1

FA No.290 of 2017

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Judgment delivered on 27-03-2023

FA No.290 of 2017

{Arising out of judgment and decree dated 30-1-2017 passed by the

Second Additional District Judge, Raipur, in civil suit No.5-A/2011}

1.Shri Ghanshyam Kishor Das (Dead) Through LRs.

1(a) Rajshree Devi Wd/o Late Shri Ghanshyam Kishor Das Aged

About 60 Years.

1(b) Giriraj Kishor Das, S/o Late Shri Ghanshyam Kishor Das,

aged about 40 years.

1(c) Devraj Kishor Das S/o Late Shri Ghanshyam Kishor Das

Aged About 35 Years

No.1(a) to 1(c) are R/o 50, Ward No. 2, Chhuikhadan Bada,

Idgahbhatha, Near Water Tank, Mukut Nagar, Raipur, District

Raipur Chhattisgarh.

1(d) Radha Rani D/o Late Shri Ghanshyam Kishor Das W/o Shri

Vijendra Singh, Aged About 38 Years R/o 8V9, Rukmani Nagar,

Vijyapura, Jamdoli SO Jaipur (Rajasthan).

1(e) Bharti Devi, D/o Late Shri Ghanshyam Kishor Das, W/o

Devendra Singh, aged about 37 years, R/o Bhawani Mansion,

Bazar Para, Chandrapur, Dabhara, Dist. Janjgir-Champa, CG.

2.Ms. Vijay Lakshmi Devi (Dead)

3.Ms. Mahalaxmi Devi D/o Late Shri Rituparna Kishor Das, Aged

About 59 Years, R/o Chhuikhadan, Idgahbhata, Near Water Tank,

Mukut Nagar, Raipur, Chhattisgarh.

---- Appellants

Versus

1.M/s Nagarjuna Construction Company Limited Through

Authorized Representative And Power Of Attorney Holder Shri

Rohit Bhargava S/o Shri R.N. Bhargava, E-15, Sector-2, Avanti

Vihar, Raipur, Tahsil And District Raipur, Chhattisgarh

---- Respondent 2023:CGHC:8451-DB

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FA No.290 of 2017

For Appellants Mr. Anurag Dayal Shrivastava with

Mr. Arvind Shrivastava, Advocates

For Appellant No.1(b) Mr. Sachin Tamrakar, Advocate

For Appellant No.3Mr. Bharat Rajput, Advocate

For Respondent Mr. B.P. Sharma with Mr. Nitesh Jain, Ms.

Sameeksha Gupta and Mr. M.L. Sakat,

Advocates

Hon'ble Mr. Goutam Bhaduri, Ag.CJ &

Hon'ble Mr. N.K. Chandravanshi, J.

CAV Judgment

The following judgment of the Court is delivered by Goutam

Bhaduri, Ag.CJ.

1.Challenge in this appeal is to the judgment and decree dated

30-1-2017 passed by the Second Additional District Judge, Raipur,

in civil suit No.5-A/2011 whereby the suit for specific performance

was decreed in favour of the respondent/plaintiff. Being aggrieved

by such judgment and decree, the present appeal is preferred by the

defendants.

2.The facts, in brief, are that the plaintiff company entered into an

agreement with Ghanshyam Kishor Das (since deceased), who

acted on behalf of his mother Vijay Lakshmi Devi (defendant No.2)

and sister Mahalaxmi Devi (defendant No.3) for sale of land

admeasuing 2.45 acres (1,06,740 sq.ft.) which is a lease hold plot

bearing No.1/2 situated at Western Civil Station 32, Chhui Khadan

Bada, Raipur. The agreement was executed on 8-3-2005. The 2023:CGHC:8451-DB

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FA No.290 of 2017

plaintiff agreed to purchase the suit property at the rate of Rs.320/-

per sq.ft. and a sum of Rs.10.00 lacs was paid towards advance

money by cheque and rest was agreed to be paid in 07 installments.

Plaint averments show that the remaining amount was to be paid on

information being given by the defendant about renewal of lease. It

was further pleaded that the suit property was initially held on lease

for 30 years by the father of Ghanshyam Kishor Das namely;

Rituparna Kishoredas, which was being renewed from time to time.

The plaintiff pleaded that after the death of Rituparna Kishoredas

the defendants being the legal heirs were in possession of the suit

property and despite having specific terms in the agreement that

after renewal of the lease it would be informed to the purchaser,

nothing was informed. The plaintiff, on enquiry, came to know that

lease was renewed and served letter & notice to the defendants to

execute the sale deed, but they did not do it, instead, the plaintiff

came to know that the defendants are trying to sell the land to some

one else. According to the plaintiff, renewal of the lease was

already done on 26-12-2005, but despite that the defendants did not

execute the sale deed, as such the civil suit was filed on 25-2-2008

for specific performance and permanent injunction.

3.(i)In reply to the plaint allegations, defendant No.1

Ghanshyam Kishor Das (since deceased) disowned the agreement

and stated that he was in need of money to perform marriage of

children as such took the amount of Rs.10.00 lacs and signed the

document. At the time of signature of such document, he was not 2023:CGHC:8451-DB

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FA No.290 of 2017

mentally fit. It was further stated that over the said land a building

of 5000 sq.ft. in a dilapidated condition situates, but the same was

not properly shown in the agreement.

(ii)The defendant further stated that when the agreement was

executed by the defendant No.1 at that time no lease was existing

and renewal of the lease was pending with the Nazul Department.

The defendant also stated that the agreement to sell was not

intended to be acted upon and the execution of agreement without

the lease in its existence would show that the agreement could not

be specifically enforced. It was further stated that only the

defendant No.1 Ghanshyam Kishor Das executed the agreement

whereas the defendants No.2 & 3 i.e. mother & sister of the

defendant No.1 had only given power of attorney to look after and

manage the said property, therefore, the agreement itself was not

enforceable.

(iii)Service of notice was also denied and it was stated that

plaintiff was not in a good financial position to pay the balance

amount. It was further stated that the suit property being the

ancestral one, as such the right of defendants No.2 & 3 was also

vested in it. It was also stated that the defendant No.1 was not

entitled to execute any agreement to sell the entire property and

the agreement is void. Defendant No.2 Vijay Lakshmi Devi (since

deceased) also disowned the agreement and stated that she has not

signed the agreement and if some one has signed without her 2023:CGHC:8451-DB

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FA No.290 of 2017

authorisation it would be invalid, as it does not have her consent

and knowledge. Receipt of notice was also denied and prayed for

dismissal of the suit.

4.Based on the pleadings, the learned trial Court framed six issues.

The plaintiff examined Rohit Bhargava (PW-1), signatory to the

agreement and T.N.L. Prasad (PW-2), General Manager (Finance &

Accounts). The defendant No.1 Ghanshyam Kishor Das examined

himself as DW-1 as sole witness. Defendant No.2, mother of

defendant No.1, did not adduce any evidence. Defendant No.3,

sister of defendant No.1, remained ex parte. Learned trial Court

decreed the suit for specific performance in favour of the plaintiff.

Hence this appeal by the defendants.

5.Mr. Anurag Dayal Shrivastava, learned counsel appearing for the

appellant, would submit that :

at the time of execution of alleged agreement the lease

deed was not alive;

the subject property which was alleged to be sold is a

nazul land and after the agreement Ex.P/3 dated 8-3-2005

the lease was renewed from 1992 to 31-3-2022 vide Ex.

P/17 dated 26-12-2005;

learned counsel would further submit that the lease is not

under the provisions of the Transfer of Property Act,

1882 (for short ‘the TP Act’), but was under the 2023:CGHC:8451-DB

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FA No.290 of 2017

provisions of the Government Grants Act, 1895 (for short

‘the GG Act, 1895’), which was earlier known as ‘Crown

Grants Act’. Section 2 of the GG Act, 1895 excludes the

application of the TP Act. Section 3 of the GG Act, 1895

would show that Government grants to take effect

according to their tenor;

learned counsel would also submit that agreement to sell

was governed under Section 54 of the TP Act, which is

about sale of immovable property, but by virtue of

Section 2 of the GG Act, 1895 it overrides the provisions

of the TP Act;

according to learned counsel, agreement is for sale of the

land and not for transfer of the lease hold right so the

nature of land is lessee holds to use, consequently is not a

free hold land to confer ownership;

on the date of agreement since no lease was alive, the

ownership being not vested with Ghanshyam Kishor Das,

he would not be the title holder or owner or have any user

right, therefore, it would be hit by the provisions of

Section 56 of the Indian Contract Act, 1872 (for short

‘the Contract Act’) as it would be impossible to transfer

the ownership and, therefore, would be void; 2023:CGHC:8451-DB

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FA No.290 of 2017

it is further submitted that terms of lease came into effect

after execution of the agreement as the lease was renewed

on 26-12-2005 so when the agreement to sell was

executed on 8-3-2005 the terms of lease was not available

or was in existence, as the renewal came after the

agreement of sale;

subsequent renewal of lease by clause

समनुदेशन

i.e.

assignment, lease hold right could not have been sold

barring the ownership and the specific performance

cannot be granted of the agreement;

the subsequent lease would show that the Government

has the right to re-enter, therefore, the State is the owner

and the ownership is vested with the State and the

contract between the parties are required to be interpreted

literally and the content of thing which is not available in

the contract cannot be added and, therefore, sale or

transfer of ownership cannot be performed;

learned counsel would submit that the trial Court has re-

written the contract by enhancing the price of land and

the Court cannot, in a decree for specific performance,

substitute a new contract of its own;

the other legal heirs also exist, who were the co-

parceners, therefore, the agreement cannot be executed; 2023:CGHC:8451-DB

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FA No.290 of 2017

learned counsel would place reliance upon the decision of

the Supreme Court rendered in the matter of Pradeep Oil

Corporation v Municipal Corporation of Delhi and

Anr.

1

, to submit that in the facts of the case the rights and

obligations of the parties would be governed by the terms

of the provisions of the GG Act, 1895 and when the

limitation is imposed and restrictions upon the grants and

other transfer then the TP Act would have a like

consequence and the defendant No.1, therefore, since was

holding the property under the GG Act, 1895, the

property could not have outrightly sold;

further reliance is placed in the matter of Satyabrata

Ghose v Mugneeram Bangur and Co. and Another

2

to

submit that when something inherent is impossible the

specific performance of the decree cannot be ordered for;

and

by citing the decision rendered in the matter of Ramdas v

Sitabai and Ors.

3

learned counsel would submit that one

co-owner of the property may sell his share, but cannot

place the vendee into possession.

6.Mr. Bharat Rajput, learned counsel appearing for the appellant

No.3, would submit that the suit property being a nazul, the

1AIR 2011 SC 1869

2AIR 1954 SC 44

3AIR 2009 SC 2735 2023:CGHC:8451-DB

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FA No.290 of 2017

ownership belonging to the Government as such the State would be

a necessary party and in absence of State the specific performance

could not be enforced against the State behind the back of it. To

buttress his contention, learned counsel would place reliance in the

matter of State of Uttar Pradesh and Others v United Bank of

India and Others

4

. Learned counsel would further submit that the

order sheet of the trial Court would show that on 25-4-2009 this

appellant (Mahalaxmi Devi) was directed to be noticed again and

subsequently the notice was sent on wrong address as such the

appellant was wrongly proceeded ex parte. He would also submit

that as per Section 17 of the Specific Relief Act, 1963 (for short

‘the Act, 1963’) on the date of agreement i.e. 8-3-2005 the seller

did not have any salable right to the property and had no title,

therefore, the agreement cannot be specifically enforced and the suit

was liable to be dismissed.

7.Mr. B.P. Sharma, learned counsel appearing for the respondent, per

contra, would submit that :

the instant appeal is under Section 96 of the Code of Civil

Procedure, 1908 and the grounds are required to be

considered as per Order 41 Rule 1(2) and beyond those

grounds which are stated in memo of appeal, no argument

can be advanced;

4(2016) 2 SCC 757 2023:CGHC:8451-DB

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with respect to the objection to the non joinder or mis

joinder, learned counsel would submit that such objection

should have been taken at the first instance as per Order 1

Rule 13 of the CPC and in absence thereof it would be

deemed to have been waived;

learned counsel would further submit that Section 6 of the

TP Act postulates that what property can be transferred

which include that the property of any kind may be

transferred, except the exception carved out in Section 6,

therefore, the assignment of lease can be made;

learned counsel would also submit that as per Section 7 of

the TP Act every person competent to contract and

entitled to transferable property, or authorised to dispose

of transferable property not his own, is competent to

transfer such property to the extent and in the manner,

allowed and prescribed by law and option of transfer

would take effect by virtue of Section 8 of the TP Act and

it would be a legal to hold the lease hold right can be

transferred;

learned counsel would also submit that as per Section 38

of the TP Act, transfer of the immovable property can be

made and the ostensible owner can also sale the right; 2023:CGHC:8451-DB

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FA No.290 of 2017

according to the learned counsel, transfer be acquired in

the property transfer and such transfer shall, at the option

of the transferee, operate on any interest which the

transferor may acquire in such property at any time

during which the contract of transfer subsists;

referring to the agreement (Ex.P/3), learned counsel

would submit that the purchaser knew the fact about

expiry of the lease and the transferor were in possession,

consequently, the right of renewal was pending, therefore,

knowing full well the sale deed was not executed at the

time of agreement;

learned counsel would submit that the defence of the

defendant No.1 was only to the extent that it was security

for loan along with mental disbalance, but those facts

have been negated by the finding of the trial Court for

which no cross appeal is pending;

referring to the statement of PW-1 Rohit Bhargava and

the suggestion given to him, learned counsel would

submit that they were aware of the fact that the lease had

expired and it was the duty of the seller to raise a

boundary wall, but the same was not carried out,

therefore, the seller failed in his obligation to perform the

part of contract and, therefore, time would not be essence

of contract; 2023:CGHC:8451-DB

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FA No.290 of 2017

he would submit that from the statement of PW-2 T.N.L.

Prasad it is manifest that sufficient amount exists in the

company to pay the sale consideration, but the seller since

failed to perform their part of contract, the sale deed

could not be executed;

he would next submit that evidence would show that the

seller was trying to sell the property to third person,

therefore, the suit was filed and the learned trial Court

instead of Rs.320/- per sq.ft. enhanced to Rs.580/- per

sq.ft. on application of PRT (Price, Rate of Interest &

Time) with interest, therefore, the equity have been

balanced;

learned counsel would submit that as per Section 10 of

the TP Act, certain condition restraining the alienation of

property can be done alone;

referring to Sections 181 and 182 of the Chhattisgarh

Land Reven Code, 1959 (for short ‘the CGLRC’) the

counsel would submit that these statutes govern the terms

of Government lessees and no ambiguity can be attached

when the lease hold rights are subjected to sale; and

learned counsel further refers to Ex.D/1 & Ex.D/2, the

power of attorney, to submit that absolute power was

given to the defendant No.1 Ghanshyam Kishor Das to 2023:CGHC:8451-DB

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FA No.290 of 2017

sell the land and accordingly he executed the agreements,

therefore, the order of the learned trial Court is well

merited, which do not call for any interference.

8.We have heard learned counsel appearing for the parties at length,

perused the pleadings and the evidence available on record.

9.The agreement for sale is Ex.P/3 and is dated 8-3-2005. The

agreement shows that the suit property was agreed to be sold at the

rate of Rs.320/- per sq.ft. for an area of 1,06,740 sq.ft. (1,06,740

sq.ft. x Rs.320/- per sq.ft. = Rs.3,41,56,800/-). An amount of

Rs.10.00 lacs was paid to the seller by cheque as an advance and

the balance amount was agreed to be paid on or before the date of

registration and 07 subsequent installments were fixed i.e. after

renewal of lease Rs.31,56,800/- and thereafter, Rs.50.00 lacs each

on the subsequent dates. The agreement purports that the vendor

shall complete the formalities of renewal of lease of said property

and shall inform about the same to the vendee by registered post.

The agreement also purports that before further payment is made

the seller Ghanshyam Kishor Das, who was then alive, would

obtain a fresh registered general power of attorney of seller No.3,

Mahalaxmi, who is daughter of Rituparna Kishoredas. Perusal of

the said agreement would show that at the time of execution of the

agreement, the suit property, which is a lease hold property, known

as ‘Bada of Chhuikhadan’. Further perusal of the agreement shows

that three sellers have stated that they have obtained succession 2023:CGHC:8451-DB

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FA No.290 of 2017

certificate after death of Rituparna Kishoredas. The earlier lease

deed is not on record. It is not in dispute that at the time of

execution of sale agreement, the earlier lease had expired in 1992.

10.The lease of Nazul land was earlier governed by the GG Act, 1895.

Sections 2 & 3 very specifically provide that the provisions of the

TP Act do not apply to Government lands. Sections 2 & 3 read as

under :

“2. Transfer of Property Act, 1882, not to

apply to Government grants.--Nothing in

the Transfer of Property Act, 1882, contained

shall apply or be deemed ever to have

applied to any grant or other transfer of land

or of any interest therein heretofore made or

hereafter to be made by or on behalf of the

Government to, or in favor of, any person

whomsoever; but every such grant and

transfer shall be construed and take effect as

if the said Act had not been passed.

3. Government Grants to take effect

according to their tenor.--All provisions,

restrictions, conditions and limitations over

contained in any such grant or transfer as

aforesaid shall be valid and take effect

according to their tenor, any rule of law,

statute or enactment of the Legislature to the

contrary notwithstanding.“

11.The lease of subject land was subsequently renewed on 26-12-2005

(Ex.P/17). The new lease was granted in the name of Ghanshyam

Kishor Das, S/o Rituparna Kishoredas and such name is in Nazul

Khasra (Ex. P/18) as the sole lessee. Further the condition of the

renewal lease deed is governed by Sections 181 & 182 of the

CGLRC, which read as under : 2023:CGHC:8451-DB

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181.Government lessees..-(1) Every

person who holds land from the State

Government or to whom a right to occupy

land is granted by the State Government or to

Collector and who is not entitled to hold land

as a bhumiswami shall be called a

Government lessee in respect of such land.

(2)Every person who at the coming into

force of this Code-

(a) holds any land in the Madhya

Bharat region as an ordinary tenant

as defined in the Madhya Bharat

Land Revenue and Tenancy Act,

Samvat 2007 (66 of 1950); or

(b) holds any land in the Vindhya

Pradesh region as a special tenant as

defined in the Vindhya Pradesh Land

Revenue and Tenancy Act, 1953 (III

of 1955), or as a gair haqdar tenant

any grove or tank or land which has

been acquired or which is required

for Government or public purposes;

or

(c) holds any land from the State

Government in the Sironj region as a

gair khatedar tenant as defined in the

Rajasthan Tenancy Act, 1955 (3 of

1955);

shall be deemed to be a Government lessee

in respect of such land.

(3) x x x

182. Rights and liabilities of a

Government lessee. - (1) A Government

lessee shall, subject to any express

provisions in this Code, hold his land in

accordance with the terms and conditions of

the grant, which shall be deemed to be a

grant within the meaning of the Government

Grants Act, 1895 (XV of 1895).

(2) A Government lessee may be ejected

from his land by order of a Revenue Officer 2023:CGHC:8451-DB

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FA No.290 of 2017

on one or more of the following grounds,

namely :-

(i) that he has failed to pay the rent

for a period of three months from the

date on which it became due; or

(ii) that he has used such land for

purposes other than for which it was

granted; or

(iii) that the term of his lease has

expired; or

(iv) that he has contravened any of

the terms and conditions of the

grant :

Provided that no order for ejectment of a

Government lessee under this sub-section

shall be passed without giving him an

opportunity of being heard in his defence.

12.Perusal of the aforesaid provisions would show that a person who

holds land from the State Government or to whom a right to occupy

land is granted by the State Government or to Collector and who is

not entitled to hold land as a bhumiswami shall be called

Government lessee and terms of lease would be governed by the

express provisions of the Code in accordance with the terms and

conditions of the “grant” which shall be deemed to be a grant within

the meaning of GG Act, 1895. Perusal of the subsequent lease

granted would show that the ownership right was not granted and

clause 6 of the lease shows that it contains the word

समनुदेशन

i.e.

assignment and for such assignment certain conditions are attached

to be followed. The lease deed also engrafts that the Government

can re-enter into any part and parcel of the sale of land when it is

felt that there is some breach of promise of conditions. 2023:CGHC:8451-DB

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13.The earlier lease deed is not on record. The subsequent lease when

is read along with the agreement, it shows that Ex.P/3 is an

agreement for sale of a nazul land of permanent lease along with the

house built upon it. The earlier lease was under GG Act, 1895.

The Supreme Court in the matter of Azim Ahmad Kazmi and Ors.

v State of U.P. and Anr.

5

, has referred to its earlier decision

rendered in the matter of The State of U.P. v Zahoor Ahmad and

Another

6

wherein it has been held that Section 3 of the GG Act,

1895 declares the unfettered discretion of the Government to

impose such conditions and limitations as it thinks fit, no matter

what the general law of the land be. The meaning of Sections 2 & 3

of the GG Act, 1895 is that the scope of that Act is not limited to

affecting the provisions of the TP Act only. The Government has

unfettered discretion to impose any conditions, limitations, or

restrictions in its grants, and the right, privileges and obligations of

the grantee would be regulated according to the terms of the

grant, notwithstanding any provisions of any statutory or common

law.

14.Likewise, the Supreme Court in the matter of Pradeep Oil

Corporation (supra) observed at para 17 as under :

17.In the present case grant has been

made by the President of India in terms of

Section 2 of the Government Grants Act,

1895 and the Transfer of Property Act, 1882

may have little bearing in the instant case.

The former, i.e. the Government Grants Act,

52012 AIR SCW 4204

6AIR 1973 SC 2520 2023:CGHC:8451-DB

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1895 being a special statute would prevail

over the general statute, i.e. the Transfer of

property Act, 1882. Accordingly, the rights

and obligations of the parties would be

governed by the terms of the provisions of

Government Grants Act, 1895 whereunder

the Government is entitled to impose

limitations and restrictions upon the grants

and other transfer made by it or under its

authority.

15.On the date of agreement for sale dated 8-3-2005, admittedly the

lease was not in existence which rendered the earlier lessee as only

occupant. It was renewed on 26-12-2005. Earlier at the time of

agreement of sale, three vendors were shown as seller. They are the

legal heirs of Rituparna Kishoredas i.e. son, wife & daughter.

Therefore, on the date of agreement the vendors did not have any

right which can be assigned as the lease granted under GG Act,

1895 had expired long back before execution of sale agreement.

Since at the time of agreement, the GG Act, 1895 was in existence,

which did not confer any ownership right on sellers, after expiry of

lease the seller could not assign or transfer any right to vendee as

corpus of property reverted back to Government on expiry of lease.

16.The appellant being not the owner on the date of agreement cannot

be asked to transfer the ownership by specific performance of the

agreement dated 8-3-2005 and a party cannot claim anything more

than what is covered by the terms of contract, for the reason that

contract is a transaction between the two parties and has been

entered into with open eyes and understanding the nature of

contract. Thus, contract being a creature of an agreement between 2023:CGHC:8451-DB

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FA No.290 of 2017

two or more parties, has to be interpreted giving literal meanings

unless, there is some ambiguity therein.

17.Further through out the entire litigation, the State was not arrayed as

a party in the suit or appeal. The agreement when was executed,

the right of the vendors was not in existence and the State was

never made a party. It being a nazul property, under the GG Act,

1895, the settlement of transaction in absence and behind the back

of the State would be a suppression of material facts. The State

being not arrayed as a party, it is not known that when subsequent

renewal of lease was under consideration with State whether it was

brought to the notice of State that proposed lessee had already

entered into a sale agreement to transfer the lease in favour of third

party. Therefore, in the like nature of cases where nazul lands are

involved, State would be necessary party as the grant of lease by

State cannot be used as a wind fall for the lessee to monetize alone.

The State being not a party to litigation, the State side remained

unanswered.

18.The Supreme Court in the matter of State of Uttar Pradesh and

Others v United Bank of India and Others {(2016) 2 SCC 757}

held that when no interest is subsisting decree cannot be obtained at

the back of the title holder. In the said decision, the Supreme Court

held thus at para 46 :

“46…...without appreciating the fact that the

Bank has not having any subsistence

(sic subsisting) interest in the leasehold 2023:CGHC:8451-DB

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FA No.290 of 2017

property obtained a mortgage decree behind

the back of the State being the paramount

title holder applied the doctrine of legitimate

expectation.”

Consequently, the decree obtained by the respondent on the basis of

agreement, in absence and behind the back of the State of

Chhattisgarh could not have been enforced against the State.

19.Therefore, no interest was subsisting on the date of agreement with

the vendor Ghanshyam Kishor Das as the property in hold was

under the GG Act, 1895. The said Act subsequently stood repealed

by the Parliament in the Repealing and Amending (Second) Act,

2017 (Act No.4 of 2018) on 5-1-2018. Therefore, at earlier time

transaction of the property was being governed by the GG Act,

1895 and after expiry of lease the property reverted back to the

Government, the vendor could not have executed the agreement for

sale of such property and it would become an impossible nature for

the decree to be followed by a specific performance for directing

execution of sale deed.

20.During pendency of this appeal, the vendor Ghanshyam Kishor Das

died and his legal heirs were brought on record. Ghanshyam Kishor

Das since had no title on the date of agreement it cannot relate back

in favour of the legal heirs.

21.The Supreme Court in the matter of Satyabrata Ghose (supra) held

as under at para 9 : 2023:CGHC:8451-DB

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FA No.290 of 2017

9. The first paragraph of the section lays

down the law in the same way as in English.

It speaks of something which is impossible

inherently or by its very nature, and no one

can obviously be directed to perform such an

act. The second paragraph enunciates the law

relating to discharge of contract by reason of

supervening impossibility or illegality of the

act agreed to be done. The wording of this

paragraph is quite general, and though the

illustrations attached to it are not at all

happy, they cannot derogate from the general

words used in the enactment. This much is

clear that the word "impossible" has not been

used here in the sense of physical or literal

impossibility. The performance of an act

may not be literally impossible but it may be

impracticable and useless from the point of

view of the object and purpose which the

parties had in view; and if an untoward event

or change of circumstances totally upsets the

very foundation upon which the parties

rested their bargain, it can very well be said

that the promisor finds it impossible to do the

act which he promised to do.

22.Further more the learned Court below in its judgment has applied

the formula of PRT (Price, Rate of Interest & Time) to increase the

rate from Rs.320/- per sq.ft. to Rs.580/- per sq.ft.

23.In view of foregoing discussions, when the vendor did not have any

title on the date of agreement and in absence of State being the

party, the land being nazul such formula cannot be set into motion

as it would inculpate the interest of State and would amount to

creation of a contract by an order of the Court even against the

State. Looking into the issue from different angle, the purchaser/

respondent cannot have a better title than what vendor had. The

property was initially hold by Rituparna Kishoredas under the GG 2023:CGHC:8451-DB

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FA No.290 of 2017

Act, 1895 and not by Ghanshyam Kishor Das, therefore, one of the

co-sharer also could not have put vendor in possession of specific

part of the property.

24.Accordingly, we are of the view that no decree for specific

performance can be granted and the impugned judgment and decree

deserves to be set aside. It is ordered.

25.The facts would further show that the respondent has paid an

amount of Rs.10.00 lacs on 8-3-2005. No efforts have been made

by Ghanshyam Kishor Das or his legal heirs for return of the said

amount. Since we have declined to issue the decree for specific

performance, therefore, at the same time it may not lead to unjust

enrichment to the appellant. Unjust enrichment could be defined as

a benefit obtained from another, not intended as a gift and not

legally justifiable, for which the beneficiary must make restitution

or recompense.

26.The Supreme Court in the case of Indian Council for Enviro-legal

Action Versus Union of India and others

7

discussed different case

laws. Few of the paras i.e. para Nos.152, 153, 154, 155 & 156 are

reproduced hereinbelow:-

152. Unjust enrichment' has been defined by

the court as the unjust retention of a benefit

to the loss of another, or the retention of

money or property of another against the

fundamental principles of justice or equity

and good conscience. A person is enriched if

he has received a benefit, and he is unjustly

7(2011) 8 SCC 161 2023:CGHC:8451-DB

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FA No.290 of 2017

enriched if retention of the benefit would be

unjust. Unjust enrichment of a person occurs

when he has and retains money or benefits

which in justice and equity belong to

another.

153. Unjust enrichment is "the unjust

retention of a benefit to the loss of another,

or the retention of money or property of

another against the fundamental principles of

justice or equity and good conscience." A

defendant may be liable "even when the

defendant retaining the benefit is not a

wrongdoer" and "even though he may have

received [it] honestly in the first instance."

(Schock v. Nash (732 A 2d 217) Delware

1999), 232-33.

154. Unjust enrichment occurs when the

defendant wrongfully secures a benefit or

passively receives a benefit which would be

unconscionable to retain. In the leading case

of Fibrosa Spolka Akcyjna v. Fairbairn

Lawson Combe Barbour Ltd. [1942] 2 All

ER 122, Lord Wright stated the principle

thus :

"....(A)ny civilized system of law is

bound to provide remedies for cases of

what has been called unjust enrichment

or unjust benefit, that is, to prevent a

man from retaining the money of, or

some benefit derived from another

which it is against conscience that he

should keep. Such remedies in English

law are generically different from

remedies in contract or in tort, and are

now recognized to fall within a third

category of the common law which has

been called quasi-contract or

restitution."

155. Lord Denning also stated in Nelson v.

Larholt, [1947] 2 All ER 751 as under:-

"…...It is no longer appropriate,

however, to draw a distinction between

law and equity. Principles have now to

be stated in the light of their combined

effect. Nor is it necessary to canvass the 2023:CGHC:8451-DB

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FA No.290 of 2017

niceties of the old forms of action.

Remedies now depend on the substance

of the right, not on whether they can be

fitted into a particular frame-work. The

right here is not peculiar to equity or

contract or tort, but falls naturally

within the important category of cases

where the court orders restitution, if the

justice of the case so requires."

156. The above principle has been accepted

in India. This Court in several cases has

applied the doctrine of unjust enrichment.

27.Since the money is in the hold of Ghanshyam Kishor Das or his

legal heirs, we are of the opinion that the respondent has a right of

restitution and it cannot be deprived of the said amount. The

Supreme Court has observed that the restitution and unjust

enrichment have to be viewed in two stages i.e. Pre-suit and post-

suit. In the pre-suit position the amount is not returned and also in

the post-suit the amount is still with the appellants. If we look into

other angel that the appellant has borrowed the money from the

nationalized bank, what the bank would demand. Therefore, by

applying the principles of justice and equity and not to make it as an

incentive for the appellants and to implement in practical terms in

concept of time, value and money, we deem it appropriate to grant

an interest @ 6 % p.a. from 8-3-2005 at the interval of three years.

Meaning thereby interest paid on principle and the previously

accumulated interest would be calculated at an interval of a period

of three years as principal sum. The appellants 1(a) to 1(e) are

since inherited the liability and assets of deceased Ghanshyam

Kishor Das they would be liable to pay jointly and severally to the 2023:CGHC:8451-DB

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FA No.290 of 2017

respondent within a period of sixty days from the date of the

judgment.

28.In the result, the appeal is allowed in part, leaving the parties to

bear their own cost(s).

29.A decree be drawn accordingly.

Sd/- Sd/-

(Goutam Bhaduri) (N.K. Chandravanshi)

Acting Chief Justice Judge

Gowri 2023:CGHC:8451-DB

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