Ram Autar Agarwal v. Mahendra Singh — 1989 DIGILAW 119 (ALL)

JUDGMENT A.N. Dikshita, J. - The plaintiff appellant has preferred this appeal against the judgment dated 8-1-1979 and the decree dated 23-1-1979 passed by Sri D. N. Sharma, 3rd Additional District Judge, Bulandshahar, in Civil Appeal No. 27 of 1978 arising out of Original Suit No. 242 of 1975 (Ram Autar v. Chhunni Lal and another). 2. The facts in brief are that the plaintiff-appellant filed Suit No. 242 of 1975 against the defendants on the allegations that on 19-5-1972 Chhunni Lal, defendant, had agreed to sell land in plot No. 475 admeasuring 15 biswas 18 biswansis situate at Qasba Aurangabad for a sum of Rs. 4000/- to the plaintiff; that the amount of Rs. 3000/- was paid in advance and the balance of Rs. 1000/ was to be paid before the Sub-Registrar, Bulandshahar, at the time of the execution of the sale deed, that it was agreed that within 3 ,years. that is. up to 1975 the defendant would deposit the 20 times rent and would acquire bhuniidhari rights in the land and thereafter would get the sale deed executed in favour of the plaintiff and the balance amount would be received by him at that time. It is the plaint case that all through the plaintiff was willing to perform his part of the contract but the defendant neither deposited the 20 times rent to acquire Bhumidhari rights nor got the sale deed registered. A notice dated 25-4-1917 was sent to Chunni Lal, defendant, which was duly received and replied to. Anyhow no sale deed was executed. As the defendant failed to execute the sale deed the plaintiff filed the suit. The relief claimed in the suit was that the defendant be directed to deposit the 20 times rent and acquire the Bhumidhari rights and thereafter execute the sale deed in favour of the plaintiff. In the alternative it was claimed that if it was not possible to get the sale deed executed the amount of Rs. 4000/- be refunded hack to the plaintiff-appellant. 3. The defendant Chhunni Lal filed a written statement. Cn 2-1-1977 Chhunni Lal, defendant, expired during the penency of the suit and his heirs were brought on record but they did not contest the suit. The suit was decreed ex parte for Rs. 4000/- to be paid to the plaintiff. No other relief was granted by the trial Court. 4. 3. The defendant Chhunni Lal filed a written statement. Cn 2-1-1977 Chhunni Lal, defendant, expired during the penency of the suit and his heirs were brought on record but they did not contest the suit. The suit was decreed ex parte for Rs. 4000/- to be paid to the plaintiff. No other relief was granted by the trial Court. 4. Aggrieved the plaintiff preferred Civil Appeal No. 27 of 1978 to the Court of District Judge, Bulandshahar. By the judgment and order dated 8-1-1979 the appeal was dismissed by the 3rd Addl. District Judge, Bulandshahr. Hence this second appeal. 5. This appeal has been admitted by this Court on the following substantial question of law "Whether the agreement to sell can be imposed as against the heirs of the deceased defendant?" 6. Heard counsel for the parties. 7. Sri S.N. Agarwal, learned counsel for the appellant has vehemently urged that the instant contract was binding on the heirs of Chhunni Lal. It is not disputed by the learned counsel for the appellant that at the time of the execution of the agreement on 19-5-1972 Chhuni Lal was only a Sirdar of the land in question. This fact is further borne out from the agreement Ex. I where it is stated that Chhunni Lal had received Rs. 3000/- earlier and the balance amount of Rs. 1000/- was to be paid at the time of execution of the sale deed before the Sub-Registrar and that the defendant would deposit 20 times rent within 3 years and would acquire Bhumidhari Sanad and then would execute the sale deed. As stated above Chhunni Lal did not abide by the terms of the agreement thus compelling the plaintiff to file the suit. To buttress his contention learned counsel for the appellant placed reliance on Moti Ram v. Khyali Rani, 1967 All LJ 88 : AIR 1967 All 484 . In this case it has been held that an agreement by a Sirdar undertaking to acquire Bhumidhari rights and then transfer them is not hit by S. 153 of U.P.Z.A. and L.R. Act because it is not an agreement transferring Sirdari rights but one to transfer Bhumidhari rights to he acquired in future. 8. In this connection reference may be made to Ramdeo v. Dy. Director of Consolidation, AIR 1968 All 262 . 8. In this connection reference may be made to Ramdeo v. Dy. Director of Consolidation, AIR 1968 All 262 . In this case the plots in dispute constituted Sirdari holding of one Sahdeo and his brother. Sahdeo deposited ten times of the rent on 6-11-1962 and made an application for the grant of a Bhumidhari Sanad. The same, day Sahdeo executed a deed of sale of a share in the holding in dispute in favour of the respondents. The sale deed was registered the next day, that is, on 7-11-1962. Sahdeo, however, died in the night intervening 23rd and 24th November, 1962. In due course the Bhumidhari Sanad was issued in the name of Ram Deo, the son of Sahdeo, on 29th March, 1965. On the commencement of proceedings under the U.P. Consolidation of Holdings Act an objection was filed by the respondents that they were entitled to the plots in dispute on the basis of the sale deed by the former tenant Sahdeo in their favour. Rain Deo. the son of Sahdeo, and the brother of Sahdeo contested the claim of the respondents. The claim of the respondents was repelled by the Consolidation Cfficer holding that the Sanad was issued in the name of Ram Deo and as such Sahdeo never became the Bhumidhar. Sahdeo continued as Sirdar till his death. As a Sirdar Sahdeo could not transfer his interest in the holding. These findings were confirmed by the Settlement C'fficer. The Deputy Director of Consolidation, 'however, took a different view and held that on the grant of the Sanad Sahdeo would be deemed to hate become a Bhumidhar with effecti frori the' date of the deposit of the rent, that is, 6-11-1962 and was competent to transfer his interest in the holding. The death of Sahdeo made no difference to the acquisition of Bhumidhari rights in his favour. This view of the Deputy Director of Consolidation was challenged before this Court. This Court held that Sahdeo did not become a Bhumidhar and hence did not obtain a transferable interest in the holding. The sale deed executed by him on 7-11-1962 could not validly vest. any title in the transferee and the respondents were not entitled to be recorded simply on the basis of the sale deed executed by Sahdeo. 9. The relevant provisions of Sections 134 and 137 of U.P.Z.A. and L.R. Act may now be examined. The sale deed executed by him on 7-11-1962 could not validly vest. any title in the transferee and the respondents were not entitled to be recorded simply on the basis of the sale deed executed by Sahdeo. 9. The relevant provisions of Sections 134 and 137 of U.P.Z.A. and L.R. Act may now be examined. S 134 of the Act requires a Sirdar to deposit 10 times of the land revenue and then to make an application for a declaration that he has acquired the rights:mentioned in S. 137 of the Act, S. 137(1) provides that on such an application having been made, on the satisfaction of the Assistant Collector that the applicant is entitled to the declaration as enjoined under S. 134 he shall grant a certificate to that effect. Sub-sec. (2) of S. 137 of the Act reads as under : "(2). Upon the grant of the certificate, under sub-section (1) the Sirdar shall from the date thereof : (a) become and he deemed to be a Bhumidhar of the holding or the share in respect of which the certificate has been granted; (b) be liable for payment of such reduced amount on account of land revenue for holding or his share therein as the case may be, as shall be one half of the land revenue payable or deemed to be payable by him therefor on the date of application; The proviso and the Explanation are not material Subsection (2A) of Section 137 says : "Where a certificate is granted on a date other than first day of the agricultural year, the land revenue payable by him under clause (b) of sub-section (2) for the remainder of the agricultural year in which it is granted shall be determined in such manner as may be prescribed." It is thus clear that the above provisions lay down the procedure for the grant of certificate relating to the acquisition of Bhumidhari rights. It is only after such a certificate has been granted under S. 137(2) that a Sirdar becomes and is deemed to be a Bhumidhar from the date of the certificate. S. 134 only provides for the entitlement to such a certificate and it is only when such a certificate has been granted that a Sirdar acquires the rights of Bhumidhar. It is only after such a certificate has been granted under S. 137(2) that a Sirdar becomes and is deemed to be a Bhumidhar from the date of the certificate. S. 134 only provides for the entitlement to such a certificate and it is only when such a certificate has been granted that a Sirdar acquires the rights of Bhumidhar. On depositing the amount and making the application for acquisition of Bhumidhari rights the prescribed procedure has to be gone through by the Sirdar. The Act does not provide for the grant of a certificate in favour of a dead person. S. 137 only provides that on the satisfaction of the Assistant Collector he shall grant the declaration. The satisfaction of the Assistant Collector to such entitlement has to be in praesenti. A Sirdar has to be present when such a certificate is being granted as it could not be granted in favour of a dead person. It was thus held in Ramdeo v. Dy. Director of Consolidation, AIR 1968 All 262 (supra), with which I respectfully agree, that since Sahdeo did not receive the certificate he did not acquire Bhumidhari rights or interest in the holding at all. The certificate so granted operates retrospectively but this retrospective operation commences after the event of the grant of certificate has happened. 10. In the present appeal Chhunni Lal had not even deposited 20 times of the land revenue nor had made an application for declaration. 11. In view of the above, this appeal has no merits and deserves to be dismissed. 12. In the result the appeal fails and is hereby dismissed. No order as to costs.