in controversy that out of the total extent of
1890 Sq.Yds., agreed to be sold under Ex.A4/Ex.B.1, 1260 Sq.Yds.,
of land was originally earmarked for the purpose of park as per the
approved layout obtained by the plaintiff as long back as in the
year 1962.  13 years thereafter, the plaintiff himself entered into
transaction with the defendant for selling the property including
the site which was reserved for park.  It is also borne out from the
record that even though in the layout, this extent of land was
earmarked for park but the same had been put to use by the
defendant for the purpose of running the school right from 1973
till date.  Structures are also raised thereon.  The local authority
attempted to recover possession of the park area, for which the
defendant filed a civil suit and obtained the relief.  It is also
admitted fact that though part of the suit site covered by
Ex.A4/Ex.B.1 was reserved for park, the same has not been put to
use, as such right from 1962 nor was it acquired by the
Municipality for the purpose of developing it into a park.
21.     In this connection, reference may be made to a decision of
the Supreme Court reported in PT.CHET RAM VASHIST v.  
MUNICIPAL CORPN. OF DELHI , the Supreme Court observed as    
under:-
6. Reserving any site for any street, open space, park,
school etc., in a layout plan is normally a public purpose
as it is inherent in such reservation that it shall be used
by the pubic in general.  The effect of such reservation is
that the owner ceases to be a legal owner of the land in
dispute and he holds the land for the benefit of the
society or the public in general.  It may result in creating
an obligation in nature of trust and may preclude the
owner from transferring or selling his interest in it.  It
may be true as held by the High Court that the interest
which is left in the owner is a residuary interest which
may be nothing more than a right to hold this land in
trust for the specific purpose specified by the coloniser in
the sanctioned layout plan.  But the question is, does it
entitle the Corporation to claim that the land so specified
should be transferred to the authority free of cost.  That
is not made out from any provision in the Act or any
principle of law. The Corporation by virtue of the land
specified as open space may get a right as a custody an of
public interest to manage it in the interest of the society
in general.  But the right to manage as a local body is not
the same thing as to claim transfer of the property to
itself.  The effect of transfer of the property is that the
transferor ceases to be owner of it and the ownership
stands transferred to the person in whose favour it is
transferred.  The resolution of the Committee to transfer
land in the colony for park and school was an order for
transfer without there being any sanction for the same in
law.

22.     It shall now be seen as to whether the vendor under an
agreement of sale having voluntarily entered into a contract of sale
can refuse to perform his part of the contract on the ground that
part of the suit site is inalienable, he having no valid title.  This
point has been answered by a Division Bench of our High Court in
a decision reported in M.A.H.KHAN v. A.M.KHADRI .  Paras 10,
13 and 16, which are relevant usefully be extracted as hereunder:-
      The reason for the absence of pleading that the
defendant had no title or had defective title is obvious.  It
is settled law that if a person executes an agreement to
sell property, the vendor is not entitled to put forward, in
a suit for specific performance by the purchaser the
defence that the vendor had no title.  It is open to the
purchaser to set up a defence that the vendor had no title
or has defective title in a suit for specific performance by
the vendor.  But the vendor cannot set up defect in his
own title as a defence in a suit for specific performance by
the purchaser.  In Balushami Aiyar v. Lakshmna Aiyar
(ILR 44 Mad 605 at page 610 = (AIR 1921 Mad 172)(FB) it
was observed:
      Where a person sues for specific performance
of an agreement to convey and simply impleads the
party bound to carry out to the agreement there is
no necessity to determine the question of the
vendors title and the fact that the title which the
purchaser may acquire might be defeasible by a
third party is no ground for refusing specific
performance if the purchaser is willing to take such
title as the vendor has.  But where a party seeking
specific performance seeks to bind the interests of
persons not parties to the contract alleging grounds
which under Hindu law would bind their interests
and enable the vendor to give a good title as against
them and makes them parties, it is difficult to see
how the question as to the right of the contracting
party to convey any interest except his own can be
avoided and a decree passed, the effect of which will
merely be to create a multiplicity of suits.
In this case there is no question of the plaintiff
attempting to bind the interest of persons not parties to
the contract and making them parties, the only party in
this case being the defendant.  The observations of the
Full Bench were followed in Muni Samappa v.
Gurunanjappa (AIR 1950 Mad 90).  In that case, in a suit
on foot of an agreement to sell a house impleading only
the two executants, it was held that there was no
necessity to determine the question of the vendors title
and the fact that the title which the purchaser may
acquire might be defeasible by the sons of defendant was
no ground for refusing specific performance if the
purchaser was willing to take such title as the vendors
had.  In the same manner it is unnecessary in this suit
which is filed only against the defendant who has
executed the agreement and in whose name the patta of
the lands stand, to go into the question whether his title
is defective or whether the property belongs only to the
partnership of which he is a partner.
      We are therefore of the view that the question
whether the property belonged to the partnership and
not to the defendant ought not to have been gone into
and the trial Court below was wrong in refusing specific
performance to the purchaser on the ground that the
vendors title was defective.
      In Silla Chandra v. Ramachandra Sahu (AIR 1964
SC 1789) the Supreme Court had to consider a case
where the manager of a family consisting of himself and
his mother agreed to sell certain property and further
agreed that he and his mother would execute a sale deed
in favour of the purchaser within a period of one year.
On his failing to do so the purchaser filed a suit for
specific performance.  The trial Court held that the sale
was not for legal necessity and therefore, decreed the suit
in part and directed the vendor to execute the sale deed
in respect of his interest.  The purchaser preferred an
appeal to the High Court and during the pendency of the
appeal the mother died.  It was held by the Supreme
Court that the purchaser had interest in the house along
with his mother and on the death of the mother, the
purchaser obtained title to and interest also in that
portion of the house which on a private partition,
partition subsequent to the contract to sell has taken
place between him and his mother and therefore under
Section 18(a) he had to make good his contract out of the
property he acquired subsequent to the contract to sell.
They also held that the expression subsequently to the
sale or lease means subsequent to the contract to sell.
      In view of these decisions of the Supreme Court we
are of the view that Section 18(a) applies to the facts of
the case and the plaintiff is entitled to specific
performance of the suit agreement on this ground also.

23.     The authorities that are referred to above and cited by the
learned Counsel appearing for the respondent/agreement-holder
laid down the proposition that the vendor who enters into an
agreement of sale cannot try to recuse himself from the contract or
refuse to perform his part of the contract on the ground that he has
defective title over the property in question.
24.     In the instant case, the controversy is somewhat different.  It
is not the case where there is defect in title insofar as the
plaintiff/vendor is concerned.  Here is a case where the property
that is agreed to be sold, though originally forming part of the
larger extent of the property of the plaintiff/vendor, but in view of
his carving it out into plots and getting a layout approved as long
back as in 1962, substantial extent of the property that is covered
by the agreement of sale  Ex.A4/Ex.B.1 was earmarked for the
purpose of park to be used by the other plot-holders.  It is not in
controversy that out of 1890 Sq.Yds., of land transacted under
Ex.A4/Ex.B.1, an extent of 1260 Sq.Yds., of land is the land which
was earmarked for public utility viz., the park and subject to that
condition only the local authority has approved the layout in file
No.16 of 1962.  Even if the plaintiff/vendor wants to execute the
sale deed, he cannot do so since that extent of land is inalienable
and there is a legal prohibition.  As per the provisions of the
Andhra Pradesh Municipalities Act, 1965, when any extent of land
is left for park, it has to be utilized for the said purpose alone and
no authority can put it to use for the purpose other than for which
it is shown in the approved layout.  As has been held by the
Supreme Court in Pt.Chet Ram Vashists case (referred 1 supra)
the effect of such reservation is that the owner/plaintiff/vendor
ceases to be a legal owner of the land in dispute and he holds the
land for the benefit of the society or the public in general.  The
Supreme Court further observed that it may result in creating an
obligation in nature of trust and may preclude the owner from
transferring or selling his interest in it.  The interest which is left
in the owner is a residuary interest which may be nothing more
than a right to hold this land in trust for the specific purpose
specified in the sanctioned layout.
25.     Section 184 (2) and (3) of the Andhra Pradesh Municipalities
Act, 1965, is relevant, reads as hereunder:-
      Section 184. Owners obligation to make a
layout and to form a street or road when disposing of
lands as building sites:-
(1)     ..
(2)     The owner of any land shall, before he utilises, sells,
leases, or otherwise disposes of such land or any portion
thereof, as sites for construction of buildings
(a)     make a layout and form a street or road giving
access to sites and connecting them with an existing
public or private street except in the cases where the
sites abut on an existing public or private street;
(b)     set apart in the layout adequate area of land on
such a scale as may be prescribed for a play-ground, a
park, an educational institution or for any other
public purpose.
(3)     Unless the conditions specified in Clauses (a) and (b)
of Sub-section (2) are satisfied, the owner shall not be
entitled to utilise, sell, lease, or otherwise dispose of his
land or any portion thereof for the construction of
buildings.
(4)     ..

6.      Once such vesting of interest is created, even the
Municipality cannot use such land except for the purpose for
which it was set apart.
27.     Section 185 of the Andhra Pradesh Municipalities Act, 1965
requires that any person intending to make a layout and form a
new private street or road shall sent to the Municipal Office a
written application with plan showing the area set apart for public
purpose.
28.     Rule 3 of the Andhra Pradesh Municipalities (Layout) Rules,
1970 requires that every application under Section 185 of the
Andhra Pradesh Municipalities Act, 1965 shall be sent to the
Municipal Office in the form prescribed in Appendix A.  Appendix
A prescribes the form in which an application for layout has to be
made.  The said form requires the person seeking approval of the
layout to give an undertaking not to utilize, sell, lease, or otherwise
dispose of the land as sites for the construction of residential or
non-residential buildings until all the amenities are provided and
further undertakes to handover to the Municipality the lands set
apart for parks and play-grounds, educational institutions or for
any other public purpose under clause (b) of sub-section (2) of
Section 184 of the Act.
29.     What is apparent from the above is that when the owner of a
land seeks approval of the layout and provides therein the land for
the purpose of amenities such as park, play-ground, the said land
cannot be sold, leased or put to use for a purpose other than for
which it was earmarked.
30.     In the instant case, it is not necessary to go into the question
as to whether the vendor/plaintiff was not inclined to execute the
sale deed but is a case where he is unable to perform the part of the
contract in view of the fact that there is legal prohibition from
executing the sale deed in respect of 1260 Sq.Yds., of land, which
is the area earmarked for park in the layout approved as long back
as in the year 1962.
31.     Learned Counsel appearing for the respondent/agreement-
holder vehemently submits that he is prepared to obtain the
registered sale deed for this extent of the land as well at his own
peril knowing the consequences that the said extent of land has
been earmarked for park.  Such an adventurous act on the part of
a vendee/purchaser cannot be countenanced in a case of this
nature where it is not as though that the vendor/seller has a
defective title, but here is a case where the property is inalienable.
Even if the seller is willing to execute the sale deed, he cannot do so
in view of the legal prohibition that the property which he seeks to
alienate vests with the Municipality and the residents of the colony
and only upon his undertaking that he will not sell, lease or utilise
it for any other purpose, the Municipality has approved the layout,
according permission to him to sell plots other than the land
earmarked for public purpose.
32.     Non-performing of the contract or its refusal by a vendor on
the ground of defect in title, is quiet distinct from his inability or
incapacity to perform the contract in view of the legal prohibition
namely the fact that the land proposed to be sold is inalienable in
view of the fact that it having been reserved for park to be utilized
by the public at large.  If such alienations are allowed, the very
purpose of requiring the land to be left for public utilities in the
Municipalities Act and Layout Rules will be defeated.
33.     It is not as though that either the plaintiff or the defendant
(vendor or vendee) were not aware of the fact that the land that is
being included in contract  Ex.A4/Ex.B.1 is the land that is
reserved for park.  Neither of them appeared to have approached
the authorities for de-reserving the said site and even if
approached, it may not be possible for the Municipality to de-
reserve the site earmarked for the park unless the due process of
law is followed. As has already been observed above, even if the
reserved site vests with the Municipality, it has no authority to use
it for any purpose other than for which it was earmarked.
34.     Learned trial Judge has elaborately discussed this aspect
and has come to a categoric conclusion that the extent of 1260
Sq.Yds., of land is inalienable and the plaintiff cannot be called
upon to perform the contract insofar as this extent of land is
concerned.  However, with regard to the remaining extent of 630
Sq.Yds., of land, there was no such legal embargo and since the
contract  Ex.A4/Ex.B.1 is proved, the plaintiff/owner of the land
is liable to execute the sale deed therefor in favour of the
defendant/purchaser/ agreement-holder as has been directed by
the Court below.  In view of the provisions of Section 12 of the
Specific Relief Act, the direction of the learned trial Court that the
defendant/purchaser is liable to pay the entire consideration for
1890 Sq.Yds., of land in order to obtain the sale deed for 630
Sq.Yds., of land cannot be said to be erroneous or onerous.  The
contract is dated 26-10-1973.  The land is situated within the
limits of Vijayawada Municipal Corporation.  The record further
discloses that when an extent of 630 Sq.Yds., of land falls within
Sy.Nos.48 and 49, the remaining 1260 Sq.Yds., of land which is
earmarked for park is in Sy.No.45, 46 and 47.  The rate that is
agreed for at that time was Rs.27/- per Sq.Yd., and for 1890
Sq.Yds., the total cost come to about Rs.51,000/-.  Out of this, the
defendant/purchaser has paid Rs.20,000/- by 1980.  No payments
are made thereafter.  The defendant/purchaser had been utilizing
the land in which he is running a school by raising permanent and
semi-permanent structures.
35.     Incidentally, in the case in hand, the contract is clearly
divisible in two parts.  The land 630 Sq.Yds., is in Sy.Nos.48 and
49 whereas the remaining 1260 Sq.Yds., of land is part and parcel
of the land in Sy.Nos.45, 46 and 47.
36.     Learned Counsel appearing for the defendant/agreement-
holder submits that Vijayawada Municipality has sanctioned
permission to them to construct school on the disputed sites as per
Ex.A20 and having done so, the Municipality issued Ex.A8  Notice
to the plaintiff calling upon the plaintiff to deliver possession of
1260 Sq.Yds., of land reserved for park, against which the
defendant in consultation with the plaintiff filed O.S.No.96 of 1982
and obtained injunction orders.  Further more, in 1977 cyclone the
structures raised by the defendant school were damaged, for which
the Government has paid a sum of Rs.25,000/- towards the loss
sustained by the school.  On the basis of the above, learned
Counsel submits that the execution of the sale deed in respect of
1260 Sq.Yds., of land said to have been earmarked for park cannot
be denied.
37.     The submissions made by the learned Counsel are no doubt
borne out from the record, but it cannot be said that the site which
was reserved for park gets automatically converted or de-reserved
into residential plots or for that matter the plaintiff acquires the
rights of alienation.  Merely because the Municipality issued
building permission to the school as per Ex.A20, it does not mean
that the title of the parties over the site was considered.  Granting
permission to construct on a site, can never be taken as conferring
any authority or recognizing the title of the person seeking the
permission over the site proposed to be utilized for construction.
Similarly, merely because the defendant school in consultation
with the plaintiff filed O.S.No.96 of 1982 against the Municipality
challenging the notice  Ex.A8 and obtained injunction can also
not be taken as changing the nature of the site in dispute vis--vis
the rights of the parties over it.  The fact that the defendant school
was paid a compensation of Rs.25,000/- for the devastation caused
to their structures during the cyclone was only intended to
compensate for the loss of super structures but not in recognition
of the rights of the parties over the land.
38.     The very fact that the owner of land intends to carve out his
vast extent of land into smaller residential plots earmarked certain
areas for public purposes as mandated by the Act and Rules clearly
shows his intention to divest himself of the authority to alienate
the same.  Once such a layout is prepared, submitted and got
approved, it must be taken that such area is required to be used for
common purposes such as park, school, playground, roads etc., 
and the owner cannot subsequently wriggle out of such a
situation.  In the process of obtaining plan, sanction of layout by
showing certain area as common use and reserving it for specific
purposes, it can be said that the owner of the land makes a
promise to the persons interested in acquiring the plot and once
such promise fortifies in an approved layout plan, the person
cannot be permitted to take a different stand subsequently.  When
such are the obligations of the owner of the land, the position of an
agreement-holder from such an owner in respect of the area left for
common use cannot, in any way, be better than that of the owner.
39.     Having carefully analysed the entire material on record and
the impugned Judgment and having heard the submissions of the
learned Counsel appearing for either side, I find myself to be in
agreement with the findings arrived at by the learned trial Court
holding that the defendant/agreement-holder/school is entitled to
seek for a direction to the plaintiff to execute the sale deed in
respect of 630 Sq.Yds., of land in Sy.Nos.48 and 49 subject to
condition that the defendant school should pay the total
consideration of about Rs.51,000/- after deducting Rs.20,000/-
already paid to the plaintiff and by depositing the said amount,
obtain the sale deed.  Consequently, the plaintiff is not entitled to
recover possession of 630 Sq.Yds., of land which is being directed
to be sold to the defendant subject to the above condition.  With
regard to 1260 Sq.Yds., of land in Sy.Nos.45, 46 and 47, the
learned trial Court has directed the defendant to deliver its vacant
possession.  This can however be made subject to condition that
while the plaintiff is entitled to recover possession of 1260 Sq.Yds.,
of land, the same shall be held by the plaintiff subject to the rights
of the Municipality or the residents of the locality to take
appropriate steps strictly in accordance with law to develop the
said site as a park for use of public.  The decision of the learned
trial Court with regard to payment of Rs.300/- per month towards
use and enjoyment of 1260 Sq.Yds., of land by the defendant from
01-02-1981 till the possession is delivered is liable to be sustained.
40.     The cumulative effect of the foregoing discussion is that all
the four appeals filed by the plaintiff and the defendant in
O.S.No.623 of 1982 and O.S.No.110 of 1983 are liable to be
dismissed confirming the Judgment and Decree of the Court below.
41.     In the result, the appeals fail and the same are dismissed but
in the circumstances of the case, there shall be no order as to costs.
      Miscellaneous petitions, if any, pending in these appeals,
shall stand closed.

 _________________  
M.S.K.Jaiswal, J
Date: 7th April, 2017

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