O.P. Garg, J.
1. This is defendant's second appeal under Section 100 of the Code of Civil Procedure against the order dated 14.4.1977 whereby their First Appeal No. 137 of 1974 was dismissed.
2. The appellants were the defendants of the first set in Original Suit No. 234 of 1971 which was filed by the plaintiff-respondents for the specific performance of the agreement dated 1.7.1968 followed by an additional agreement (Tltamma) dated 24.10.1968 for sale of the properties covered by the agreement. The appellants as defendants contested the suit on verity of grounds. After due contest, the suit for the relief of specific performance was decreed against the present appellants on 21.2.1974. The operative portion of the order of the trial court and as affirmed in the First Appeal No. 137 of 1974 runs as follows :
'The plaintiffs' suit for specific performance of theagreement for sale dated 1.7.68 and agreement for sale 'titimma satta' dated 24.10.68 and agreement dated 19.11.68 directing the defendants not to execute sale deed in respect of the entire property shown under schedule 'Ka' and to extent of their share in the property shown under schedule 'Kha' and 'Chha' to the extent of 1/4 share in the property shown under schedule 'Ga' in accordance with the terms and conditions of the aforesaid agreements for sale ; and for directing the defendant 1 set to obtain Bhumidhari certificate in respect of the plots (property) shown under schedule 'Cha' to the extent of their 3/4 share ; to the extent of 1/2 share in the plots shown under schedule 'Aunga' and to the extent of their 1/3 share in the plots shown under schedule 'Cha' after depositing the requisite rent in respect thereof and thereafter for executing sale deed in respect of the properties in suit as detailed and bounded at the foot of the plaint ; by the defendant Nos. 1 and 2 in favour of the plaintiffs after receiving the remaining sum of Rs. 13,000 as specified in the said agreement dated 1.7.68. 24.10.68 and 19.11.68 is hereby decreed with costs against the defendants Nos. 1 and 2. The defendant Nos. 1 and 2 are directed to obtain bhumidhari certificates in respect of the aforesaid sirdari Plots to the extent of their respective shares therein, as specified above, within a period of two months and to execute the sale deed in respect of the properties in suit in favour of the plaintiffs to the extent of their respective shares in the respective propertes as specified above after receiving the remaining consideration of Rs. 13,000 from the plaintiffs within a period of two months from the date of the judgment falling which the same shall be done at the expenses of the defendant Nos. 1 and 2 through the Court.'
The properties which are subject matter of the agreement for sale are situate in two different villages, namely, Mureri and Neema, Pargana Katehar district Varansi. After the execution of the agreement and before filing of the original suit for specific performance, these two villages came under the consolidation operations as envisaged under the U.P. Consolidation of Holdings Act. 1953 (hereinafter referred to as 'the Act'). After protracted proceedings, resulting in disposal of appeals, revisions, etc., the consolidation operations came to be denotified under Section 52 of the Act during the pendency of the present second appeal. During the pendency of this appeal, a number of documents were sought to be filed along with an application under Order XLI, Rule 27 of the Code of Civil Procedure to depict the position that on account of the consolidation operations, the appellants were deprived of their original holdings and were left with a small area of the old plots. On behalf of the plaintiff-respondents, objection had been filed against the application under Order XLI, Rule 27 of the Code of Civil Procedure. The consideration of the said application was deferred and is to be decided along with this judgment.
3. Heard Sri Ashok Bhushan, learned count:! for the defendant-appellants as well as Sri S.N. Singh appearing on behalf of the plaintiff-respondents, at considerable length.
4. The appeal was admitted in 1977 without formulating the points of Jaw for determination. After hearing and taking into consideration the respective submissions of the learned counsel for the parties, the following precise substantial questions of law are formulated for determination so that this second appeal may effectively be decided :
(1) Whether the provisions of Order XLI, Rule 27 of the Code of Civil Procedure can be Invoked to file documents in a second appeal? Or, additional evidence is receivable as a result of subsequent developments whichhad taken place on account of operation of law?
(2) Whether the defendant-appellants are legally bound to specifically perform contract for sale of their old holdings after their consolidation and having lost proprietary rights and possession over the land or the substantial area thereof which was subject matter of the agreement?
(3) Whether the liability of the defendant-appellants to specifically perform the contract for sale of the land (subject matter of the agreement) stands transferred to the land of the newly carved out chafe allotted to them during consolidation operations?
(4} Whether a decree for specific performance of the contract cannot be passed in view of the prohibition against fragmentation of holding contained in Section 168A of the U.P. Zamindari Abolition and Land Reforms Act?
Question No. 1.
5. The appellants have moved an application under Order XLI, Rule 27, Code of Civil Procedure on 21.11.1990 along with an affidavit of Sudhakar Pandey (appellant No. 1) for permission to bring on record the certified copies of various orders passed and C.H. Forms prepared during the consolidation proceedings. By and large, these documents came into existence after the present second appeal has been Instituted before this Court in the year 1977. To put briefly, the plots which were the subject matter of the agreement for sale and in respect of which a decree for specific performance had been passed had gone out of the possession of the appellants as during consolidation proceedings, they had been allotted in the chaks of other persons. The various orders which have become final, during the consolidation proceedings are now sought to be brought on record to establish the plea that since appellants have lost possession ofthe substantial area, contract for specific performance stands frustrated and is not capable of being specifically enforced. The contesting plaintiff-respondents have challenged the maintainability of the application under Order XLI, Rule 27, Code of Civil Procedure on the ground that filing of additional evidence in second appeal is not permissible. The fate of this appeal would spin and the parties would swim or sink on/with the orders allowing or disallowing the application under Order XI.I. Rule 27. Code of Civil Procedure. If the application is rejected, obviously the appellants shall have no case, as concurrent findings of fact have been recorded by (he two courts below that the plaintiff-respondents are entitled to get the agreement specifically enforced through the agency of the Court. Therefore, the question of recelvabillty of the documents on the application of the appellants under Order XLI. Rule 27. Code of Civil Procedure requires to be scrutinzed with all circumspection.
6. The provision of Order XLI Rule 27 Code of Civil Procedure reads as follows :
'Production of additional evidence in appellate court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court: But if:
(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(aa) The party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) The appellate court requires any document to be produced or any witness to beexamined to enable it to pronounce judgment, or for any other substantial cause.
the appellate court may allow such evidence or document to be produced, or witness to be examined.
(2) Where additional evidence is allowed to be produced by an appellate court, the Court shall record the reason for its admission.
Order XL1I, Rule 1, Code of Civil Procedure provides that the rules of Order XL1 shall apply, so far as may be, to appeal from appellate decrees which means that Rule 27 of Order XLI shall be applicable in case of second appeal also. Sri S.N. Slngh, learned counsel for the plaintiff-respondents, however, placed reliance on the decision of a Division Bench of Andhra Pradesh High Court in Anisetti Bhagyawathi v. Andaturi Satyanamyana and others, AIR 1992 AP 304. In which it was held that the High Court while hearing Second Appeal cannot go into the questions of fact. Order XLII which says that the provisions of Order XLI would apply to the Second Appeal has clarified the same by adding the expression 'as far as may be'. Therefore, the contention that in view of the provisions of Order XLI, Rule 27. Code of Civil Procedure, additional evidence has to be permitted in Second Appeal cannot be accepted. The above observations were based on the decision of the Apex Court in Balai Chandra v. Shewdhari Yadav, AIR 1978 SC 1062, in which the view taken was that the court hearing the Second Appeal after granting amendment could not take over the function of the trial court or the first appellate court and undertake appreciation of evidence and record findings of fact and that was not the function envisaged by the Code of the Court hearing second appeal under Section 100, Code of Civil Procedure and that was crystal clear from the provision contained in Section 103 which defines the power of the High Court to determine a question of fact while hearing second appeal. It was further pointed out by the Apex Court that the power underSection 103. Code of Civil Procedure is limited to evidence on record which again is sufficient to determine an issue of fact necessary for the disposal of the appeal and which has not been determined by the lower appellate court or which has been wrongly determined by such court. The law laid down in Anisetti Bhagyawathi's case (supra) is not of universal application and the various observations made therein have to be confined to the peculiar facts of that case only. In that case, the second appeal arose out of the suit filed for possession of the property as scheduled in the plaint. The suit was decreed by the trial court. The first appellate court confirmed the judgment and decree of the trial court. The second appeal filed by the defendant was dismissed. Thereafter, the review petition was filed by the defendant on the ground that she discovered a new and Important evidence which after exercise of due diligence was not within her knowledge and so it could not be produced by her at the time when decree was passed in the second appeal. The court took the view that the scope of the Second Appeal is confined to substantial questions of law framed at the stage of admission of the appeal or subsequently at the time of hearing by the High Court. The second appeal is not. as a matter of right, but may be admitted only if the High Court is satisfied that the case involves substantial question of law. It was in this context that the Division Bench of the Andhra Pradesh High Court took the view that the defendant cannot be allowed to file additional evidence after its dismissal through review application. The above decision cannot be treated to be an authority that in no circumstance additional evidence can be taken in second appeal.
7. Sir S. N. Singh took pains to point out that the claim in the suit is to be determined as on the date of the Institution of suit and the court's procedural delays cannot affect the rights crystallized in initial cause of action. He founded his submission on the decision of the Apex Court in Rameshwar and others v. Jotram andothers, AIR 1976 SC 49, in which the earlier decision of the Apex Court in P. Venkateswaratu v. Motor and General Traders, AIR 1975 SC 1409, was dealt with in connection with adjectival activism relating to post-institution circumstances. In that case, two propositions were laid down. Firstly, it was held that 'it is basic to our procedural Jurisprudence that the rights to relief must be judged to exist as on the date a suitor institutes legal proceedings'. This is an emphatic statement that a right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. Later developments cannot defeat his right because, had the Court found his case to be true. the day he sued, he would have got his decree. The Court's procedural delays cannot deprive him of legal justice and rights crystallized in the initial cause of action. The above position, it was observed, found support in Shajan Lal v. State of Punjab, 1971 (1) SCC 34. The impact of the subsequent happenings has been spelt out in Rameshwar's case (supra) after discussing a number of other decisions in paragraph 9 of the report. The ultimate view taken was that Courts can, however, take note of subsequent events and mould the relief accordingly but this can be done only in exceptional circumstances. Rights vested by the Statute cannot be divested by this equitable doctrine. It was cautioned that while taking cautious Judicial cognizance of 'post natal' events, even for limited and exceptional purposes, no Court will countenance a party altering by his own manipulation a change in situation and plead for relief on the altered basis. Sri Singh vehemently asserted that the application under Order XLI, Rule 27. Code of Civil Procedure filed by the appellants cannot be allowed as it would amount to re-opening of the case and setting at naught the decree for specific performance which has been affirmed in first appeal, it was further urged that it is not a case where exceptional circumstances have been pleaded so that this Courtin second appeal may take into cognizance the subsequent events.
8. There can be no quarrel with the proposition of law as propounded by Sri S.N. Singh, learned counsel for the plaintiff-respondents but the fact remains that it is equally well established principle of law that if the subsequent events are such which were not the result of the manipulation of a party or where the outcome of the change in circumstances is the product of operation of law, there is no absolute prohibition to take on record the evidence to gauge the circumstances which would render the granting of the relief impossible. There may be situations where the decree which was passed by the trial court and as affirmed in appeal may stand frustrated by operation of law. In that event, the Court hearing the second appeal would not shut its eyes to the stark realities.
9. Sri Ashok Bhushan, learned counsel for the appellants urged that the application under Order XLI. Rule 27, Code of Civil Procedure cannot be defeated or thrown out on technical grounds or the procedural conundrum. He also maintained that if the circumstances have changed and the appellants have lost interest in the property which was subject matter of specific performance, it is necessary to take on record additional evidence in the form of the orders passed by the statutory authorities so that the subsequent developments may be considered. According to him, if the documents are not taken on record, this Court would not be in a position to gauge the impact of the post appeal events. Sri Bhushan placed reliance on the decision of the Apex Court in M. M. Quasim v. Manohar Lal Sharma and others, AIR 1981 SC 1113, in which the High Court was criticized as having fallen in error in rejecting the application under Order XLI, Rule 27, Code of Civil Procedure on the narrow ground that there was no proper application or it did not meet the requirement of the situation. It was observed that no note of subsequent events can be taken in the absence of the additional evidence filed throughapplication under Order XLI, Rule 27, Code of Civil Procedure. Where the interest of the landlord in the properly was extinguished as a result of the partition and the said property was allotted exclusively to another sharer, the view taken was that subsequent event has to be properly evaluated. The Apex Court set aside the order passed by the High Court in second appeal and remanded the case to the first appellate court with the direction that after granting application under Order XLI, Rule 27, Code of Civil Procedure and taking the certified copy of the decree in partition Suit No. 4 of 1974 on record and after giving an opportunity to the parties before it to lead any additional evidence pursuant to this additional evidence shall decide the case with reference to the two formulated legal questions. A reference was also made to the decision in Kanya Ram and others v. Rajendra Kumar and others, AIR 1985 SC 371. In which it was held that it cannot be said that the subsequent change in the status of the legal representatives as small land holders could not be taken into consideration. The decision of the Apex Court in Rameshwar's case (supra) was distinguished.
10. After having given thoughtful consideralion to the matter, I find that it is not a case where the appellants may be said to have not exercised due diligence in bringing on record the documents which were within their knowledge or could not, after exercise of due diligence be produced by them at the time when the decree appealed against was passed. The various orders and forms which are now sought to be brought on record by invoking the provisions of Order XLI, Rule 27, Code of Civil Procedure, came into being after the filing of the present second appeal. The consolidation proceedings had commenced in the two villages well before the institution of the suit for specific performance but they took final shape after protracted litigation after the second appeal had been filed The appellants could not have possibly filed the documents beforethe first appellate court as they were not then in existence. The additional evidence which is sought to be filed is in the form of public documents and its filing is necessitated on account of conclusion of the consolidation proceedings under the Act after the filing of the present appeal. The present appeal cannot effectively by decided without taking on record the documents by which rights of the appellants in the land and other properties -- subject-matter of agreement have come to be extinguished and new plots in lieu thereof have been allotted. As said above, there is no absolute prohibition that additional evidence cannot be received in second appeal. In view of the above facts, the application under Order XLI, Rule 27, Code of Civil Procedure cannot be said to be mala fide. On the other hand, the filing of the additional evidence has become an absolute essentiality on account of loss of Interest of the appellants in the land. Accordingly, application under Order XLI, Rule 27, Code of Civil Procedure is allowed and all the documents filed therewith are taken on record so that the subsequent events which occurred on account of operation of law may be evaluated.
Question Nos. 2 and 3.
11. Now the merits of the contention that the specific performance of the agreement has been rendered impossible or impracticable on account of frustration of the contract for sale may be probed with a view to determine the legal question Nos. 2 and 3, formulated above. It is an Indubitable fact that substantial area of the plots have gone out of possession of the appellants as they have been allotted in the chaks of third parties carved out during the consolidation proceedings. Two charts 'A' and 'B' have been submitted on behalf of the appellants with a supplementary affidavit dated 8.5.1998 which indicate that out of an area of 1.80 ares of 15 plots (Nos. 163, 166. 154, 169, 165. 149. 156. 158. 197, 155, 179. 194. 174. 195, and 175) of village Mureri, an area admeasuring ; 14-1/4 acres only wasleft in the hands of the appellants and similarly, out of total area of 2.77 1/2 acres of the 14 plots (Nos. 166. 167, 32. 71, 158. 135, 139, 157, 159. 23/291, 147, 148, 149, and 150) situate in village Neema, a small area of 0.32 acres remained in their possession. The appellants thus lost possession of the substantial area of the land covered by the agreement for sale on account of formation of chafes during consolidation operations.
12. Sri S.N. Singh learned counsel for the plaintiff-respondents suggested that the plaintiff-respondents are prepared to take the new land which has been allotted in the chak of the appellants in place of the land which was subject matter of agreement to sell. In support of his contention that this suggestion may be feasible and practicable on equitable consideration, reliance was placed on the decision of this Court in Khedu v. Indrapati. 1997 (88) RD 377. as well as the decision of the Apex Court in Rajeshwar and another v. Board of Revenue and others, JT 1994 (7) SC 440. In the latter case. the specific question for determination before the Apex Court was whether High Court was in error in holding that the suit filed by appellants was not maintainable in view of the change of identity of the land in suit due to consolidation proceedings. The Apex Court answered in affirmative by observing that the change of identity of lands in the course of consolidation proceedings has no effect upon the rights of the parties and it would be only a case of substitution of one property for the other and that title of the previous property gets attached to the substituted property.
13. Another limb of the submission of Sri S.N. Singh is that the defendant-appellants cannot be permitted to take advantage of their fraudulent act as after obtaining an interim order of stay in the present appeal, they, with a view to defeat the claim of the plaintiff-respondents, managed to get some other plots in place of their original plots although as per Section 19 (e) of the Act, every tenure holder, as far as possible, should be allotted a compact area atthe place where he holds largest part of his holding. Sri Singh elaborated the point by stating that the appellants manipulated to get some other plots in place of the original plots for which there was absolutely no justification as the rights of the plaintiff-respondents has already crystallized after the decree for specific performance, which was passed by the trial court as affirmed by the appellate court. In substance. the submission on behalf of the plaintiff-respondents is that the defendant-appellants entered into a collusive compromise which took place on 4.2.1984 in consolidation proceedings during the pendency of the present appeal and thereby with a view to frustrate the decree for specific performance, they paid good bye to the original plots and in substitution took new ones. Sri Singh placed reliance on the decision of this Court in Ram Laut Minor and another v. Bhadai and others, 1970 ALJ 416, to support the legal proposition that a person who is party to a fraud cannot take advantage of his own fraud. So far as legal position as asserted by Sri Singh is concerned, it is beyond the pale of challenge. Now the question is whether the assertion of Sri Singh is borne out from the material available on record or not. The submission that the defendant-appellants have played fraud during the consolidation proceedings and by entering into compromise, surrendered their original holdings in favour of new ones, does not stand the test of scrutiny. As a matter of fact, the plaintiff-respondents, particularly, the plaintiff-Vijay Narain Lal had filed an objection under Section 9A (2) of the Act claiming rights over the plots covered by the agreement for sale on the ground that in view of the registered agreement, the rights of the plaintiff-respondents shall be seriously jeopardized if the plots are not allotted in the chafes of defendant-appellants. The objection was rejected by a detailed order dated 27.1.1982 by the Consolidation Officer primarily on the ground that the plaintiff-respondents on the strength of mere agreement for saledo not acquire any right in the plots in question. The respective merits of the case of both the parties were discussed and the khatas of the defendant-appellants were also partitioned giving them different shares. The judgment of the Consolidation Officer which has been filed with the application under Order XLI, Rule 27. Code of Civil Procedure has been affirmed in appeal by order dated 7.5.1983 and also by the Deputy Director of Consolidation by order dated 5.2.1984. These documents are paper Nos. 3, 4, and 5 of the application under Order XLI. Rule 27, Code of Civil Procedure. The various documents brought on record by means of application under Order XLI, Rule 27, Code of Civil Procedure further indicate that the appellants had no role to play in the allotment of the land in their chafes and that in any case, the allotment of the plots in the chak was not based on any compromise. The compromise which has been referred to by Sri S.N. Singh. learned counsel for the plaintiff-respondents is dated 4.2.1984. A reading of the said compromise and the order passed by the Deputy Director of Consolidation makes it clear that the compromise was in regard to the partition of joint chaks. The defendant-appellants along with other co-sharers were allotted joint chafes as would be apparent from C.H. Form No. 23. The Consolidation Officer while deciding the application under Section 9A (2) has already directed for partition according to shares allotted to the co-shares, including the present defendant-appellants. The compromise was filed amongst the co-sharers with regard to partition of Joint chafes. As a matter of fact, as a result of partition, joint chafes were required to be partitioned so that each one of the co-sharers may have his separate chafes. It would also not be out of place to mention that in view of the stipulation in the agreement for sale dated 1.7.1968 in the form of condition No. 7, the sale was to be effected only after partition amongst co-sharers of the plots covered by the agreement has taken place. As a result of the consolidationoperations, most of the original plots or the substantial area of the remaining plots were lost to the defendant-appellants. The plea of fraud or manipulation as put into service on behalf of the plaintiff-respondents is not substantiated and is clearly in opposition to the material available on record.
14. As said above, the defendant-appellants have lost their rights of ownership and possession in most of the plots which were subject matter of the agreement as a result of the consolidation operations which took final shape during the pendency of the present appeal. Only a very small area of certain plots has come to the chafes of the defendant-appellants. Sri Ashok Bhushan, learned counsel for the defendant-appellants urged that in view of the consolidation proceedings and the fact that most of the original plots were not allotted in favour of the defendant-appellants, the contract for sale stands frustrated and cannot be given effect to. Sri Bhushan supported his point by making a reference to the authoritative pronouncement of the Apex Court in Pyare Lal v. Hori Lal, AIR 1977 SC 1226, in which point for determination was where in a suit for specific performance of agreement for sale, the defendant-seller pleaded that as new plots have been allotted as a result of consolidation of his holdings under the Act. he could not perform the agreement. It was held that the suit for specific performance was liable to be dismissed. The aforesaid decision came in the wake of the controversy before this Court on the question whether an agreement for sale, was rendered void under Section 56 of the Contract Act because of the order of consolidation allotting new plots for the original plots in respect of which the agreement for sale had been executed. Earlier a single Judge of this Court took the view in Sugna v. Kali Ram, 1996 All LJ 104. that the agreement became void and impossible of performance, and was not saved by Section 30 of the Act. A different view was taken by another single Judge in Chetan Singh v. HiraSingh. 1969 All LJ 189. In view of the above two conflicting decisions, the matter was referrd to a Division Bench of this Court in Shanti Prasad v. Akhtatar. 1972 ALJ 549. The Division Bench held that the duty of the seller to execute the conveyance of the property agreed to be sold was a liability recognised by law and was enforceable as the liability 'relates to the land mentioned in the agreement' under Section 3 (b) of the Act. The controversy, therefore, turned around the proper interpretation of Section 30 of the Act. which deals with the consequence which ensue on exchange of possession as a result of an allotment of a chak to the tenure holder. Overruling the decision of this Court in Shanti Prasad's case (supra), the controversy was resolved by the Apex Court in Pyare Lal's case (supra] interpreting the provisions of Section 30 of the Act. In paragraph 5 of the report, the Apex Court after taking into consideration the provisions of Section 30 of the Act, Section 54 of the Transfer of Property Act and Section 56 of the Contract Act laid down the following law.
'5. .....So when he lost thatproperty as a result of the scheme of consolidation and his rights, title and interests ceased in that property by virtue of clause (a) of Section 30 of the Act, the agreement for sale became void within the meaning of Section 56 of the Contract Act and it is futile to urge that they were saved by clause (a) or clause (b) of Section 30 of the Act.'
The erroneous view taken by this Court in Shanti Prasad's case (supra) was rectified.
15. Emphatic reliance has also been placed on a Full Bench decision of this Court in Mahendra Nath v. Baikunthi Devi. 1976 (2) ALR 21. which furnishes a complete answer to the submissions made by Sri S.N. Singh on behalf of the plaintiff-respondents. Relying upon the following observations of the Apex Court in Satyabrata Ghosh v. Mugnee Ram Hangar and Company, AIR 1954 SC 44 :
'According to the Indian law. which is embodied in Section 54 of the Transfer of Properly 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.'
'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 of 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.'
The view taken by the Full Bench was that a Court 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 hit by rule of frustration and such a contract could not be enforced nor a decree passed on the basis of such contract could be executed. The two firm decisions of the Apex Court in Pyare Lal's case (supra) and that of Full Bench decision of this Court in Mahendra Nath's case (supra) clinch the controversy that if the defendant-appellants have lost possession of the original plots which were subject matter of the agreement, specific performance of such agreement cannot be enforced as the contract for sate stands frustrated by operation of law. The two decisions in Rajeshwar and another (supra) and Khedu. (supra) relied upon by Sri S.N. Singh are of no avail as they are not squarely on the point and may be distinguished for a variety of reasons.Question No. 2 is accordingly decided.
Question No. 4.
16. Sri S.N. Singh learned counsel for the plaintiff-respondents vehemently urged that the plaintiff-respondents are prepared to get the contract for sale enforced against the substituted plots. As said above, the question of enforcement of the agreement for sale which stands frustrated does not arise. Even otherwise, such a suggestion is not acceptable in view of the provision of Section 168A of the U.P. Zamindari Abolition and Land Reforms Act which prohibits fragmentation of the holdings consolidated during consolidation operations. It is well established that after the substitution of the original plots by the new ones, during the consolidation operation. the defendant-appellants have come to retain only a very minor portion of the original plots in their chafes. To make up the deficiency of the area of the original plots, the new chaks have been carved out consisting of plots of other persons. If the specific performance of the contract is permitted, then it would undoubtedly result in fragmentation of the holdings in the chak which is clearly prohibited under Section 168A of the U. P. Zamindari Abolition and Land Reforms Act. A specific performance of the contract cannot be enforced in the teeth of the provisions of Section 168A of the U. P. Zamindari Abolition and Land Reforms Act. This aspect of the matter came to be considered by the Apex Court in Mithlesh Kumari v. Fateh Bahadur. 1991 (2) SCC 236. The decree of specific performance of the contract was set aside by the Apex Court on the ground that it offended the provisions of Section 168A of the U. P. Zamindari Abolition and Land Reforms Act.
17. The suggestion of Sri S. N. Singh that if the application under Order XLI, Rule 27. Code of Civil Procedure is allowed by this Court and documents sought to be filed are taken on record in that event, it would be appropriate to remand the case either to the trial court or 1st appellate court to decide thecontroversy afresh. This argument does not persuade me to remand the case as, in my view. It would be unnecessary. There is no dispute about the finding of facts recorded by the two courts below. The legal position, as has been discussed above, is that the contract for sale stands frustrated on account of operation of law and. therefore, it cannot enforced. In view of this firm legal position, the trial court or the first appellant court are not required to give a fresh look to the matter. The subsequent events or the developments which have occurred during the pendency of the present appeal have to be taken into consideration by this Court Itself. The parties had already had protracted litigation for the last more than three decades and now to remand the case would not be in the interest of either of them.
18. In the conspectus of the above factual and legal position, the decree for specific performance of the agreements dated 1.7.1968 and 24.10.1968 passed by the trial court and as affirmed by first appellate court cannot be executed or enforced on account of subsequent development that the contract for sale itself stands frustrated as the defendant-appellants have lost interest and possession in the original plots during the consolidation operations. These subsequent developments which have occurred on account of operation of law cannot be overlooked. In view of the decision of the Apex Court in M. M. Quasim (supra) and Kanya Ram (supra), this Court is bound to consider the subsequent events and mould the relief accordingly as may be Justified in the circumstances of the case. Since the decree for specific performance cannot be executed, the only relief to which the plaintiff-respondents are enttttled is refund of earnest money of Rs. 5.000 (Rupees Five Thousand) with the agreed rate of Interest of 12 per cent per annum as contemplated in clause 4 of the original agreement dated 1.7.1958.
19. The appeal is allowed and the decree for specific performance of the contracts dated 1.7.1968 and24.10.1968 passed by the trial court on 21.2.1974 in Suit No. 234 of 1971 and as affirmed by the appellate court by order dated 14.4.1977 in First Appeal No. 137 of 1974 is hereby set aside and the Suit No. 234 of 1971 filed by the plaintiff-respondents is decreed for recovery of Rs. 5,000 as earnest money with interest at the rate of 12 per cent per annum to be calculated for the period 1.7.1968 till the date the amount is actually paid. Costs are made easy.