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Lala Sri Ram and anr. Vs. Dhani Ram Gupta - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 676 of 1972
Judge
Reported inAIR1974All358
ActsUttar Pradesh Consolidation of Holdings Act, 1954 - Sections 5(2), 9(1), 30 and 52(2)
AppellantLala Sri Ram and anr.
RespondentDhani Ram Gupta
Appellant AdvocateR.P. Agarwal, Adv.
Respondent AdvocateK.C. Saxena and ;Sant Prakash, Advs.
DispositionRevision dismissed
Excerpt:
property - specific performance - sections 5 and 52 of u.p. consolidation of holdings act, 1954 - land gone in hands of third party - suit for specific performance - held, where decree is capable of execution, specific performance can be made. - - such a suit would clearly fall within the purview of the phrase 'declaration of rights or interest in any land lying in the area' as used in section 5 (2) of the act......of holdings act, tentatively took the view that it may be possible to hold that a right to get a sale deed executed in respect of land is a right in relation to the land and as such it may be possible to file an objection before the consolidation authorities in respect of such a right and in such an eventuality the same matter would be concurrently answered in two forms with the possibility of conflicting decisions. he was of the view that this aspect of the matter had not been considered in chattan singh's case, 1969 all lj 189 (supra), and this being so, he referred the case to a larger bench. it is useful to extract section 5 (2) (a) and section 9 (1) (a) (i) of the act at this stage for the decision turns on the interpretation to be put on these two sections:--'(5) (2) effect of.....
Judgment:

C.S.P. Singh, J.

1. This revision has come up before us on a reference made by a learned single Judge. The facts relating to the revision are these. Ratan Lal sold certain Bhumidhari plots of land to Shri Ram, and Shri Ram subsequently executed an agreement to reconvey the property within a period of two years, Shri Ram did not reconvey the property and as a result, Ratan Lal filed a suit for specific performance, which was decreed Ratan Lal then transferred his right to one Dhani Ram, and Dhani Ram made an application under Order XXI, Rule 16 of the Code of Civil Procedure on 19-12-1963 for execution of the decree as an assignee of the decree-holder. In spite of transferring his rights to Dhani Ram, Ratan Lal also moved an application for execution of the decree. The execution proceedings ended in a compromise on 26-5-1964 and Ratan Lal received an amount of Rs. 7,000 and the decree was struck off. Shri Ram, the first vendee from Ratan Lal objected to the maintainability of the application filed by Dhand Ram. The objections filed by Shri Ram were upheld and the execution application of Dhani Ram was dismissed on 9-10-1964. Dhani Ram preferred an appeal against this order. During the pendency of this appeal, a notification under Section 4 of the U. P. Consolidation of Holdings Act was issued and an objection was raised by the respondents to the effect that the appeal had abated on account of notification under Section 4 of the U. P. Consolidation of Holdings Act. The appellate court relying on the decision in the case of Chattan Singh v. Hira Singh, (1969 All LJ 189) held that the appeal did not abate. Shri Ram thereafter filed a revision in this Court.

2. The learned Single Judge after referring to Section 5 (2) (a) and Section 9 (1) (a) (i) of the U. P. Consolidation of Holdings Act, tentatively took the view that it may be possible to hold that a right to get a sale deed executed in respect of land is a right in relation to the land and as such it may be possible to file an objection before the consolidation authorities in respect of such a right and in such an eventuality the same matter would be concurrently answered in two forms with the possibility of conflicting decisions. He was of the view that this aspect of the matter had not been considered in Chattan Singh's case, 1969 All LJ 189 (supra), and this being so, he referred the case to a larger Bench. It is useful to extract Section 5 (2) (a) and Section 9 (1) (a) (i) of the Act at this stage for the decision turns on the interpretation to be put on these two sections:--

'(5) (2) Effect of notification under Section 4 (2) (1).

(2) Upon the said publication of the notification under Sub-section (2) of Section 4, the following further consequences shall ensue in the area to which the notification relates, namely--

(a) every proceeding for the correction of records and every suit and proceeding in respect of declaration of rights or interest in any land lying in the area, or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision shall, on an order passed in this behalf by the court or authority before whom such suit or proceeding is pending, stand abated :

Provided that no such order shall be passed without giving to the parties notice by post or in any other manner and after giving them an opportunity of being heard :

Provided further that on the issue of a notification under Sub-section (1) of Section 6 in respect of the said area or part thereof, every such order in relation to the land lying in such area or part, as the case may be, shall stand vacated.'

'9. Issue of extracts from records and statements, publication of records mentioned in Sections 8 and 8-A and the issue of notices for inviting objections.

(1) Upon the preparation of the records of the statements mentioned in Sections 8 and 8-A, the Assistant Consolidation Officer shall--

(a) correct the clerical mistakes, if any, and send, or cause to be sent, to the tenure-holders concerned, and other persons interested, notices containing relevant extracts from the current annual register and such other records as may be prescribed showing--

(i) their rights in and liabilities in relation to the land;...'

3. Before we consider the question as to whether a claim of this type falls under Section 5 (2) (a) of the Act, and refer to the various decisions on this point, it is necessary to ascertain the rights which the parties were claiming said which was the subject-matter of dispute. After Ratan Lal executed the sale-deed in favour of Shri Ram, Shri Ham became the Bhurnidhar of the property, and till such time that the property was not reconveyed, neither Ratan Lal, nor Dhani Ram could claim rights of a Bhumidhar in the land in question. The only right which Ratan Lal or Dhani Ram could claim was for reconveyance of the property and this was based on the agreement executed by Shri Ram in their favour. It has been seen that the suit for specific performance of the agreement for reconveying of the property had been decreed before the enforcement of the consolidation in the village and that decision had become final, as no appeal etc. appears to have been filed. The only dispute that remained when the notification under Section 4 of the Act was issued was as to the execution of a sale deed in respect of the land. Now, so far as Dhani Ram is concerned, he could not seek any declaration of rights or interest in the land, inasmuch as the only rights that had accrued to him by then was to have a sale deed executed in respect of the land: before this, it was Shri Ram in whom the rights and interest in the land inhered. The rights which had accrued to him by that time were personal as against Shri Ram. So far as Shri Ram is concerned, as he was already a Bhumidhar of the land, he could not also sue for declaration of his right as till the execution of the sale deed, he would have no cause of action for seeking such a declaration. This being so, the case would not be covered under the first part of Section 5 (2) (a) of the Act. The question, as has been rightly posed by the learned Single Judge is as to whether the execution of the decree sought for by Dhani Ram would fall within the expression 'or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act.' We have to see as to whether the U. P. Consolidation of Holdings Act provides a machinery for the adjudication of the claim of Dhani Ram for execution of the sale deed.

4. It is now necessary at this stage to refer to some decisions cited at the Bar. In (1969 All LJ 189), a suit for specific performance of a contract of sale had been filed. The appellate court allowed the appeal and decreed the suit. During the pendency of the appeal, the land in dispute had come under consolidation operation, In the second appeal filed in this Court, it was urged that the suit should have been stayed under Section 5 (b) of the U. P. Consolidation of Holdings Act. It was held that Section 5 (b) of the Act governed only such suits which were for declaration of rights, title and interest in land, and did not govern suits for specific performance of a contract. It was held that inasmuch as there was no provision under the Consolidation Act for granting a decree for specific performance of contract, or to execute such a decree, Section 5 (2) (a) of the Act did not apply In the case of Jagarnath Shukla v. Sita Ram Pande, (1969 All LJ 768), a question arose as to whether suits for cancellation of sale deeds in respect of agricultural plots, which were pending on the date of the notification under Section 4 of the Act, should be abated under Section 5 (2) of the Act. It was held that inasmuch as consolidation authorities could go into the question of validity of deeds of exchange, wills and decrees, it appeared that the legislature intended that such question should be decided by consolidation authorities, and such suits should be abated.

5. In Rudra Pal Singh v. Ram Pal Singh, 1971 All WR (HC) 714 = (AIR 1972 All 67), a suit for partition had been filed under Section 49 of the U. P. Tenancy Act, 1939. A preliminary decree in that suit was passed and had become final. The final decree for partition could not be prepared on account of various objections raised by one of the parties. While these objections were pending the village in which the land was situate was brought under consolidation operations by a notification under Section 4 of the Act. The dispute was raised by parties before the consolidation authorities and the Deputy Director of Consolidation ultimately passed an order which ran counter to the decision of the Board of Revenue given in the suit. A writ petition was thereafter filed in this Court. One of the questions that arose was whether the consolidation authorities were entitled to reopen the controversy, and take a view contrary to that given by the Board of Revenue, while passing the preliminary decree. It was held that inasmuch as the preliminary decree had become final, it was not open to the consolidation authorities to go behind that decree. It was also held that the affect of Section 5 (2) of the Consolidation Act was to abate only a part of the suit i.e. the proceedings taken for the preparation of the final decree. This decision is not of much assistance in the present controversy, as the point raised there was different. In Second Appeal No. 153 of 1961 decided by K. B. Asthana, J. on 1-10-1963 (All), one Chhajju Singh had transferred his land to Dasaundi. On the very day that the transfer was effected Chhajju Singh and Dasaundi had entered into an agreement by which Dasaundi was to reconvey the land to Chhajju Singh within a period of three years. The village was brought under consolidation operation, but before consolidation operations were completed Chhajju Singh filed a suit for specific performance of the contract of reconveyance. During the pendency of the suit, consolidation operation 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, Dasaundi and his brother got other lands which were included in a joint chak. In view of this, Chajju Singh impleaded Sibban Lal, the person who had been allotted the part of the disputed plot, as a defendant to the suit. The learned Single Judge took the view that the suit for specific performance had to fall, as the contract for reconveyance had become impossible, on account of the fact that a part of the disputed plot had gone to the chak of Sibhan Lal, and that the remaining portion had come jointly in the name of Dasaundi and his brother. He also repelled the argument that the contract of reconveyance created an encumbrance on the land.

6. Now, so far as Jagarnath Shukla's case, 1969 All LJ 768 is concerned, that is not strictly relevant, as there is an essential difference between a suit for cancellation of a sale deed and that for specific performance of a contract. In a suit for cancellation of a sale deed, the plaintiff in substance asserts that the sale deed was invalid and that the vendee does not have any title to the property demised, and that it is the plaintiff who is the owner of the property. In such a suit, where it relates to agricultural land, the plaintiff asserts that the vendee is not the Bhumidhar, and it is the plaintiff who is tenure-holder of the land. Such a suit would clearly fall within the purview of the phrase 'declaration of rights or interest in any land lying in the area' as used in Section 5 (2) of the Act. So far as a suit for specific performance is concerned, that is based on the validity of the contract for sale or reconveyance. The plaintiff in such a suit does not acquire any right or interest in the land till such time that a sale deed is executed in his favour. The other reason which impelled the Bench to hold that such a suit should be abated was the difficulty that even in the event of a suit for cancellation of a sale deed being decreed by the civil court, effect to the decree could not be given after consolidation had been effected. So far as this difficulty is concerned, that no longer survives as Section 52 (2) which now runs as under makes provisions for giving effect to decrees of competent courts, by cosolidation authorities even after the close of consolidation operations:--

'52 (2). Notwithstanding anything contained in Sub-section (1) any order passed by a court of competent jurisdiction in cases of writs filed under the provisions of the Constitution of India, or in cases or proceedings pending under this Act on the date of issue of the notification under Sub-section (1), shall be given effect to by such authorities as may be prescribed and the consolidation operations shall, for that purpose be deemed to have not been closed.'

The only two cases which touch the controversy involved are the decisions in Chettan Singh's case, 1969 All LJ 189 (supra) and Second Appeal No. 153 of 1961 decided on 1-10-1963 (All.). We are of the view that so far as Chettan Singh's case is concerned, in so far it lays down that there was no provision in the Act for granting relief for specific performance of contract, and neither was there any provision for executing a sale deed in pursuance of a decree passed in such suit expresses the correct position in law, as a bare perusal of the Act shows that there is no provision for execution of a sale deed. So far as it lays down that the ultimate decree for specific performance has, in view of the consolidation proceedings, to relate to land allotted in lieu of the land agreed to be sold, does not appear to be correct. It has been seen that Section 52 (2) of the Act now contains a machinery for giving effect to a decree passed by a competent court. When a suit for specific performance is decreed, all that the decree can direct is to ask the judgment-debtor to execute the sale deed failing which the court itself executes it. The consolidation authorities, it has been seen cannot execute a sale deed, and the civil court or the judgment-debtor will have to do so. 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, and if the chaks have become final, the disputed land if it is allotted to third persons, ceases to belong to the judgment-debtor, and as such neither can the judgment-debtor, nor can the court execute a sale deed in respect of the substituted land, for it would amount to enforcing a new contract, which is not permissible. 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). The view of Satish Chandra, J. on this aspect as such, with respect, does not lay down the correct law. Section 30 of the Act on which reliance is placed by the respondents is also of not assistance as it relates to right j in the land, as opposed to a purely personal right to get a sale-deed executed in respect of the land. On this aspect of the matter, we are in agreement with the decision of Asthana, J. in Second Appeal No. 153 of 1961 decided on 1-10-1963 (All). We now proceed to give our reasons for the view that the execution proceedings for the execution of a sale deed do not abate. We have already extracted Section 5 (2) of the Consolidation of Holdings Act and also Section 9. It has been seen that no suit for declaration of rights and interest in the disputed land can be filed by a person who seeks specific enforcement of his agreement for sale, and neither does the Act contain any machinery for execution of a sale deed. The question is whether the decree for execution of the sale deed would come within the phrase 'for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act.' The only section relevant for the present controversy would be Section 9 (1) (a) (i) and if this right cannot be agitated under this section, the execution proceedings would not abate. Section 9 (1) (a) (i) paraphrased would run thus:

'Their rights in relation to the land -- their liabilities in relation to the land.'

Can the right or liability to execute the sale deed be said to be 'in relation to the land'? We are of the view that it cannot. The rights which are created by a contract for sale are purely personal rights and they do not attach to the land. It is only after a sale deed is executed that rights in relation to the land arise. Till the deed is not executed either by the judgment-debtor or by the court, the right in the first case is personal as against the judgment-debtor, and in the second case only a duty is cast to execute the sale-deed. We are thus of the view that the appeal filed by Dhani Ram did not abate under Section 5 (2) of the Act and the revision is accordingly rejected Parties shall bear their own costs.


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