Judgment:
C.L. Pangarkar, J.
1. Rule. Returnable forthwith.
2. Heard finally with consent of parties.
3. This application for review is filed by the original respondent No. 1 in Second Appeal No. 121 of 1999. A few facts maybe narrated as follows:
4. One Sadashiv Kale instituted a suit for specific performance of contract against one Raghoba Dukre. The said contract was entered into on 30.12.1981. The contract related to sell of agricultural field bearing No. 95 having an area of 16.18 acres. The price was settled at Rs. 16,000/- and Raghoba received Rs. 5000/-. Since Raghoba did not execute the sale deed as agreed Sadashiv kale instituted a suit bearing No. 319 of 1982 in the Court of Civil Judge Senior Division Nagpur. The said suit came to be decided on 08.03.1988 and the Court found that plaintiff Sadashiv was entitled to a decree for specific performance. Court also directed the plaintiffs to apply to the concerned authority under Section 89 of the Bombay Tenancy And Agricultural Lands Act for permission to purchase the agricultural land and he further directed the defendants to execute the sale deed upon obtaining such permission. During the pendency of the suit Raghoba died and one Vithoba Dukre was brought on record as legal representative of Raghoba. During the pendency of the said suit the plaintiff had also filed an application for adding Bhagwan Kale as defendant No. 2 in the suit since the plaintiff had come to know that Raghoba had left behind a will in respect of the suit property in favour of defendant No. 2. Defendant No. 2 Bhagwan Kale preferred an appeal before the District Judge. The District Judge found that there was a contract of sale between the parties but he refused decree for specific performance on the ground that plaintiff had no prior permission to purchase the agricultural land. During pendency of this appeal original plaintiff Sadashiv died and his heirs were brought on record. They preferred Second Appeal in the High Court. The said appeal was admitted in the High Court on the following substantial question of law:
Whether obtaining permission under Section 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 for purchase of agricultural land is prerequisite condition for passing a decree of specific performance of contract of sale?
This Court found that no prior permission is necessary and such permission can be obtained even after decree for specific performance is passed and this Court also found that there was already a permission.
5. During the pendency of Second Appeal original defendant No. 2 Bhgwan Kale also died and his heirs were brought on record. Bhagwan Kale's heirs have preferred this review application.
6. I have heard learned Counsel for the applicants and the respondents.
7. Review is sought mainly on two grounds. First being discovery of the new evidence in the form of a will said to be executed by Raghoba in favour of Bhagwan Kale and second being a decision in Second Appeal in ignorance of decision of the Supreme Court in Gundaji Satwaji Shinde v. Ramchandra Bhikaji Joshi : A.I.R. 1979 Supreme Court 653.
8. The suit was instituted against one Raghoba for specific performance of contract. We have seen that the plaintiff joined the defendant No. 2 Bhagwan i.e. the predecessor of the present applicants as defendant No. 2 as the plaintiff had come to know that Raghoba had left a will in favour of defendant No. 2 Bhagwan when Bhagwan appeared in the civil suit and filed Written Statement claiming that such a will has been executed in his favour. After the decree was passed for specific performance against Vithoba as well as Bhagwan it was Bhagwan who preferred appeal to the District Judge. He succeeded in that appeal but the plaintiff and the heirs of original plaintiff preferred Second Appeal and as already stated the said appeal was admitted on the said substantial question of law. We have also seen that Appellate Court has held in favour of plaintiff that there was a contract of sale. The plaintiff was ready and willing to perform his part of contract. A decree for specific performance could be passed. It may be mentioned that first appellate Court also held in favour of the plaintiffs with regard to the existence of contract of sale and the readiness and willingness of the plaintiffs. The decree was refused on the ground of want of permission. Since the Second Appeal was admitted on the question of permission to purchase the land there was no other ground on which appeal could be decided. It in fact makes no difference if defendant No. 2 is the exclusive owner or defendant No. 1 was the exclusive owner. Both are claiming through Raghoba the original defendant. It is found by all Courts in fact that there was an agreement and Raghoba had agreed to sale the suit field. Hence even if Raghoba had executed a will and defendant No. 2 gets the property, the defendant No. 2 would be bound to convey the same to the plaintiff due to the decree passed against him. Production of additional evidence would not make much difference. Though that may make difference between the two defendants.
9. I would however consider if the additional evidence in the form of will could be produced at this stage and could be admitted at this stage. The provision of Rule 27 of Order 41 Civil Procedure Code reads as follows:
Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-(a) the Court from whose decree the the appeal is preferred has refused to admit evidence which ought to have been admitted, or
[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
The contents of the application appears to be one based on Clause (aa). The case cannot certainly fall under the said clause.
Defendant No. 2 Bhagwan was precisely added as defendant in the suit because plaintiff had found that entry of his name in the revenue record was taken on the basis of will. Defendant Bhagwan in his Written Statement claimed existence of the will in his favour. The suit was tried and decided on 08.03.1988, First Appeal was decided on 27.08.1998, Second Appeal was decided on 02.05.2008. For almost 25 years the defendant No. 2 never cared to file it on record though its existence was very well known to the defendant No. 2 Bhagwan. It appears from the document filed with the review application that the defendant No. 2 was even aware as to who was in custody of alleged will. Along with the additional affidavit the present applicants have filed certain documents, one of such document is a copy of the application made by Bhagwan to the Tahsildar to mutate his name in place of deceased Raghoba on the basis of will executed by Raghoba. This application is dated 17.02.1983. The contents of this application reveal that Bhagwan made a request to the Tahsildar to call Shri Pathak along with the will and to verify the correctness. Thus in 1983 deceased Bhagwan was aware that the will was in possession of Shri Pathak, yet till 2008 neither Bhagwan nor his heirs ever tried to procure the will and produce it. There is no explanation why the will could not be brought from Shri Pathak and he could not be called with it in the Court as a witness. For these reasons the production after lapse of 25 years cannot be allowed.
10. The next ground that is urged is non consideration of decision in : A.I.R. 1979 Supreme Court 653. The said decision deals with the question whether the person is or is not an agriculturist needs to be referred to the Tahsildar and when?
Submission need not be considered for three reasons. First, this decision was never cited when the appeal was heard. Second; this is not the ground raised in the review application, last and third ground is that the decision upon which this Court has held that no prior permission is required is considered in the decision reported in Asudamal Laxmandas Sindhi v. Kisanrao Wamanrao Dharmale and Ors. : 2004(2) Bombay Case Reporter 361 rendered by this Court. After consideration of decision in Asudamal's case I cannot take a different view in the matter at all. I would in fact be bound by decision in Gundaji's case. In view of this I do not find any substance in the review application the same is dismissed.