Bachchoo v. Board of Revenue — 1985 DIGILAW 334 (ALL)

ORDER B.L. Yadav, J. - The petitioner has filed the present writ petition under Article 226 of the Constitution for quashing the judgment and order dated 25th January. 1985 passed by the Board of Revenue, order dated 3-5-76 passed by the Commissioner and the order dated 18-4-74 passed by the trial court in a suit filed by the petitioner under S. 229-B of the U.P. Zamindari Abolition and Land Reforms Act, (hereinafter referred to as the Act). for declaration of bhumidhari rights. 2. The suit was filed on the ground that the petitioner is bhumidhar of the plots in dispute. On the basis of it compromise dated 22- 2-59 entered into between the parties the petitioner was given the plots in dispute. The suit was contested by the contesting respondents denying the claim of the petitioner and alleging that no such compromise was entered into, or in any case. they are not aware of the compromise. The trial court partly decreed the suit in respect of plots Nos. 1447 and 2310 and in respect of other plots the suit was dismissed. The petitioner preferred an appeal before the Commissioner, but the same was also dismissed and similarly the second appeal also failed. It is against these judgments that the present petition has been filed. 3. Sri R. S. Dubey, learned counsel for the petitioner urged that the compromise (dt. 22-2-59 was a concluded contract and that it was not an inchoate contract and in that compromise it was provided that in respect of those two plots mentioned earlier the petitioner would be recorded as bhumidhar and in respect of the remaining plots in dispute another suit was pending. In that suit 24/25th Feb., 1959 was the date fixed. It was stated that on that date the compromise would be filed. But no such compromise was filed in that suit on that date by the contesting respondents. The learned counsel placed reliance on K.S. Lakshmi Narayana Setty, N. Kamakshiah Setty v. State of Mysore, AIR 1967 Mys 156 and Amrit Lal Magan Lal v. Harkisan Das Kahan Das, AIR 1940 Bom 149, Ram Baran Prasad v. Ram Mohit Hazra, AIR 1967 SC 744 . 4. M/s. K.S. Lakshmi Narayana Setty N. Kamakshiah Setty v. State of Mysore (supra) was it case where tenders were invited by the Government in respect of inferior cocoons. This case is clearly distinguishable. 5. 4. M/s. K.S. Lakshmi Narayana Setty N. Kamakshiah Setty v. State of Mysore (supra) was it case where tenders were invited by the Government in respect of inferior cocoons. This case is clearly distinguishable. 5. Amrit Lal Magan Lal v. Harkisan Das Kahandassupra was a case where a contract was entered into between the parties and some of the terms were not complied with by the defendants. Thereafter a suit was filed for specific performance of the contact and in that case the question was as to what part of the contract can be enforced and what part cannot be enforced. In the instant case a suit under S. 229-B of the Act was filed for declaration. The proper remedy to be pursued by the petitioners was to file a suit for specific performance of contract. The facts of the present case are entirely different from that case. I am of the view that an agreement which was not a concluded contract and does not contain clear terms, cannot be enforced in a suit under S. 229-B of the Act and particularly when the terms of that agreement were denied by the other side. 6. In Ram Baran Prasad v. Ram Mohit Hazra, AIR 1967 SC 744 (supra). the question was whether the terms of the contract can be enforced and it was held that the terms of contract can be enforced provided the terms are clear and it was a concluded contract. 7. The petitioners must have filed a suit for enforcement of the terms of the contract. But instead of doing so they filed a suit for declaration of bhumidhari rights. In Ram Baran Prasad's case (supra) the terms of the contract were sought to be enforced and in that connection it was held that the terms of the contract can be enforced provided the contract was complete. But here a declaration has been sought. The scope of suit for declaration or the relief sought therein is entirely different from the scope of a suit for specific performance of the contract. In case the petitioners wanted any correct and substantial relief they should have filed a suit for specific performance of the contract. The facts of Ram Baran Prasad's case are of no assistance to the petitioners. 8. In case the petitioners wanted any correct and substantial relief they should have filed a suit for specific performance of the contract. The facts of Ram Baran Prasad's case are of no assistance to the petitioners. 8. I am of the opinion that the right to sue for specific performance of contract is entirely different from a suit arising out of a different cause of action. Here the petitioners sought relief for declaration of bhumidhari rights. The declaratory decree can be granted under S. 34 of the Specific Relief Act, 1963. Under that Section any person entitled to any legal character or to any right in the property may institute a suit against any person denying or interested to deny his title to such character or right and the Court may in its discretion make therein a declaration that he is entitled to that relief. 9. I am of the view that no suit for declaration is maintainable under the Specific Relief Act, unless the plaintiff is a person entitled to some legal character or to some right in the property and the declaration sought is that he is entitled to such character or to such right. As the compromise was not filed in the subsequent suit it cannot be assumed that the plaintiff was a person entitled to any legal character or to some right in the property. In case the petitioners wanted the real substantial relief they should have filed a suit for specific performance of the contract in view of the provisions of S. 10 of the Specific Relief Act, 1963. In the suit for specific performance of the contract the terms of the contract could have been specifically enforced if they were actually capable of being enforced. But the terms of the contract or compromise which were not even clear cannot be enforced in a suit for declaration. (See Sheoparsan Singh v. Ram Nandan Singh. 43 IA 91 : AIR 1916 PC 78 ). In view of the aforesaid facts I am of the opinion that the plaintiff-petitioners did not pursue the proper remedy available to them. 10. It is noticeable that there is difference in the provisions of a suit for declaration to be filed by the Gaon Sabha under S. 229 of the Act and a suit for declaration to be filed by any other person (other than the Gaon Sabha). 10. It is noticeable that there is difference in the provisions of a suit for declaration to be filed by the Gaon Sabha under S. 229 of the Act and a suit for declaration to be filed by any other person (other than the Gaon Sabha). Under S. 229 of the Act a declaratory suit can be filed by the Gaon Sabha against any person claiming to be entitled to any right in the land for declaration of such right in respect of such land and the Court in its discretion may make a declaration of the right of such person notwithstanding anything to the contrary in S. 42 of the Specific Relief Act, 1870 (i.e. S. 34 of the Specific Relief Act, 1963). Whereas a (sic) suit under S. 229-B of the Act the clause "notwithstanding anything to the contrary in S. 42 of the Specific Relief Act of 1870" has been omitted by the Legislature. 11. The intention of the Legislature appears to be that in the suit under S. 229-B of the Act filed for declaration of the bhumidhari and sirdari rights by a tenure holder a relief can be granted only if it is consistent with the provisions of S. 34 of the Specific Relief Act, 1963. In other words, independently of S. 34 the relief cannot be granted in a suit for declaration under S. 229-B of the Act. It may again be reiterated that under S. 34 of the Specific Relief Act, 1963 the relief can be granted to a person only when he was entitled to a legal character or any right in the property. As the terms of the compromise or contract were not clear and even the compromise was not filed in the subsequent case in which the date was fixed few days later, it cannot be said that the petitioner got any right or that he could mature any right in respect of the land in suit. I am of the opinion that under these circumstances the suit was correctly not decreed. The findings of the courts below in this regard are perfectly correct. The petitioner cannot get any relief from this Court in such a situation in the petition under Article 226 of the Constitution. 12. I am of the view that there is another difficulty in the way of the petitioner from getting relief. The findings of the courts below in this regard are perfectly correct. The petitioner cannot get any relief from this Court in such a situation in the petition under Article 226 of the Constitution. 12. I am of the view that there is another difficulty in the way of the petitioner from getting relief. It is well known that under Article 226 of the Constitution the petitioner must have a fundamental right as conferred by Part III of the Constitution or a legal right before he could enforce the same. In other words existence of it legal right is the foundation for the exercise of jurisdiction by this Court. Unless right is established no writ can be issued by this Court. As the subsequent suit was pending in which the compromise was to be filed and the same could not be filed, hence it cannot be assumed that the petitioners have matured full-fledged right, rather it was an inchoate contract and hence it cannot be said that the petitioner has any legal right nor he was entitled for the declaration of his title. (See State of Orissa v. Ram Chandra Dev, AIR 1964 SC 685 at p. 688. Para 8 ) 13. There is another limitation on the right claimed by a particular petitioner. The rights so claimed must not be a contractual right arising out of a private contract rather it should be a right emanating from a statutory provision. However, even if a contract was still an inchoate contract the relief cannot be granted. (See Kulchhinder Singh v. Hardayal Singh Brar, AIR 1976 SC 2216 and State of Punjab v. Balbir Singh, AIR 1977 SC 1717 , Para 3). In the instant case the alleged agreement between the petitioner and the contesting respondents was just a contractual obligation in the ordinary course having nothing to do with the statute nor the said contract arose out of some statutory provision and further even the contract cannot be said to be a concluded contract. See Har Shankar v. Dy. Excise & Taxation Commissioner, All, 1975 SC 1121, at p. 1124 Para 311. 14. In view of the discussions made hereinbefore the petitioners are not entitled to any relief from this Court and the writ petition is accordingly dismissed summarily.