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PETITIONER: JAGDISH CHANDER (DEAD) BY L. RS.

       Vs.

RESPONDENT: BRIJ MOHAN & ORS.

DATE OF JUDGMENT06/02/1978

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SHINGAL, P.N.

CITATION:  1978 AIR 1318            1978 SCR  (2) 805  1978 SCC  (2) 361

ACT: Transfer  of Prosperty Act, (Act 4 of 1882) ss. 6, 1955  (2) read with ss. 15 and 17 of the Specific Relief Act--Contract of agreement to repurchase the lands, assignability--Whether specific performance can lie. U.P.  Zamindari  Abolition and Land Reforms,  Act  1950,  s. 154--Restrictions on the transfer by a Bhumidari--Powers  of the  Court to exercise its discretion in passing the  decree for specific performance.

HEADNOTE: One  Ata-Ilahi  Khan executed a sale deed in favour  of  the appellant, Shri Jagdish Chander on 12-7-1968 and the  latter took  possession of the suit lands.  On the same day  by  an agreement, Jagdish Chander agreed to reconvey the suit lands specifically  to Ata-Ilahi Khan or his heirs, if the  amount of  consideration was repaid to him within a period of  five years.  On 18-12-1959, Ata-Ilahi Khan transferred his  right to  repurchase  through  a sale deed in favour  of  one  Bir Narain and others.  Thereafter, Ata-Ilahi again  transferred his ’right to repurchase through another sale deed dated 21- 7-1962  in favour of the plaintiffs-respondents.   The  suit for  specific  performance filed by the respondents  on  the basis  of  the sale deed dated 21-7-1962  failed.   But  the first  appellate  Court reversed the judgment of  the  trial Court  and  decreed the suit.  The High Court  affirmed  the said appellate judgment. Dismissing the appeal by special  leave, the Court. HELD  :  I. Supreme Court cannot go behind the  findings  of fact in appeal by special leave under Art. 136. [807 D-E] In the instant case, the right to repurchase did not vest in Bir Narain and others as per the sale deed dated  18-12-1958 in their favour but with the plaintiffs. [807 E] 2.  Before s. 154 of the U.P. Zamindari Abolition  and  Land Reforms Act 1950 can apply, it must be found as a fact  that the  person  to whom the property is transferred  must  have held an aggregate of 121/2 acres or 30 acres as the case may be at the relevant period. [807 G-H] In  the  instant  case the plaintiffs  did  not  have  lands exceeding  121/2 acres so as to fall within the mischief  of s. 154 of the Act. [807 H, 808 A-B] [The  Court  applied "non-liquet" as to whether  the  Courts

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below  should have exercised their discretion to  passing  a decree for specific performance]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1946  of 1970. Appeal  by Special Leave from the Judgment and  Order  dated 15-5-1969  of the Allahabad High Court in Second Appeal  No. 2653 of 1967. S. C. Manchanda and S. T. Aneja for the Appellants. M. S. Gupta for Respondents Nos.  1 and 2. I. S. Sawhney for Respondent No. 3. The Judgment of the Court was delivered by 13-119 SCI/78 806 FAZAL ALI, J. This is a defendant’s appeal by special  leave and is directed against the judgment dated 15th May, 1969 of the Allahabad High Court upholding the decree, passed by the District  Judge  in  favour Of the  plaintiff  for  specific performance of a contract of sale :  The facts of the case lie within a very narrow compass  and may be briefly slated thus. The defendant Jagdish Chander purchased the lands in dispute for a consideration of Rs. 6000/- by a sale deed dated  12th July, 1958 including the Bhumidhari land from Ata Ilahi Khan who was the proprietor of the said lands.  The sale deed  in favour   of  the  defendant  Jagdish  Chander  contained   a stipulation that the vendor would be entitled to  repurchase the  property  for the consideration mentioned in  the  sale deed within five years from the date of the execution of the sale  deed.  On 18th December, 1958 Ata Ilahi Khan sold  his right  of repurchase of the land under the sale  deed  above mentioned  to  Bir Narain, Mangal Singh and  Mukanda  Singh. Thereafter,  a few years later on 21st May, 1962  Ata  Ilahi Khan  again sold his right of repurchase in respect  of  the aforesaid  property  to  Brij Mohan  and  Chandrapal  Singh, plaintiffs  No.  1  & 2. It would thus be  seen  that  while selling  the property to the defendant Jagdish  Chander  Ata Ilahi  Khan had clearly incorporated an agreement to  resell the  land within five years on payment of the  consideration of the sale deed itself.  Armed with the sale deed  executed by  Ata  Ilahi  Khan  in  favour  of  the  plaintiffs,   the respondents filed the present suit for specific  performance of the contract of sale contained in the sale deed  executed by  Ata  Ilahi  Khan  in favour  of  the  defendant  Jagdish Chander.  The plaintiffs sought to enforce that part of the, contract  which  contained  the  right  of  the  vendor   to repurchase  the  property from Jagdish Chander  within  five years. The  suit- was tried by the Second Additional  Civil  Judge, Muzaffarnagar  who  dismissed  the  suit  holding  that  the plaintiff’s  sale  deed was not  legally  enforceable.   The plaintiffs  then  filed  ail  appeal to  the  Court  of  the District  Judge.  Muzaffarnagar against the judgment of  the Additional  Civil Judge.  The District Judge disagreed  with the   view  taken  by  the  trial  Court  and  decreed   the plaintiffs’  suit holding that the agreement relied upon  by the  plaintiffs was capable of being enforced The  defendant Jagdish  Chander unsuccessfully preferred an appeal  to  the High  Court  which  was  dismissed and  the  decree  of  the District  Judge was upheld by the High  Court.   Thereafter, the plaintiffs came upto this Court and after being  granted special  leave the present appeal has been placed before  us

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for hearing. Mr. Manchanda, learned counsel, appearing for the  appellant submitted  two  points before us.  In the  first  place,  he urged  that  in view of. a prior sale deed executed  by  Ata Ilahi  Khan  in favour of Bir Narain and others  dated  18th December, 1958, the vendor had no right to execute a sale of the right of repurchase on 21st July, 1962 in favour of  the plaintiffs, because the vendor had parted with his title  in favour  of  Bir Narain and if be had sold  anything  to  the plaintiffs  it  was merely a bag of wind.  So  far  as  this point is concerned, the District Judge reversed the  finding arrived at by the trial Court and came to a finding 807 of  fact  that the sale deed in favour of Bir Narain  was  a sham  transaction and did not pass any title to the  vendees Bir Narain and others.  The District Judge further held that Bir  Narain  himself appeared as a witness in the  suit  and clearly  deposed that he had surrendered his  interest,  and had no title at all.  In this connection, the District Judge observed as follows               "When once, it has been found that Bir  Narain               and others had no valid transfer made in their               favour  because  of  the want of  a  title  to               convey in their vandor, it is too much to  say               that  they  would be possessing the  right  to               take  back  the  land in  the  consequence  of               repurchase............   Further,  the   three               vendees, Bir Narain, Mukanda Singh and  Mangal               Singh,  were  the attesting witnesses  of  the               sale  deed  which  specifically  stated   that               whatever rights they possessed under the  sale               deed  dated  20th  December,  1959  had   been               relinquished or surrendered.......... then Bir               Narain   (P.W.  5)  has  declared   on   sworn               testimony  that he and the other  vendees  had               acquired any right under the gale deed Ex.A-20               it  is  difficult to accept  the  respondent’s               contention that the right to repurchase vested               in  Bir Narain and others.  In that  view  the               finding of the learned Additional  Civil-Judge               is in correct". This finding of fact has been affirmed by the High Court and it  is  not possible for us to go behind these  findings  of fact  in this appeal by special leave.  For  these  reasons, therefore,  the  first  contention  raised  by  the  learned counsel for the appellant must be overruled. Another  point of law which has been argued by  counsel  for the  appellant was that as Ata Ilahi Khan or the  plaintiffs were  possessed  of the Bhumidhari land which  exceeded  the limit  of  12-21/2  acres, the sale was  invalid  under  the provisions  of section 154 of the U.P.  Zamindari  Abolition and  Land Reforms Act, 1950 (hereinafter referred to as  the Act).   Section  154  of  the  Act  as  it  stood  when  the transaction was entered ran thus               "154.   Restrictions  on  the  transfer  by  a               bhumidhar (1) Save as provided in sub-sections               (2) and (3). no bhumidhar shall have rights to               transfer by sale or gift, any land other  than               tea  gardens  to  any  person  other  than  an               institution   established  for  a   charitable               purpose, where such person shall, as a  result               of  the sale or gift, become entitled to  land               which  together  with land, if  any,  held  by               himself  or together with his family, will  in               the  aggregate,  exceed 121/2 acres  in  Uttar

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             Pradesh". It is manifest that before the section can apply it must  be found  as  a fact that the person to whom  the  property  is transferred must have held an aggregate of 121 acres of land in  U.  P. which was increased to 30 acres at  the  relevant period.   In  the  instant  case,  the  District  Judge  has returned another finding of fact that the defendant was  not able to show by producing the khatauni or any other document that the plaintiffs No. 1 and 2 who were the transferees had land 808 exceeding 121 acres.  In this connection, the District Judge found as follows               "On the point of fact as well, the plea is not               supported by evidence.  The defendant did  not               produce   the  Khatauni  to  prove  that   the               plaintiffs No. 1 and 2 would, in the result of               the   sale  deed  become  entitled   to   land               exceeding 121/2 acres". Thus, on the finding of fact recorded by the District  Judge and  as affirmed by the High Court, it was established  that the  transferees, namely, the plaintiffs did not have  lands exceeding 121/2 acres so as to ,fall within the mischief  of section  154  of the Act.  In this view of  the  matter  the second  contention raised by counsel for the appellant  also fails and it is not necessary for us to examine further  the consequences  of violation of the provisions of section  154 of  the  Act.  Mr. Manchanda submitted that in view  of  the statutory  prohibition contained in section 154 of the  Act, the  court would not exercise its discretion  for  enforcing the contract which is prohibited by law.  In view,  however, of  the  finding of fact referred to above  that  the  total bhumidhari  land possessed by the plaintiffs did not  exceed 121/2  acres, or 30 acres, as the case may be, the  question of  application  of section 154 of the Act does  not  arise, and, therefore, it is not necessary for us at all to go into the  question  as  whether  or not  the  court  should  have exercised  its discretion in passing a decree  for  specific performance. The  result is that the contentions raised by Mr.  Manchanda fail and the appeal is dismissed,, but in the  circumstances without any order as to costs. S.R.                            Appeal dismissed. 809