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Mahendra Nath and anr. Vs. Smt. Baikunthi Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1467 of 1966 and Civil Revn. No. 653 of 1972
Judge
Reported inAIR1976All150
ActsUttar Pradesh Consolidation of Holdings Act, 1954 - Sections 30; Specific Relief Act, 1963 - Sections 20
AppellantMahendra Nath and anr.
RespondentSmt. Baikunthi Devi and ors.
Appellant AdvocateS.D. Pandey and ;Shanti Bhushan, Advs.
Respondent AdvocateG.N. Singh, Adv.
Excerpt:
.....- interest in land - section 30 of u. p. consolidation of holdings act, 1954 - person having contract for sale or decree for specific performance of contract - has no interest in the land -can enforce the contract compelling the other side to execute the sale deed or seek the help of court - till the execution of the sale deed no right in the land. - - (d) the right of the public as well as all individuals in or over land included in a chak following a declaration made under the proviso to sub-section (2) of section 19-a shall cease, and be created in the land specified for the purpose in the final consolidation scheme; it need not be a liability which attaches itself to the land like a charge. (as he then was) came to the conclusion that the suit for specific performance of..........section 152, civil p.c. it was further observed by this court that the remedy of the plaintiff decree holder was either to file another suit in respect of the new plots or to file a review application. the plaintiff decree-holder did not file any fresh suit or a review application. he, however, made a fresh application under section 151, civil p.c. for the amendment of the decree by adding the new plots. the application was resisted by the defendant opposite parties on the grounds, inter alia, that the application was not maintainable in view of the earlier order of this court, that the same was barred by time, barred by section 11, civil p.c. and barred by section 49 of the u.p. consolidation of holdings act.10. the civil judge overruled the various objections raised by the.....
Judgment:

Misra, J.

1. The present second Appeal and the revision application arising out of two different suits came up for hearing before a learned Single Judge of this Court, The two cases involved the interpretation of Section 30 of the U.P. Consolidation of Holdings Act as the main point. The single Judge finding a conflict of judicial opinion in the two Division Bench decisions, namely, Shri Ram v. Dhani Ram Gupta, 1974 All WR (HC) 213 = (AIR 1974 All 358) and Shanti Prasad v. Akhtar, 1972 RD 275 (All) referred the two cases to a larger Bench. This 5s how these cases have come up before us.

2. Though the pattern of facts in the two cases is similar yet the details differ. It will, therefore, be convenient to give the material facts of the two cases to bring out the point involved therein.

3. In the Second Appeal No. 1467 of 1966, Mahendra Nath and his uncle Jeewa Ram were the co-tenants of certain plots, measuring 6.04 acres. By a deed of agreement dated 16th June, 1960, Jeewa Ram agreed to sell his half share in the plots as also his house to Mahendra Nath for a consideration of Rs. 3,000/-. Mahendna Nath paid Rs. 2,200/- by way of advance and the balance was to be paid on the date of sale within three years after the consolidation of holdings was over in the village. As a result of consolidation, a joint chak No. 10 with an area of 6.01 acres was formed. AH the original plots of the co-tenure holders, mentioned in the agreement, were included in their joint chak except plot No. 172. In lieu of plot No. 172 (.06 acres), a new plot No. 164 (area .03 acres) was included in the chak.

4. It appears that Jeewa Ram died in the meantime leaving behind him his heirs and legal representatives, Mahendra Nath sought to enforce the agreement dated 16th June, 1960, by means of a suit against the heirs and legal representatives of Jeewa Ram. The claim was resisted by defendants Nos. 1 to 5 on the grounds, inter alia, that Jeewa Ram never executed any deed of agreement nor did be receive any advance, that Jeewa Ram had also executed a will in their favour and thus they were the rightful owner; of the properties, that defendant No. 6 was not the heir of Jeewa Ram and she had no concern with the disputed properly. She had also lost her claim before the consolidation authorities.

5. The trial court decreed the suit on the finding that Jeewa Ram did enter into an agreement with the plaintiff to sell his house and his half share in the plots, and had received Rs. 2,200/- by way of advance. On appeal by the defendants, the Civil and Sessions Judge reversed the decree of the trial court. He took the view that Section 5(c) (ii) of the U.P. Consolidation of Holdings Act, 1953 prohibits the transfer by way of sale or gift or exchange any part of the holding in the consolidation area without the permission of the Settlement Officer (Consolidation) and as an agreement to sell is included in the definition of sale, it stands on the same footing as a sale and so it is hit by Section 5(c)(ii) of the U.P. Consolidation of Holdings Act. He further held that as the plaintiff wanted the enforcement of the entire agreement, it could not be enforced even in respect of the house. On other issues, the findings of the trial court were, however, upheld. The plaintiff has now come up in second appeal to this Court.

6. Out of the several pleas raised by the defendants, only one survives now--

'Whether the agreement to sell dated 16th June, 1960, can be specially enforced in respect of chak No. 10 which includes some new plots not included in the deed of agreement.'?

7. In Civil Revision No. 653 of 1972, one Khawani Singh was the sirdar of certain plots, measuring 8 Bighas 18 Biswas, situate in village Chanda Turk. He entered into an agreement to sell his plots to Ghasita for a consideration of Rs. 2,136/- on 21st June, 1958. Khawani Singh deposited ten times rental on 5th February, 1960, to become a bhumidhar and on 6th February, 1960 he transferred 3 Bighas 4 Biswas of the land to his wife under a gift deed and the remaining area to Shamsuddin, father of opposite parties Nos. 2 to 4, in defiance of the agreement dated 21st June, 1960. Ghasita, therefore, filed a suit in the court of Munsif to enforce the agreement of 1960. The suit was, later on, transferred to the court of the Civil Judge.

8. The trial Judge rejected the plaintiff's claim for specific performance of the contract. He, however, decreed the suit for recovery of Rs. 800/-. On appeal by the plaintiff, the suit was decreed and the appellant was asked to deposit the balance of sale consideration within ten days. Defendants feeling aggrieved by the appellate judgment canoe up in second appeal to this Court and this Court dismissed the appeal on 11th March, 1964, and confirmed the judgment and decree of the first appellate court. The village where the plots are situate was brought under consolidation operations. As a result of consolidation, the plots, mentioned in the plaint were lost to the tenure holder and instead new plots were allotted to his chak.

9. Ghasita filed an application under Section 151, Civil P.C. for the amendment of the decree by including the substituted plots in place of the old plots. It was numbered as Misc. Case No. 21 of 1964. The Civil Judge allowed the application by his order dated 14th September, 1964, ordering the necessary amendments in the decree. Khawani Singh and others filed a revision against the order dated 14th September, 1964, which was, later on, numbered as Revision No. 40 of 1970. This Court allowed the revision and set aside the impugned order on 6th October, 1966, on the ground that Sec. 152, Civil P.C. is meant for correcting a clerical or arithmetical error. The amendment of the decree by substituting new plots in place of the plots given hi the plaint could not be allowed in exercise of the power under Section 152, Civil P.C. It may be pointed out that this Court was under the impression that the application for amendment was under Section 152, Civil P.C. and not under Section 151, Civil P.C. The record of the case, however, indicates that the application for amendment was, in fact, made under Section 151, Civil P.C. and not under Section 152, Civil P.C. It was further observed by this Court that the remedy of the plaintiff decree holder was either to file another suit in respect of the new plots or to file a review application. The plaintiff decree-holder did not file any fresh suit or a review application. He, however, made a fresh application under Section 151, Civil P.C. for the amendment of the decree by adding the new plots. The application was resisted by the defendant opposite parties on the grounds, inter alia, that the application was not maintainable in view of the earlier order of this Court, that the same was barred by time, barred by Section 11, Civil P.C. and barred by Section 49 of the U.P. Consolidation of Holdings Act.

10. The Civil Judge overruled the various objections raised by the defendants and allowed the application under Sec. 151, Civil P.C. by substituting the new plots in place of the old ones. Khawani Singh and others went up in revision before the District Judge, who allowed the same and set aside the order of the Civil Judge dated 5th October, 1970, by his order dated 14th April, 1972. Ghasita has now come up in revision to this Court.

11. Only two points survive for consideration in this revision :--

(i) Whether the application .under Section 151, Civil P.C. is maintainable hi view of the earlier order dated 6th October, 1966, of this Court?

(ii) Whether the decree for specific performance of the contract in respect of the plots included in the agreement could be enforced in respect of the substituted plots as a result of consolidation scheme in view of Sec. 30 of the U.P. Consolidation of Holdings Act?

12. The decision of the main point involved in the two cases hinges on the interpretation of Section 30 of the U.P. Consolidation of Holdings Act. Section 30 reads.

'30. Consequences which shall ensue on exchange of possession.--

With effect from the date on which a tenure-bolder enters, or is deemed to have entered into possession of the chak allotted to him, in accordance with the provisions of this Act, the following consequences shall ensue--

(a) the rights, title, interests and liabilities--

(i) of the tenure-holder entering, or deemed to have entered into possession, and

(ii) of the former tenure-holder of the plots comprising the chak in their respective original holdings shall cease; and

(b) the tenure-holder entering into possession, or deemed to have entered into possession, shall have in his chak the same rights, title, interests and liabilities as he had in the original holdings together with such other benefits of irrigation from a private source, till such source exists, as the former tenure-holder of the plots comprising the chak had in regard to them;

(c) lands vested in the Gaon Sabha. or any local authority, and allotted to the (tenure-holder shall be deemed to have been resumed by the State Government under the provisions of Section 117 or Section 117-A, as the case may be, of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act 1 of 1951), and settled with the tenure-holder;

(d) the right of the public as well as all individuals in or over land included in a chak following a declaration made under the proviso to Sub-section (2) of Section 19-A shall cease, and be created in the land specified for the purpose in the final Consolidation Scheme; and

(e) the encumbrances, if any, upon the original holding of the tenure-holder entering or deemed to have entered into possession, whether by way of lease, mortgage or otherwise, shall, in respect of that holding, cease, and be created on the holdings, or on such part thereof, as may be specified in the final Consolidation Scheme.'

13. A bare perusal of the section reveals that the rights, title, interests and liabilities of the tenure-holder in his original holding cease. The tenure-holder acquires the same rights, title, interests and liabilities in the chaks allotted to him, It is the rights, title, interests and liabilities of the tenure-holder which stand transferred to the chak allotted to him.

14. Now, the question arises whether the decree-holder in a suit for specific performance of an agreement had any interest or liability in the disputed plots. In Shri Ram v. Dhani Ram Gupta, AIR 1974 All 358 (supra), a Division Bench of this Court consisting of R.L. Gulati and C.S.P. Singh, JJ. held:

'When a suit for specific performance is decreed, all that the decree can direct to ask the judgment-debtor to execute the sale deed failing which the court itself executes it......... After the execution of the sale deed the decree-holder can ask the consolidation authorities to enforce it. In that event, the consolidation authorities will have to treat the land to be that of the decree-holder instead of the judgment-debtor and proceed accordingly. But, a court cannot make out a new contract, ......... For, all that can be done in a suit for specific performance is to enforce the contract specifically and nothing else. The result would be that if the disputed land has gone finally in the Chak of a third person, the suit for specific performance has to be dismissed and no question of recourse to Section 52 (2) arises. If, however. the decree is passed before finalization of Chaks, or if the land remains with the judgment-debtor, even on allotment effect can be given to the decree under Section 52 (2). .........Section 30 of the Act on which reliance is placed by the respondents is also of not assistance as it relates to right, in the land, as opposed to a purely personal right to get a sale deed executed in respect of the land.'

15. A contrary view was taken by another Division Bench of this Court consisting of Satish Chandra and Gopinath, JJ. in Shanti Prasad v. Akhtar, 1972 RD 275 (All) (supra). Akhtar and another sold some plots of agricultural land to Shanti Prasad for Rs. 1,000/-. Thereafter the parties executed another agreement for reconveyance of the sold property to Akhtar within five years for the same sale consideration. Shanti Prasad, however, declined to reconvey without any justifiable cause. Akhtar and another therefore, filed a suit to enforce the specific performance of the agreement. The plots in dispute, in the meantime, came under consolidation operation and in lieu of the plots covered by the agreement between the parties, the defendant was allotted a chak consisting of entirely new plots. The defendant resisted the claim of the plaintiffs on the ground that he was incompetent to execute a deed of sale in respect of the plots mentioned in the agreement and the contract Was discharged by reason of supervening impossibility. The Division Bench took the view :

'Section 30 speaks of the liability of the tenure-holder. The liability should be in respect of his old holding. It need not be a liability which attaches itself to the land like a charge. If the tenure-holder was under some legal liability, he would continue to remain subject to it.'

16. It may be convenient, at this stage, to refer to other cases cited at the bar. In Second Appeal No. 153 of 1961, Dasondi v. Chhajjoo Singh decided on 1st October, 1963 (All), one Chajjoo Singh had transferred his agricultural land to Dasondi. On the very day, Chajjoo Singh and Dasondi entered into an agreement whereby Dasondi was to reconvey the land to Chajjoo Singh within three years. The Village in question was, later on, brought under consolidation operations, but before the consolidation operations were completed, Chajjoo Singh filed a suit for specific performance of the contract of reconveyance. During the pendency of the suit, consolidation operations came to a close and a part of the disputed land was allotted to another person. In lieu of the part of the disputed plot allotted to the chak of another person, Dasondi and his brother got another plot, which was included in a joint chak. K.B. Asthana, J. (as he then was) came to the conclusion that the suit for specific performance of the contract must fail as the contract for reconveyance had become impossible. He also repelled the argument that the contract of reconveyance created any encumbrance on the land.

17. In Sugna v. Kali Ram, 1966 RD 410 (All) S.S. Dhavan, J. while construing Section 30 of the U.P. Consolidation of Holdings Act, laid down the following proposition :

'Section 30 provides that after a tenure-holder takes possession of the plots allotted to him, his 'rights, title interest and liabilities in his original holding (my emphasis) shall be extinguished and he shall have the same rights title, interest and liabilities in the plots allotted to him (my emphasis).' The effect of this section is to extinguish all rights and liabilities in the old plots and to create equivalent rights and liabilities in the new plots. The word liability means legal liabilities as for example, the liability to pay land revenue and so on. Similarly, the word 'right' means legal rights in the land as for example the rights of a bhumidhar. Section 30 provides that if under the consolidation proceedings a sirdar is deprived of his plot and given in exchange a plot of a bhumidhar, his rights under the new plots will be those of sirdar and not a bhumidhar, and similarly his liabilities will be of those of a sirdar and not as a bhumidhar. But agreement to reconvey land does not create a liability in the land but only personal right which can be enforced against the person making the agreement such a liability does not attach itself to the new plots by virtue of Section 30.'

18. In Chetan Singh v. Hira Singh, 1969 All LJ 189 a learned Single Judge of this Court held:

'the decree for specific performance would relate to the chaks and valuations mentioned in the order of the Settlement Officer (Consolidation) dated 28th August, 1966, instead of the holding which originally belonged to the vendor and which was mentioned in the agreement of sale.'

19. On a careful consideration of the cases eked above, we find ourselves in agreement with the view taken in Shri Ram v. Dhani Ram Gupta, (AIR 1974 All 358) (supra). In view of Section 30 of the U.P. Consolidation of Holdings Act, a tenure-holder gets the same rights, interests and liabilities in the chaks allotted to him which he had in the original holding and his interests and liabilities in the original holding cease after the allotment of the chak. But a person who has got only a contract for sale or has got a decree for the specific performance of the contract, has got no interest in the land. He can only enforce the contract compelling the other side to execute the sale deed failing which the Court might execute a sale deed for the defendant, but the rights and liabilities under the contract do not attach to the land. The key words in Section 30 of the U.P. Consolidation of Holdings Act are 'the rights, title, interests and liabilities in their respective holdings shall cease.' The question of ceasing of the interests would arise only when the plaintiff had an interest in the land, but till the sale deed was executed, the plaintiff could not get any right in the land. There is absolutely no warrant for holding that the agreement for sale stands on the same footing as sale and the lower appellate court has erred in holding to the contrary.

20. We get support for the view from Satyabrata Ghose v. Mugneeram Bangur and Co., AIR 1954 SC 44. In that case, the Supreme Court laid down the following proposition :--

'According to the Indian Law, which is embodied in Section 54 of the T.P. Act, a contract for sale of land does not of itself create any interest in the property which is the subject-matter of the contract. The obligations of the parties to a contract for sale of land are, therefore, the same as in other ordinary contracts and consequently the doctrine of frustration is applicable to contracts for sale of land in India.'

It was further laid down that:

'The word 'impossible' has not been used 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 untoward event or change at 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.'

21. There is yet another aspect from which the case can be looked into. Supposing 'A' agreed to purchase plot 'X' from 'B'. Subsequently, on account of certain otter intervening enactment, instead of plot 'X' 'B' was allotted plot 'Y' at a different place and 'B' had the same interest in plot 'Y' as he had in plot 'X'. If 'B' wants to enforce the contract asking 'A' to purchase the same, it will really be unjust to enforce the contract in the changed circumstances. 'A' had agreed to purchase a particular plot situate at a particular place which may have been important for him. He could not, subsequently, be compelled to purchase a plot at a different place which he never intended to purchase from 'B'. The enforcement of such a contract by a court of law would be a substitute the original agreement by another which is not permissible. The count in a suit for specific performance of a contract for sale has to specifically enforce the contract, if possible. If it is not possible, the agreement would be hat by the rule of frustration and such a contract could not be enforced nor a decree passed on the basis of such a contract could be executed.

22. In Shanti Prasad v. Akhtar, 1972 RD 275 (AM) (supra), the Division Bench took the view that Section 30 of the U.P. Consolidation of Holdings Act speaks of the liability of the tenure-holder. It need not be a liability which attaches itself to the land like a charge. We find great difficulty in subscribing to that view. The section in clear and unequivocal words contemplates that the rights, title, interests and liabilities of the tenure-holder in his original holding shall cease. The plaintiff, therefore, before invoking the provision of Section 30 of the U.P. Consolidation of Holdings Act must show that he has an interest in the original holding. But m view of the Supreme Court decision in Satyabrata Ghose v. Mugneeram Bangur & Co., AIR 1954 SC 44 (supra) the plaintiff in a suit for specific performance of a contract does not get an interest in the land. His rights and liabilities are of only a personal character. With all respects we find ourselves unable to subscribe to the view taken in his case.

23. Coming to the facts of the second appeal, it has already been pointed out that the old plots included in the agreement of sale were included in the joint chak of the parties except plot No. 172 with an area of 06 acres and in lieu thereof, plot No. 164, area .03 acres, was included in the chak. The plaintiff decree-holder was prepared to forego has claim in respect of the substituted plot No. 164 and he was prepared to purchase the other plots included in the chak for the same consideration even after excluding plot no. 164. Indeed, the plaintiff has already moved an application dated 17th March, 1975 to the same effect. We, therefore, see no difficulty in enforcing the decree in respect of the chak. This is also warranted by Section 12(2) of the Specific Relief Act as well. Section 12 of the Specific Relief Act pertinently reads :

'12 (1) Except as otherwise hereinafter provided in this section, the court shall not direct the specific performance of a part of a contract.

(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion, to the whole in value and admits of compensation in money, the court may at the suit of either party direct the specific performance of so much of the contract as can be performed and award compensation in money for the deficiency,'

24. This is, however, not the position with regard to Civil Revision. There the original plots included in the agreement have undergone a substantial change and it will not be possible to enforce the agreement in respect of the substituted plots included in the chak.

25. In the civil revision, it has been further contended for the opposite parties that in view of the earlier order dated 6th October, 1966, the application under Section 151, Civil P.C. was not maintainable and the same would be barred by Sec, 11, Civil P.C.

26. It may be recalled that the earlier application filed by the plaintiff decree-holder for amending the decree by substituting the new plots was rejected by this Court in revision on the wrong assumption that the application under Section 152, Civil P.C. could be invoked only for rectifying the clerical or arithmetical error and it could not be utilised for the purpose of amending the decree. As stated earlier the record shows that even the earlier application for amendment of the decree was not an application under Section 152, Civil P.C. but it was an application under Section 151, Civil P.C. Be that as it may, the fact remains that in the earlier revision, the court did not consider the point before us. The court did not exercise the jurisdiction conferred under Section 115, Civil P.C. on the simple ground that the application was under Section 152, Civil P.C. and not under Section 151, Civil P.C. In the present case before us, the question for consideration is whether by an application under Section 151, Civil P.C., the decree could be amended on account of the changed circumstances. This question was not considered in the order dated 6th October, 1966. The application, therefore, could not be held to be barred by res judicata or even by constructive res judicata.

27. For the foregoing discussion, we partly allow the second appeal and set aside the judgment and decree or the Civil and Sessions Judge dated 5th January, 1966, and restore that of the trial count except for plot No. 164. The revision application is, however, dismissed. In the circumstances of the case, we direct the parties to bear their own costs.


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