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Sukha and ors. Vs. Hari Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 391 of 1965
Judge
Reported inAIR1977All11
ActsUttar Pradesh Consolidation of Holdings Act, 1954 - Sections 5, 12, 30 and 49
AppellantSukha and ors.
RespondentHari Singh and ors.
Appellant AdvocateVidya Bhushan Gupta, ;S.K. Gupta and ;N.S. Chaudhary, Advs.
Respondent AdvocateV. Sabai and ;B. Dayal, Advs.
DispositionAppeal dismissed
Excerpt:
.....identity of property remains unchanged hence suit for specific performance of sale valid. (ii) sale deed and contract of sale - sections 49 and 12 of u. p. consolidation of holdings act, 1954 - contract for sale does not give any right or interest in property - available only after execution of sale deed - suit for specific performance of contract not barred. (iii) permission to sell - section 5 (c) of u. p. consolidation of holdings act, 1954 - permission may be obtained under section for sale - court cannot direct permission towards particular person. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal..........20-9-1959. a balance of rs. 1,000/-only had thus to be paid at the time of the execution of the sale deed. the sale deed was to be executed and registered within one year after the bhumidhari sanad had been obtained in respect of those plots by defendant no. 1 and permission for sale was also obtained by him from the consolidation authorities. the plots were sirdari plots at the time when the agreement for sale was executed. it was further alleged that the defendant did not execute the sale deed within the stipulated period although the plaintiff had always been ready and willing to perform his part of the contract. defendant no. 1 avoided to execute the sale deed. it also came to light that defendant no. 1 had entered into an agreement for sale subsequently on 5-11-1962 with.....
Judgment:

H.N. Kapoor, J.

1. This appeal has been filed by the defendants second set against the decree and judgment dated 18-11-1964 of the Additional Civil Judge, Bulandshahr in Civil Appeal No. 412 of 1963 confirming the decree and judgment dated 25-9-1963 in original Suit No. 451 of 1962 of the first Munsif, Bulandshahr by which the plaintiffs' suit for specific performance of contract for sale in respect of certain agricultural plots mentioned at the foot of the plaint was decreed.

2. The plaintiff brought the suit on the allegations that defendant No 1 Vijai Singh (now defendant-respondent) entered into a contract for sale and executed a written agreement on 11-9-1963 agreeing to sell half share in the various plots mentioned in the agreement deed for a sum of Rs. 4,500/-. Out of that amount a sum of Rs. 2,150/- was paid to him in cash and another sum of Rs. 1,350/-had been adjusted as that amount had been taken on loan by Vijai Singh from the plaintiff on the basis of the pronote dated 20-9-1959. A balance of Rs. 1,000/-only had thus to be paid at the time of the execution of the sale deed. The sale deed was to be executed and registered within one year after the bhumidhari sanad had been obtained in respect of those plots by defendant No. 1 and permission for sale was also obtained by him from the consolidation authorities. The plots were sirdari plots at the time when the agreement for sale was executed. It was further alleged that the defendant did not execute the sale deed within the stipulated period although the plaintiff had always been ready and willing to perform his part of the contract. Defendant No. 1 avoided to execute the sale deed. It also came to light that defendant no. 1 had entered into an agreement for sale subsequently on 5-11-1962 with defendants Nos. 2 to 4 in respect of the same plots, hence the suit.

3. Defendant No. 1 contested the suit on the ground that he never agreed to sell his share to the plaintiff nor had he executed any agreement as alleged. He denied to have received consideration for the game. According to him, he had borrowed a sum of Rs. 100/- from the plaintiff who got his thumb-impression taken on a blank stamped paper. It was, therefore, suggested that he might have got a false agreement deed prepared. Defendants 2 to 4, who are the present appellants, contested the suit on the ground that they had no knowledge of any agreement for sale in favour of the plaintiff and that the agreement for sale was executed in their favour on 5-11-1962 after they had paid a consideration of Rupees 3,300/-. It was also pleaded that subsequently the sale deed was executed in their favour after obtaining the necessary permission from the Consolidation Authorities and as such they were bona fide purchasers for value without notice. It may be stated here that the suit was filed on 29-11-1962. The permission for sale in favour of defendants Nos. 2 to 4 was obtained on 15-1-1963 and the sale deed was executed on 16-1-1963. The written statement by defendant No. 1 is dated 24-3-1967 and by defendants Nos. 2 to 4 is dated 10-4-1963. The agreement for sale in favour of the plaintiff was also challenged on the ground that it was in respect of sirdari rights.

4. On the pleadings of the parties, the trial court framed several issues. It decided the main issue in favour of the plaintiff that defendant No, 1 had executed an agreement for sale in his favour and had received Rs. 3,500/- as part consideration therefor. It, however, decided another issue in favour of defendants 2 to 4 that they were bona fide purchasers for value without notice of prior agreement. But it held that the sale deed executed by defendant No. 1 in favour of defendants Nos. 2 to 4 was hit by the doctrine of lis pendens. With these findings it decreed the plaintiff's suit. In appeal, the lower appellate court held that defendants 2 to 4 had notice of the prior agreement for sale in favour of the plaintiff and as such, the sale in favour of defendants Nos. 2 to 4 was liable to be set aside. The agreement for sale in favour of the plaintiff was held to be genuine. With these findings, the judgment and decree of the lower courts were confirmed.

5. Learned counsel for the appellants has challenged the findings of the lower appellate court mainly on three, grounds. Firstly, he has argued that during the consolidation proceedings there is a change in the nature of holdings and different plots were allotted to defendant No. 1 and as such the agreement dated 11-9-1963 has become incapable of enforcement. Secondly, he has argued that the suit is barred by Section 49 of the U. P. Consolidation of Holdings Act as no objections were filed under Section 12 and the mutation had also taken place. Thirdly, he has argued that the permission for sale under Section 5 (c) of the U. P. Consolidation of Holdings Act, 1953 had been obtained on 15-1-1963 for sale of the plots in favour of defendants Nos. 2 to 4 only and the same cannot be available in favour of the plaintiff.

6. As regards the first point an adjournment of the case was taken after paying costs of Rs. 60/-. Affidavits were filed along with certified copies of C, H. Forms Nos. 41 and 45 pertaining to the plots in dispute, It was averred in the affidavit and the rejoinder affidavit that different plots had been allotted to defendant No. 1 during the consolidation proceedings and the original plots had been given to other persons. This fact was denied in the counter-affidavit. Sri G. N. Verma, learned counsel for the respondents has based his argument on the certified copies of C. H. Forms Nos. 4l and 45 which have been filed by 'the appellant himself. He has drawn my attention to the plaint in which it was clearly stated that the original plots mentioned in the agreement deed were newly numbered as plots Nos. 202 Ka, 202 Kha. 198, 215 and 40. He has shown with the help of Forms Nos. 41 and 45 that all the plots mentioned in the agreement deed have been included in those very new plots which were mentioned in the plaint. It is claar from Form No. 45 that these new numbers have been allotted to defendant No. 1 and defendants Nog. 2 to 4 jointly in two chaks. The total area, according to the agreement deed, was 5 bighas, 10, biswas and 5 biswansis. That very area has been allotted to those persons jointly in these two chaks. The identity of the original plots has thus not been changed even though new numbers have been given. It would certainly have been a different matter if other plots had been allotted in place of the old plots. In that case, it would not have been possible to decree the suit for specific performance of contract for sale which could be in respect of the plots shown in the agreement deed. It was so held by a Full Bench of this Court in the case of Mahendranath v. Smt. Baikunthi Devi, (AIR 1976 All 150). However, in the present case, it is clear from the perusal of certified copies of Forms Nos. 41 and 45 that all the original plots which were included in the agreement deed have actually been allotted to defendant No. 1 jointly with his co-sharers in the two chaks. That agreement can, therefore, be enforced in respect of these plots even though new numbers have been given to those very plots.

7. Learned counsel for the appellants has vehemently argued that an issue should be remitted to the lower court to decide whether all the old plots have been included in the new chaks allotted to the defendants along with his co-sharers. According to him, it will then be possible for the lower court to issue a commission. I have carefully examined this aspect. In my opinion, no useful purpose can be served by remitting an issue as the scrutiny of these two papers, that is, certified copies of Forms Nos. 41 and 45 which have been filed by the appellants themselves, leaves no doubt that ell the old plots which are mentioned in the agreement deed are included in the two new chaks which have been allotted to defendant No. 1 and his co-sharers. It may be stated here that defendants Nos. 2 to 4 who are subsequent purchasers are none else but the co-sharers of defendant No. 1 who is the son of Kanha. It is also significant that this averment made in the plaint that new numbers of those very plots are 202 Ka, 202 Kha, 198, 215 and 40 was admitted by defendant No. 1 in his written statement. I have no doubt that a frivolous plea has been raised, by the defendants-appellants with regard to this matter and they have succeeded in delaying the hearing of this appeal by resorting to these tactics and by making false averments in the affidavits which have been filed in this Court.

8. As regards the second point, it may be observed that the suit was filed before the sale deed could be executed in favour of the defendants-appellants and before any mutation could be effected in their favour. No doubt, it was averred in the written statement that mutation had been effected but no paper showing mutation has been filed. Even if mutation had been effected, there would have been no bar in proceeding with the suit which could lie only in the civil court. Under Section 12 of the U. P. Consolidation of Holdings Act it was not possible for the plaintiff-respondents to have filed any objections as they had not acquired any right or interest in the property in suit which could have done only after the sale deed was executed. In the Full Bench case reported in AIR 1976 All 150 (Supra), it was so held that the rights and liabilities under the contract for sale do not attach to the land within the meaning of Section 30 of the Act. Same reasoning will apply so far Section 12 is concerned. In the case of Gorakhnath v. Hari Narain Singh, (AIR 1973 SC 2451), their Lordships of the Supreme Court have held that a void decree or a void sale deed which is a nullity can alone be looked into by the consolidation courts. In case a sale deed is to be avoided or) other grounds, such as fraud etc. Only a civil suit will lie, it naturally follows that there will be no bar of Section 49 to such suits. The same principle will apply, to a suit for specific performance of contract for sale.

9. It was held by a learned single Judge of this court in the case of Chetan Singh v. Hira Singh, (1969 RD 416) that Section 5 (2) (a) of the U. P. Consolidation of Holdings Act, as amended by Act No. XXI of 1966, will not apply to a suit for specific performance and such a suit is not liable to be stayed or abated. There can thus be no bar of Section 49 of the Act to such a suit.

10. As regards the last argument, defendant No. 1 had undertaken to obtain bhumidhari sanad by depositing the requisite amount and also to obtain the necessary permission from the consolidation authorities, under the agreement for sale. In fact, it was for this reason that substantial amount had been advanced to him as earnest money to enable him to obtain the bhumidhari sanad. It is consistent view of this court that when the prospective vendor undertakes to obtain bhumidhari sanad and fails to do so under Section 134 of the U. P. Zamindari Abolition and Land Reforms Act with the result that the, land cannot be sold, it would be open to the court in a suit for specific performance of contract for sale to direct that the bhumidhari sanad be obtained and the sale deed be executed thereafter. On the same anology, it would have been possible for the court to direct that permission for sale too may be obtained under Section 5 (C) of the U. P. Consolidation of Holdings Act. In the present case permission was already obtained for sale in favour of defendants 2 to 4. There could be no reason why the authorities concerned would have refused to accord permission for sale in favour of the plaintiff. Moreover Section 5 (c) contemplates only permission in writing of the Settlement Officer (Consolidation) to sell. It does not contemplate that it must be in favour of some particular person. It can, therefore, be said that permission to sell in favour of defendants 2 to 4 which had already been obtained, will be available in favour of the plaintiff also. In any view of the matter if any necessity was felt for regularising the permission, it could have been done by the executing court which could have made a reference to the Settlement Officer (Consolidation). However, in the present case, I am informed that the consolidation proceedings are already over and the final notification under Section 52 of the Act has been issued nO such permission is, therefore, now necessary. The suit was thus rightly decreed by the Courts below. Only one defect appears to have crept in. The trial court has rightly passed a decree that all the defendants shall execute the sale-deed in favour of the plaintiff but it has wrongly ordered that a sum of Rs. 1,000/-should be paid to defendant No. 1 in the presence of the Sub-Registrar. This amount, in fact, should be paid to defendants Nos. 2 to 4, as it has been proved that they are purchasers for consideration. It was so held by their Lordships of the Supreme Court in the case of Durga Pd. v. Deep Chand, (AIR 1954 SC 75).

11. In the result the appeal is dismissed subject to the modification that the amount of Rs. 1,000/- is to be paid to defendants 2 to 4 instead of defendant No. 1. The plaintiff-respondents shall be entitled to recover costs of this appeal from the defendants-appellants.


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