Surat Ram v. Vijaya — 1980 DIGILAW 973 (ALL)

JUDGMENT Amitav Banerji, J. - This is a second appeal by the defendant. The question raised in this second appeal is a short one. The question is whether the contract entered into between the parties for the sale of three Bhumidhari plots has become void and incapable of performance in view of the coming in force of the U.P. Consolidation of Holdings Act and the proceeding thereunder. 2. This question has arisen earlier also in the case of Sugna v. Kali Ram, (1966 All LJ 1004) and Chetan Singh v. Hira Singh, (1969 All IJ 189) before a Division Bench of this Court in the case of Shanti Prasad v. Akhtar, (1972 All LJ 549) and subsequently before a Full Bench in the case of Mahendra Nath v. Smt. Baikunthi Devi. AIR 1976 All 150 : (1975 All LJ 278). The matter has also been considered by the Supreme Court in the case of Piarey Lal v. Hori Lal, ( AIR 1977 SC 1226 ). There is a later Supreme Court decision against the decision of the Full Bench of this Court in the case of Mahendra Nath v. Smt. Baikunthi Devi (supra) reported in AIR 1977 SC 1514 - Smt. Baikunthi Devi v. Mahendra Nath. It will, therefore, be necessary to consider the law as laid down by their Lordships of the Supreme Court. It may be mentioned here that the view taken in the case of Chetan Singh v. Hira Singh (supra) was approved by the Division Bench in the case of Shanti Prasad v. Akhtar (supra), but the view of the Division Bench was expressly overruled in the case of Mahendra Nath v. Smt. Baikunthi Devi. The Supreme Court in the case of Piarey Lal v. Hori Lal (supra) without making any reference to the Full Bench decision of this Court disapproved of the view taken in the case of Shanti Prasad v. Akhtar (supra). The later decision of the Supreme Court in the case of Smt. Baikunthi Devi v. Mahendra Nath also dismissed the appeal against the judgment of the Full Bench thereby affirming the view taken by the Full Bench. The position therefore is clear that the contract for sale of land was not capable of being enforced after the coming in force of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act). The position therefore is clear that the contract for sale of land was not capable of being enforced after the coming in force of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act). The Full Bench proceeded on the basis that a contract for sale conferred no interest in the land. Consequently, the ceasing of interest would only arise when the plaintiff had interest in the land, but till the sale deed was executed the plaintiff could not get any right in the land. The Court further held that if it is not possible to specifically enforce the contract, it would be hit by 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. 3. In the Supreme Court decision, Piarey Lal v. Hori Lal, ( AIR 1977 SC 1226 ) (supra) the Court held that the agreement for sale in the instant case did not give rise to any interest "in" the original holding of the defendant as tenure holder. Consequently, there was no occasion for the transfer of any such liability "in" the new land or the Chak of the defendant so as to attract Clause (b) of Section 30 of the Act. Thus, when he lost his original land 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. The Court further observed that it was futile to urge that they were saved by Cl. (a) or Cl. (b) of Section 30 of the Act. It will be noticed that in all these cases except in the case of Smt. Baikunthi Devi v. Mahendra Nath, ( AIR 1977 SC 1514 ) (supra) the contracting parties were tenure-holders who held some Bhumidhari land and contracted to sell it to the other party. That land, during the course of consolidation of holdings proceedings, became merged in some other chaks and the tenure holder was given in lieu of his previous holding some new chak which did not consist of his entire previous holdings. That land, during the course of consolidation of holdings proceedings, became merged in some other chaks and the tenure holder was given in lieu of his previous holding some new chak which did not consist of his entire previous holdings. In other words, in all these cases the tenure holder did not retain the very same plots after the consolidation of holdings proceedings which he had contracted to sell. In such cases, the view of the Supreme Court as taken in the case of Piarey Lal v. Hori Lal (supra) would be applicable. The principle laid down in the above decision is that the rights of the previous tenure holder ceased in the plots which he had contracted to sell. Consequently, it was incapable of being conveyed. The doctrine of frustration would come into play and the contract would not be capable of being specifically enforced. 4. In the case of Smt. Baikunthi Devi v. Mahendra Nath, ( AIR 1977 SC 1514 ) (supra) it was found that the tenure holder retained the same land which was the subject-matter of agreement to sell less a tiny bit of Ac.0.06. The exact words used by their Lordships are as follows : "It so happened that as a result of the consolidation proceedings precisely the same land which was the subject-matter of the agreement to sell, less a tiny bit of Ac.0.06 was included in the chak allotted to Jeewa Ram and the 1st respondent." 5. Their Lordships further observed : "The High Court took the view that since substantially the same land as was the subject-matter of the agreement to sell (plus some other plot with which we are not concerned) has been allotted in the consolidation proceedings to Jeewa Ram there was no difficulty at all in enforcing specifically the agreement which was the basis of the suit. Nor do we see any valid objection to the view on the law and the facts taken by the High Court." An argument was raised that on account of consolidation proceedings even though the same lands may have been allotted in the new chaks there was nevertheless a loss of identity and the emergence of a new character and consequently specific performance could not be granted as a discretionary relief. This plea was rejected and the Court held, "Actually, a tiny bit of Ac. This plea was rejected and the Court held, "Actually, a tiny bit of Ac. 0-06 of land was also due to the first respondent which he gave up. Section 12 (2) of the Specific Relief Act covers such a situation. The result is that the first respondent is entitled to enforce specifically the contract in his favour. The consolidation proceedings having concluded there is no bar to a decree being granted in his favour. In this view, there is no merit in this appeal." It will thus be seen that in Baikunthi Devi's case while affirming the decision of the Full Bench their Lordships held that since the same Land, which was the subject-matter of the agreement to sell minus a small bit, had been allotted to the tenure holder, the contract could be enforced. It is, therefore, clear from the decisions of their Lordships of the Supreme Court in the case of Piarey Lal v. Hori Lal, ( AIR 1977 SC 1226 ) and Smt. Baikunthi Devi v. Mahendra Nath, ( AIR 1977 SC 1514 ) that where precisely the same land, which was the subject-matter of the agreement to sell came to the tenure holder, the contract for sale could be enforced, but where the tenure holder was the recipient of some other land either in its entirety or in part, the contract could not be enforced. If I say so with great respect, the decision in the case of Smt. Baikunthi Devi v. Mahendra Nath relates to an exception to the rule as laid down in the case of Piarey Lal v. Hori Lal (supra). It, will, therefore, be necessary now to examine the facts and see which of these two decisions would be applicable to the facts of the present case. 6. The contract for sale was in respect of three Bhumidhari Plots Nos. 1006, 1112 and 1123 measuring 7 Bighas 2 Biswas. It may be mentioned here that the defendant possessed five other Sirdari plots measuring 5 bighas 14 biswas. During consolidation of holdings proceedings the defendant was allotted chak No. 253 which comprised of 7 plots. In lieu of his Bhumidhari and Sirdari Holdings, only a part of plots Nos. 1006 and 1112 were included in it. There were five other plots which were not included in Chak No. 253. It is, therefore, obvious that the three Bhumidhari Plots Nos. In lieu of his Bhumidhari and Sirdari Holdings, only a part of plots Nos. 1006 and 1112 were included in it. There were five other plots which were not included in Chak No. 253. It is, therefore, obvious that the three Bhumidhari Plots Nos. 1006, 1112 and 1123 were not retained by the defendant after the consolidation proceeding. There was thus a change and new plots had taken the place of the old ones. The lower appellate court has referred to Ex. 8, comparative table C.H. Form No. 41 and Ex. A-8, C.H. Form 23 and thus observed: "From these documents two things are clear. Firstly that the new Bhumidhari chak (Plot No. 639A) allotted to the defendant does not include an inch of those particular plots which were subject-matter of the contract. Secondly that this new plot No. 639A has been allotted exclusively in lieu of the very three plots which were the subject-matter of the contract. In other words this is not a case where this new Bhumidhari chak might have been allotted in lieu of the plots of the agreement amalgamated with other plots of the defendant. In this particular case the entire Bhumidhari holding of the defendant was comprised of only those three plots which were the subject-matter of the contract and the entire new Plot No. 639A has been received by him in lieu of those three plots only." In C.H. Form No. 41, Ext. 8, two particulars are mentioned. In column No. 1 the number of new plot is 639A with an area 5 Bigha 3 biswas 10 Biswansis comprising of the old Plots Nos. 1202, 1203 and 1204 M. It is apparent from this form that the new Plot No. 639A does not refer to the old plots Nos. 1006, 1112 and 1123. Consequently, the argument that the new settlement Plot No. 639A represents the old Bhumidhari plots is incorrect. Sirdari Plots Nos. 1202, 1203 and 1204 M also were owned by the defendant prior to the consolidation operation. These very plots constituted Plot No. 639A (new) as shown in C.H. Form No. 41. It has to be borne in mind that the plots for which the contract for sale was entered into comprised of the three Bhumidhari Plots Nos. 1006, 1112 and 1123. C.H. Form No. 41 clearly described that these plots did not form Plot No. 639A. These very plots constituted Plot No. 639A (new) as shown in C.H. Form No. 41. It has to be borne in mind that the plots for which the contract for sale was entered into comprised of the three Bhumidhari Plots Nos. 1006, 1112 and 1123. C.H. Form No. 41 clearly described that these plots did not form Plot No. 639A. Consequently, the observation made by the court below that the entire Bhumidhari holding of the defendant comprised of only those three plots and the new Plot No. 639A has been received by him in lieu of those plots only is incorrect. As a matter of fact, C.H. Form No. 41 shows that the other new Plot No. 253 contains a part of old Plot Nos. 1006 and 1112 but also comprised of several other plots which were not owned by the defendant earlier. It is evident from the above that the plots that were received by the defendant during the course of the consolidation proceedings were not the plots which he had contracted to sell nor the Plot No. 639A was constituted in lieu of the plots received in exchange of the three earlier Bhumidhari plots held by the defendant. In other words, there was a complete change of identity. In this view of the matter, the principle of law laid down by their Lordships of the Supreme Court in the case of Piarey Lal v. Hori Lal ( AIR 1977 SC 1226 ) (supra), is applicable and has to be applied. The exception which was noticed in the case of Smt. Baikunthi Devi v. Mahendra Nath ( AIR 1977 SC 1514 ) (supra), is not applicable to the facts of the present case. 7. The view taken by the court below was principally based on the decision of Shanti Prasad v. Akhtar (1972 All LJ 549) (supra) which had been expressly overruled both by a Full Bench of this Court as well as by their Lordships of the Supreme Court in the case of Piarey Lal v. Hori Lal (supra). The decision of the court below therefore cannot be sustained, and the judgment and decree passed by the court below must be set aside. The suit of the plaintiff must be dismissed. 8. In the result, therefore, the appeal succeeds and is allowed. The decision of the court below therefore cannot be sustained, and the judgment and decree passed by the court below must be set aside. The suit of the plaintiff must be dismissed. 8. In the result, therefore, the appeal succeeds and is allowed. The judgment and decree of the court below are set aside and the plaintiff's suit is dismissed. However, in the circumstances of the case, there will be no order as to costs.