Judgment:
Janardan Sahai, J.
1. A suit for specific performance of a contract of sale of land measuring 6 bighas 5 bisiuas 10 bisioansis dated 2.11.1985 and alternatively for refund of money was filed by M/s. Cevera Sehkari Avas Samiti Ltd., Agra (hereinafter called the 'Society') against Charan Singh, Mohan Singh and Bhagwati. The trial court dismissed the suit. The appeal against the decree filed by the Society has been allowed for the relief of refund of money with interest at 9% per annum but has been dismissed in respect of the relief for specific performance.
2. Second Appeal No. 957 of 2001 has been filed by the society while Second Appeal No. 1152 of 2002 has been filed by the defendants Charan Singh and others.
3. The settled consideration under the contract of sale dated 2.11.1985 was Rs. 3,26,000 out of which an advance of Rs. 59,000 was paid at that time and it was agreed that the defendants would obtain permission under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter called the 'Ceiling Act') and Income Tax, Clearance. The sale deed was to be executed within one and half years. The defendants admitted execution of the agreement to sell but their case was that the consideration was settled at the rate of Rs. 1,02,000 per bigha. It was also alleged that the time was the essence of the contract and that the suit was barred by limitation as it was filed on 4.12.1990. It was also alleged that the land in dispute had been declared as excess land under the provisions of the Ceiling Act and the agreement of sale was void as it offends the provisions of Section 5 (3) thereof. It was denied that the Society was ready or willing to perform its part of the contract.
4. The trial court decided all the issues in favour of the plaintiff except one. The suit was dismissed on the ground that the agreement to sell was void being in contravention of the provisions of Section 5(3) of the Ceiling Act. The lower appellate court has decided this issue in favour of the plaintiff society. The relief for specific performance, however, was refused on the ground of delay. The Second Appeal No. 951 of 2001 filed by the plaintiff society was admitted on the following questions of law :
(1) Whether without attribiiting any delay on the part of the plaintiff the Court below was justified in refusing the relief of specific performance to him without considering that such delay has been caused because of the conduct of the defendants/ respondents which was established and apparent on the face of the record?
(2) Whether delay in the trial of suit alone can be made a ground to refuse the relief of specific performance?
(3) Whether time consumed in the process of the Court can be the basis to invoke the Sections 20 and 21 of the Specific Relief Act?
(4) Whether defendants/ respondents who had repudiated the contract for sale were entitled to plead delay and for the grant of alternative relief to the plaintiff as pleaded by them during the course of arguments?
5. The Second Appeal No. 1152 of 2002 of the defendants Charan Singh and others has been admitted. The application for permitting certain additional questions was allowed on 24.9.2004. Detailed order in this regard is contained in the order sheet dated 24.9.2004 which is as follows :
'At the time of admission of the appeal substantial questions of law were not framed.
I have heard Sri Vinod Sinha, learned counsel for the appellant and Sri Shashi Nandan, learned counsel for the respondents.
The following substantial questions of law stated as questions A, B, C and E in the application framing additional questions filed today shall be the substantial questions of law on which argument may be advanced.
Put up on 29.9.2004 for further argument.'
6. The following substantial questions of law framed in the application were allowed to be raised.
(a) Whether the finding recorded by lower appellate court that agreement to sale was not hit and prohibited by provisions of Section 5(3) of Urban Land (Ceiling and Regulation) Act, 1976 is sustainable inasmuch as finally Notification under Section 10(1) of the Act was published on 17.10.1998?
(b) Whether the findings given by lower appellate court that agreement to sale will not come within ambit of Sections 5(3) of the Act is sustainable?
(c) Whether the lower appellate court was correct in holding that suit was maintainable, when the suit was not filed within the time prescribed under agreement to sale dated 2.11.1985 and was also not filed within period of 1-1/2 year from the notice dated 2.2.1988 sent by defendant to plaintiff?
(d) Whether an agreement to sale which was invalid and illegal being contrary to provisions of Ceiling Act could be said to be validated in view of repeal of Ceiling Act?
7. I have heard Shri Shashi Nandan counsel for the plaintiff society and Shri Vinod Sinha counsel for defendants Charan Singh and others.
8. The question Nos. (a), (b) and (e) in Second Appeal No. 1152 of 2002 relate to the effect of the Ceiling Act upon the agreement and can therefore be decided together. It appears that at the time when the agreement of sale was executed there was already an order under the Ceiling Act declaring a substantial portion of the land, if not the whole of it, as excess. It appears that the original order declaring the excess was an ex-parte one and was subsequently set aside with a direction to initiate fresh proceedings from the stage of Section 8(3) of the Ceiling Act. On 17.10.1998 an order was passed under Section 10(1) of the Ceiling Act declaring the land as excess. Before the possession of the land could be delivered to the State, the Ceiling Act was repealed and consequently the appeal of the Society against the order declaring the land as excess was dismissed as abated on 14.7.1999. The suit was filed on 4.12.1990. The trial court dismissed the suit on 21.5.2000. Before the decree of the trial court was passed, the Ceiling Act had already been repealed.
9. Section 5(3) of the Ceiling Act reads as follows :
'In any State to which this Act applies in the first instance and in any State which adopts this Act under Clause (1) of Article 252 of the Constitution, no person holding vacant land in excess of the ceiling limit immediately before the commencement of this Act shall transfer any such land or part thereof by way of sale, mortgage, gift, lease or otherwise until he has furnished a statement under Section 6 and a notification regarding the excess vacant land held by him has been published under Sub-section (1) of Section 10 ; and any such transfer made in contravention of this provision shall be deemed to be null and void.'
10. The lower appellate court held that a mere agreement to sell was not a transfer within the meaning of Section 5(3) of the Ceiling Act and was therefore not void. Shri Vinod Sinha counsel for the defendant Charan Singh and others submitted that the view taken by the lower appellate court is erroneous in law. He relied upon a decision of the Bombay High Court in Vinayakrao v. State of Maharashtra, : AIR1976Bom10 in which an agreement of sale was held to be a transfer within the meaning of Section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. This conclusion was arrived at by interpreting the word 'otherwise' used in the section, which was in almost similar terms as Section 5(3) of the Ceiling Act to cover an agreement of sale.
11. The decision in Kanubhai Sankalchand Patel v. Nayankuni Cooperative Housing Society Ltd., : AIR1978Guj140 was also relief upon by Shri Vinod Sinha. In this case the provisions of Section 5(3) and Section 42 of the Ceiling Act were interpreted. The agreement of sale had been executed before the Ceiling Act. The Gujarat High Court relied upon the provisions of Section 42 of the Ceiling Act which gives overriding effect to the provisions of the Act over amongst others all agreements and an agreement of sale being also an agreement it was held that in view of Section 5(3) read with Section 42 of the Ceiling Act the agreement of sale could not be enforced. Shri Shashi Nandan the counsel for the plaintiffs society however, sought to distinguish the Bombay High Court decision on facts on the ground that in that case there was transfer of possession and also payment of the entire consideration. He relied upon the definition of a contract of sale in Section 54 of the Transfer of Property Act and cited certain decisions of the Apex Court that an agreement to sell does not create any interest or charge on the property vide Pyare Lal v. Hori Lal , : [1977]2SCR915 . It was submitted that the Gujarat case was wrongly decided. Having heard the counsel for the parties I am of the view that on the terms of the agreement of sale in the present case there was no breach of the provisions of Section 5(3) of the Ceiling Act. It was stipulated in the agreement itself that the permission under the Ceiling Act would be obtained before the sale deed. There was no agreement to transfer the land in its status as surplus land. The agreement also stipulates that possession would be transferred when the sale deed is executed. Section 20 of the Ceiling Act empowers the State Government to exempt any land considering its location, the purpose for which it is proposed to be used and other relevant factors from the provisions of Ceiling. It is also open to the competent authority under Section 21 of the Ceiling Act to declare any land not to be excess land on being satisfied upon a declaration made by the holder of the land within the specified time that the land would be used to construct small dwelling units. That apart it is not in dispute that the possession of the excess land remained with the defendants and was never transferred to the State and no notification under Section 10(3) of the Ceiling Apt, which would have had the effect of vesting the land in the State, was ever issued. Counsel have not addressed on the point whether time for making an application contemplated under Section 21 of the Ceiling Act had elapsed or not. However, it is clear that the scope of granting exemption under Section 20 of the Ceiling Act was very much existing on the date the agreement of sale was entered into. That apart proceedings under the Ceiling Act had not become final and as it transpired later the ex parte order declaring the excess land was set aside and direction to initiate fresh proceedings from the stage of Section 8(3) of the Ceiling Act was made. Still later, on 17.10.1998 however the land was again declared excess under Section 10(1) of the Act and appeal against that order was pending when the Ceiling Act was repealed.
12. An agreement of sale does not operate to transfer any interest in, nor creates a charge on the land itself. That is clear from the definition of a contract of sale in Section 54 of the Transfer of Property Act. Section 3 of the Ceiling Act imposes a bar on a person to hold land in excess of the ceiling limit. The definition of the expression 'to hold' in Section 2(d) of the Ceiling Act indicates that the expression also covers persons other than owners and even a person in possession holding an irrevocable power of attorney or under a hire purchase agreement is covered thereunder. There is nothing to show that a transfer to be covered under Section 5(3) of the Ceiling Act must involve a transfer of interest. The word 'otherwise' used in that provision is wide enough to cover an agreement of sale. But even if a wide meaning is given to it a transfer would require that the transaction at least brings about a transfer of possession if not of interest in the property or creates a charge thereupon. An agreement of sale which is neither coupled by a transfer of interest nor possession would not be a transfer. However, if it proposes the execution of a sale deed of land which at the time the sale deed is to be executed is excess land it. would be against public policy and hit by Section 23 of the Indian Contract Act. But there is nothing illegal if the owner of the land enters into an agreement of sale of the land in contemplation of relief under the Ceiling Act whether in the forum of the competent authority itself or in appeal and stipulates that no sale deed of such land would be executed except after getting a declaration that there is no excess land or after obtaining exemption under the Act. Such an agreement is not meant to offend any provision of the Act. Nor is it against the public policy. In the present case, the agreement stipulated that the sale deed would be executed only after the permission under the Ceiling Act was obtained. In Kanubhai Sankalchand Patel (supra) relied upon by Sri Sinha the Division Bench of the Gujarat High Court no doubt held that the agreement for sale was not enforceable after the Ceiling Act but it did not consider the effect of Section 20 of the Ceiling Act in its correct perspective. It did not consider why when the owner of the land could be granted the exemption under Section 20 of the Ceiling Act for himself the same benefit cannot be extended if he has entered into an agreement of sale. A Full Bench of the Gujarat High Court in Shah Jitendra Nanalal v. Patel Lallubhai Ishverbhai, : AIR1984Guj145 held that in such a case the agreement is enforceable and a conditional decree can be passed. Paragraph 11 of the decision of the Full Bench is quoted hereunder :
'11. So long as the provision declaring the transfer under Section 5(3) as void is subject to the right to move for exemption, obtain exemption and transfer the property, the power of an owner of vacant land in excess of the ceiling limit to 'alienate' such land is dormant in him and such power could be exercised by him in case he seeks exemption, satisfies the Government that the grounds for exemption exist and obtains such exemption. That being the case, a decree cannot be defeated on the ground that 'transfer' inter partes would not be possible. The possibility of obtaining exemption survives till the notification under Section 10(3) of the Act is issued. That being the situation, until then, a plaintiff seeking specific performance cannot be told that the terms of the contract cannot be fulfilled. Once it is said so, the plaintiff loses his right to get a decree for specific performance, though, invoking the provisions of the very Act, based on which the plaintiff was told that he could not get conveyance of the property agreed to be sold to him, the owner of excess land obtained exemption and continues in possession of property and perhaps even alienates it later. We see no reason either in law or in logic to countenance such a situation. There is nothing prohibiting a decree being passed for specific performance, with, of course, such alternative remedies as may be called for in a situation where that decree may become inoperative. The decree for specific performance may be made conditional on the exemption under Section 20(1)(a) or (b) operating. Of course, it is not for us in this reference to envisage how safeguards should be built in, in such a decree. Resourcefulness, of course, must necessarily find answer to possible situations.'
13. It is true that the agreement of sale which was under consideration by the Full Bench had been entered into before the Ceiling Act but that distinction on facts would not affect the applicability of the Full Bench decision to a case such as the present one in which the agreement was entered into after the Ceiling Act came into force because the ratio of the Full Bench is applicable to all agreements for sale of vacant land in excess of the Ceiling limit whether executed before or after the Act where a notification under Section 10(3) of the Act has not been issued.
14. The Madras High Court in Smt. Sushila v. Nihalchand Nahata, : AIR2004Mad18 held that when the Act itself provides for grant of exemption, any person can reasonably expect that he may get the exemption as provided under the Act. What is prohibited is an agreement to sell excess land. If the agreement is with respect to exempted land or with reference to land that is likely to be exempted such an agreement is not invalid. In that case the agreement of sale was executed after the Ceiling Act was enforced but there being no intention of the parties to violate the provisions of the Ceiling Act because exemption under the Act has to be obtained it was held that the agreement was valid. I am therefore of the view that the agreement to sell in the present case which stipulated that the sale deed would be executed after permission from Ceiling was not in contravention of Section 5(3) of the Ceiling Act. The question Nos. (a) and (b) are answered in favour of the plaintiff society. In view of this answer, question number (e) need not be answered.
15. I shall now take up question No. (c) in Second Appeal No. 1152 of 2002 of Charan Singh and others. This question relates to the bar of limitation. Article 54 of the Schedule of the Limitation Act provides a period of three years limitation in a suit for specific performance of a contract. If a date for specific performance is fixed in the agreement, the limitation starts running from the date fixed for its performance and in other cases from the date when the plaintiff has notice that the performance is refused. It was submitted by Shri Vinod Sinha that the agreement in this case provides the time limit within which it is to be performed viz., a period of one and half years and as the agreement was executed on 2.11.1985 it had to be performed by 1.5.1987 and the suit which was filed on 4.12.1990 was therefore barred by time. I am not inclined to accept his submission. The agreement stipulated that the sale deed was to be executed after obtaining permission under the Ceiling Act and clearance from the Income Tax Department. It is not in dispute that no permission from the Ceiling Authority was obtained within one and half years from the date of the execution of the agreement. Both the Courts below have found the suit to be within time. The lower appellate court has relied upon the letter dated 13.6.1987 of the defendant Charan Singh in which he stated that he had yet not obtained permission under the Ceiling Act and as soon as the permission was granted he would execute the sale deed. Under Section 63 of the Indian Contract Act the promisee may extend the time for performance of the contract. In the agreement of sale there were reciprocal promises, viz., the payment of consideration by the plaintiff society and the execution of sale deed by the defendants. The date of performance of a promise can be extended with the consent of the parties. The letter of Charan Singh dated 13.6.1987 was indeed such a letter of extension of time. It is of a date subsequent to the period of one and half years stipulated under the agreement but before the limitation for filing a suit had run out. The society, as appears from the conduct of the parties, also accepted this assurance made by the defendant and continued to make payment of consideration in advance from time to time. The last such payment appears to have been made on 24.12.1987. By letter dated 13.6.1987 the defendants had impliedly acknowledged the jural relationship of proposed buyer and seller created under the agreement of sale. In view of these facts, the time for performance of the contract, viz., one and half years stipulated under the agreement of sale was extended without fixing any further date. The condition in the agreement of sale that the sale deed would be executed after the permission was obtained from the Ceiling Authority continued to stand, which was acknowledged in the aforesaid letter of Charan Singh. In view of this fact it cannot be said that the limitation would start running from 1.5.1987 when the original period of one and half years fixed under the agreement of sale expired. The defendant repudiated the agreement by subsequent notice dated 2.8.1988. The courts below therefore were right in treating the date of this notice as the refusal by the defendants to perform their part of the contract and as the starting point of limitation. Admittedly the suit, which was filed on 4.12.1990 was within three years of this date and as such was within time.
16. Shri Vinod Sinha relied upon the decision of the Apex Court in T.L. Muddukrishna and Anr. v. Smt. Lalitha Ramchandra Rao, 1997 (2) AWC 1022 (SC). In that case the agreement which was entered into on 16.3.1989 provided the date for performance of the contract as 28.5.1989 and although the appellant in that case had issued notice dated 2.10.1989 calling upon the respondent to obtain the permission for transfer from the ceiling authority but the respondent by his notice dated 6.11.1989 had repudiated the contract. It was held that the limitation started to run from 28.5.1989 as the parties had fixed that date for the performance of the contract. The facts of that case are distinguishable. In that case the question of extension of time fixed in the agreement was not involved but it was laid down that the starting point of limitation was the date for performance of the contract unless the parties had by agreement extended the time. The courts below therefore rightly held that the suit was brought within the period of limitation. It has also been found by both the courts below that time was not the essence of the contract. It is clear that the defendants themselves had sent a letter dated 13.6.1989 and had also impliedly extended the time till permission from the ceiling authority is obtained. This part of the finding of the courts below that the time was not the essence of the contract appears to be correct and it is not shown to be vitiated by any error of law. The question No. (c) is therefore also answered in favour of the plaintiff society.
17. Shri Vinod Sinha also sought to challenge the finding of readiness and willingness recorded by the courts below. I am of the view that the concurrent findings of the courts below on this point are finding of facts and are not vitiated by any error of law and no substantial question of law arises on this point.
18. Now we may come to the questions framed in Second Appeal No. 957 of 2001 filed by the society. All the four questions relate to the question of delay and its effect upon the relief for specific performance sought by the plaintiff-society. These questions can therefore be dealt with together.
19. The trial court did not give any finding on this point. The lower appellate court however has held that the society is not entitled to the relief for specific performance and instead it has granted relief of refund of the advance together with interest. The lower appellate court has merely noticed the contention of the defendant's counsel that the agreement of sale was executed on 2.11.1985 and that a long period had elapsed since and it would not be just to grant a decree for specific performance. The court then referred to two decisions of this Court that where a long time has elapsed it was not proper to grant specific performance. It then considered the alternative relief of refund of money claimed by the plaintiff and decreed the suit for that relief. The decision of the lower appellate court on this point is a cryptic one. Section 20 of the Specific Relief Act no doubt provides that grant of relief of specific performance is discretionary but it also provides that the discretion of the Court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a court of appeal. Sub-section (2) of that provision refers to some of the circumstances in which the Court may properly exercise discretion not to decree specific performance. These circumstances are not exhaustive but they afford guidance. Before holding that the society was not entitled to the relief of specific performance on account of delay it was necessary for the lower appellate court to consider the various circumstances in favour of the parties so that the equities could be balanced. It was also required of the lower appellate court to consider as to which party was responsible for the delay and which party had repudiated the contract. The lower appellate court has committed error of law in the exercise of discretion in not considering the various equitable factors in favour of either party. In this case it has been found that out of the total consideration of Rs. 3,26,000, in all a sum of Rs. 2,38,000 was paid by the society by 24.12.1987 leaving a balance of Rs. 88,000 which was less than one-third of the total settled consideration. It has also been found that time was not essence of the contract and that the defendants had no right to repudiate the contract which they did by their notice dated 2.8.1988. In view of these facts it was to be considered whether any prejudice has been caused to the defendant on account of delay. The suit was filed on 4.12.1990 and at best there was a delay between 2.8.1988 the date of the defendant's notice and the filing of the suit which can be attributed to the society. Most of the delay therefore relates to the period when the suit was pending. Shri Vinod Sinha counsel for the defendants has not referred to any evidence on the record that the price of the property had escalated after the agreement of sale was entered into. However, Judicial notice may be taken of the general fact that the prices of immovable property have been going up. The period spent in the litigation cannot be treated as delay on the part of the plaintiff-appellant. It has been held in S.V.R. Mudaliyar v. Mrs. Rqjabu F. Buhari and Ors., AIR 1985 SC 1606 that merely because the prices have risen during the pendency of litigation, the relief of specific performance cannot be refused because if this view is taken relief could hardly be granted in any case because by the time a litigation comes to end a sufficiently long period is likely to elapse in most of the cases. This factor, therefore, should not, normally weigh against the suitor in exercise of discretion by the Court. Similar view was taken in Nirmala Anand v. Advent Corporation (P.) Ltd., : [2002]SUPP2SCR706 . In Prakash Chandra v. Angad Lal , : AIR1979SC1241 it was held that the ordinary rule is that specific performance should be granted and that it ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief.
20. Counsel for the respondent relied upon certain decisions in support of his contention that specific performance ought not to be granted in case of delay. These cases are Raghuvir Singh Bhatty v. Ram Chandra Waman Subhedar, 2001 (4) AWC 3140 : AIR 2002 All 13 and K.S. Vidyanadam and Ors. v. Vairavan, : AIR1997SC1751 in both of which relief of specific performance of contract was refused on the ground of delay. In these cases weight was given to the fact that the price of the property had considerably risen. These cases are therefore distinguishable. The decision of the Apex Court in Manjanath Anandappa Urf Shivappa Hansi v. Tammanasa and Ors., : [2003]2SCR1068 is also distinguishable on facts. In that case the suit was filed by the plaintiff when he learnt that the suit land had been sold by the defendant owner to another person and there was no material to show that the plaintiff had ever approached the defendant/owner of the property to execute the sale deed. It was held in these circumstances that the plaintiff was required to approach the Court within reasonable time. In Smt. Jamila Khatoon and Ors. v. Ram Niwas Gupta, 1998 (2) AWC 852 : AIR 1998 All 138 the relief was refused because the plaintiff did not file the suit with promptitude and no explanation for the delay was given. Although no finding was given but the Court had noticed the contention that the price of land was Soaring high and granted alternative relief of refund of money. In Chand Rani v. Smt. Kamal Rani, : AIR1993SC1742 it was held that even though time may not be essence of the contract the Court may infer that it is to be performed in a reasonable time from the express terms of the contract ; from the nature of the property and from the surrounding circumstances.
21. From the facts of this case it appears that there was some delay on the part of the society between the date when the defendants repudiated the contract by their notice dated 2.8.1998 and the date when the suit was filed viz., 4.12.1990. It is also true that some prejudice has been caused to the defendants in view of the fact that some escalation in the price of the land during this period can be presumed in view of the fact that the prices of immovable property have generally been going up.
22. In this case the contract of sale was entered into at a point of time when the land had been declared as excess. It is obvious that the price settled for such excess land was therefore lower than its market value if it were free from ceiling. The repeal of the Ceiling Act was a bonanza and it can be taken that the price of the property would have escalated When the property became free from ceiling. It is equitable and just that this bounty, which was unexpected, be shared by the parties. For this reason the answer to question Nos. 1 and 4 is that the defendants even though they may have repudiated the contract could plead delay. However, it is true that the delay in the trial of the suit alone and by itself cannot be a ground to refuse the relief of specific performance. That is what the Supreme Court also held in S.V.R. Mudaliyar (supra). The question Nos. 2 and 3 are answered accordingly.
23. The question of relief may now be considered. It has been held in Manjunath Anandappa (supra) by the Apex Court relying upon a previous decision of Nirmala Anand v. Advent Corporation (P.) Ltd., : [2002]SUPP2SCR706 that the Court in its discretion can impose any reasonable condition including payment of an additional amount by one party to another while granting or refusing decree of specific performance. The defendants no doubt had illegally repudiated the contract by their notice but it has been found that the plaintiff was also responsible for some delay. The defendants were paid a major part of the consideration before 24.12.1987 and only a sum of Rs. 88,000 remained to be paid. The defendants have also enjoyed the possession and reaped the benefits of the land all these years. The repeal of the Ceiling Act has however showered a bonanza to be shared by the parties. The defendants therefore are at least entitled to compensation.
24. Sri Vinod Sinha, learned counsel for the defendants relied upon the affidavits filed in the defendants appeal by the respondent No. 3 and offered that the defendants are ready to pay a sum of Rs. 35 lacs as compensation to the plaintiff/ appellants if specific performance is not granted. On the other hand, Sri P.C. Jain, learned counsel for the plaintiffs society relying upon the affidavit of the Secretary of the Society stated that apart from the sum already paid by the society to the defendants, which the defendants have utilized for a period of about 20 years the plaintiffs are ready to pay a further sum of Rs. 50 lacs without making any adjustment of the advance. Considering the entire circumstances of this case and the fact that the defendants had repudiated the contract and had also enjoyed the possession of the land for all these years and have also obtained a major part of the consideration settled it is appropriate that the relief for specific performance be granted to the plaintiffs but on condition that the defendants be granted compensation. The offer of the plaintiff society appears to be adequate and will meet the ends of equity. The question of law framed in Second Appeal No. 1152 of 2002 have been answered against the appellants of that appeal and consequently there is no merit in that appeal. However, as both the appeals arise out of the same judgment, the decree passed by the trial court and by the lower appellate court is being set aside. Second Appeal No. 957 of 2001 filed by the society is allowed while Second Appeal No. 1152 of 2002 fails. The decree of both the courts below is set aside and is substituted by the following decree. The suit for specific performance is decreed on the condition that a sum of Rs. 50 lacs in addition to the amount already paid by the plaintiffs as advance to the defendants be paid to the defendants by the plaintiffs. The amount will be deposited in the trial court within four months from today and may be withdrawn by the defendants. In the event of failure on the part of the plaintiffs to deposit this amount in the trial court within this time the suit for specific performance shall stand dismissed and the decree of the lower appellate court shall stand restored. The parties will bear their own costs.