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1972 DIGILAW 155 (ALL)

Shanti Prasad v. Akhtar

1972-03-31

GOPI NATH, SATISH CHANDRA

body1972
JUDGMENT Satish Chandra, J. - This is a Defendant's appeal. The suit was for specific performance of a contract of sale. Finding a conflict of opinion between Sugna v. Kali Ram 1966 AWR 641 and Chetan Singh v. Hira Singh 1969 ALJ 189, a learned Judge has referred this appeal to a Division Bench. 2. On 19th December, 1962, the Plaintiff-Respondent sold some plots of agricultural land to the Defendant-Appellant for Rs. 1,000/-. Thereafter the parties executed an agreement for reconveyance of the sold property to the Plaintiff within five years for the same sale consideration. In July, 1967, the Plaintiff by notice requested the Defendant to execute a sale deed after receiving the sale consideration, but the Defendant without any justifiable cause refused to do so. Hence the suit. 3. The Defendant raised several pleas of which only one survives now. It was urged that the plots in dispute came under consolidation operations 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 was hence incompetent to execute a deed of sale in respect of the plots mentioned in the agreement. The contract was discharged by reason of supervening impossibility. 4. The trial Court accepted this plea and dismissed the suit, but on appeal the decree was reversed and the suit decreed. The lower appellate Court held that the decision in Sugna v. Kali Ram (Supra) proceeded upon conflicting views and hence it was difficult to apply it. He preferred to rely upon the later decision in Chetan Singh v. Hira Singh (supra). The lower appellate Court held that the decision in Sugna v. Kali Ram (Supra) proceeded upon conflicting views and hence it was difficult to apply it. He preferred to rely upon the later decision in Chetan Singh v. Hira Singh (supra). Section 30, U.P. Consolidation of Holdings Act, provides: With effect from the date on which a tenure-holder 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-f (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 UP ZA and LR Act, 1950 (U.P. Act 1 of 1951) and settled with the tenure-holder; (d) the rights of the public as well as of individuals in or over land included in a chak following a declaration made under the proviso to Sub-section (2) of S.19-A shall cease to 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. 5. Under this provision 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 chak allotted to him. 5. Under this provision 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 chak allotted to him. It is the rights, title, interests and liabilities of the tenure-holder which stand transferred to the chak allotted to him. If a tenure-holder was subject to any liability in respect of such holding, he shall remain subject to the same liability, but in relation to the new chak. The proper query is whether the tenure-holder was subject to any liability in respect of his old holding. If he was, then he continues to be subject to the same liability. In the context of the phrase "rights, title, interests and liabilities," "liabilities" would mean legal liabilities. In Sugna's case Dhavan, J. held that the word "liability" meant legal liability, for example, liability to pay land revenue and so on. The learned Judge, however, held that an agreement to convey land does not create a liability in the land but only a personal right which can be enforced against the person making the agreement. Such a liability does not attach itself to the new plots. With respect, we are unable to agree with this view. 6. 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. The identity of the property in respect of which he was liable changes. 7. Section 55, Transfer of Property Act, says that the buyer and the seller of immoveable property respectively are subject to the liabilities and have the rights mentioned in the rules next following. Clause (d) of Sub-section (1) provides that the seller is bound, on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property. The duty of the seller to execute a proper conveyance of the property agreed to be sold is a liability of the seller recognised by law. In other words, it is an enforceable legal liability. The liability relates to the land mentioned in the agreement. Such liability, in our opinion, u/s 30(b), transferred to the new chak. 8. The duty of the seller to execute a proper conveyance of the property agreed to be sold is a liability of the seller recognised by law. In other words, it is an enforceable legal liability. The liability relates to the land mentioned in the agreement. Such liability, in our opinion, u/s 30(b), transferred to the new chak. 8. Clause (e) of Section 30, Consolidation of Holdings Act, specifically provides for "creation" of encumbrances like lease, mortgage, etc., on the new holding. That would show that the legislative intent in using the term the "tenure-holder shall have the same liabilities" in Clause (b) was to give it a wider meaning than liabilities which attach to the land like a mortgage, lease, etc. In our opinion, Section 30 includes a liability u/s 55(1)(d), Transfer of Property Act and such a liability is enforceable against a tenure-holder in respect of the new chak. 9. We have perused the decision in Chetan Singh's case and we agree with the conclusion reached there, though the point was not discussed in that case. 10. In the present case the lower appellate Court has found that the chak allotted to the Defendant represented his old holding which was the subject-matter of the agreement to sell. In our opinion, the Plaintiff was entitled to enforce the agreement against the new chak. The suit was rightly decreed. 11. In the result, the appeal fails and is accordingly dismissed with costs.