TMI Blog1968 (4) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court of the Civil Judge, Senior Division, Belgaum, for a decree for specific performance of the agreement and for possession of the land. The trial court dismissed the suit holding that the agreement, if enforced, would result in transgression of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 . In appeal, the High Court of Mysore granted a decree for specific performance. With certificate granted by the High Court, this appeal has been preferred by the appellant. The trial court and the High Court have concurrently found that the appellant failed to prove that the contract was abandoned by mutual agreement, and nothing more need be said about the plea raised by the appellant. Two questions survive for decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether such possession is actual or not S. 3(1) of the Bombay Land Revenue Code, 1879. Section 35 provided that : Where on account of gift, purchase, assignment, lease, surrender or any other kind of transfer inter vivos or by bequest except in favour of recognised heirs and land comes into the possession of any person and in consequence thereof, the total land held by such person exceeds the area, which he is authorised to hold under section 34, the acquisition of such excess land shall be invalid. Explanation. The material part of s. 84C provided:- (1) Where in respect of the transfer of acquisition of any land made on or after the commencement of the Amending Act, 1955, the Mamlatdar suo motu or on the application of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of jirayat land. If that holding were to be taken into account, and, if in pursuance of a decree for specific performance the respondent acquired possession of the land agreed to be sold, his total holding would exceed the ceiling. In the trial court the parties proceeded to trial on the footing that if the agreement was enforced specifically, the holding of the respondent would exceed the ceiling area. In appeal, the High Court observed that there was no evidence that the respondent was a holder of land in excess of the ceiling area on the date of the agreement nor was there evidence to show that he was holding an area of land in excess of the ceiling area on the date of the suit or even at the date of the statement dated April 1, 1960, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling, the lands having been acquired either by purchase, assignment, lease, surrender or by bequest, the acquisition in excess of the ceiling is invalid. The expression acquisition of such excess land shall be invalid may appear somewhat ambiguous. But when the scheme of the Act is examined, it is clear that the Legislature has not ,declared the transfer or bequest invalid, for s. 84C provides that the land in excess of the ceiling shall be at the disposal of the Government when an order is made by the Mamlatdar. The invalidity of the acquisition is therefore only to the extent to which the holding exceeds the ceiling prescribed by s. 5, and involves the consequence that the land will vest in the Government. By the acquisition declare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be transgressed. The mere possibility that the respondent may not have disposed of his original holding at the date of the acquisition of title pursuant to the agreement entered into between him and the appellant will not, in our judgment, render the object of the agreement such, that, if permitted, it would defeat the provisions of any law. The Court, it is true, will not enforce a contract which is expressly or impliedly prohibited by statute, whatever may be the intention of the parties, but there is nothing to indicate, that the Legislature has prohibited a contract to transfer land between one agriculturist and another. The inability of the transferee to hold land in excess of the ceiling prescribed by the statute has no effect upon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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