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CASE NO.: Appeal (civil)  814 of 2005

PETITIONER: Rozan Mian

RESPONDENT: Tahera Begum & Ors

DATE OF JUDGMENT: 14/08/2007

BENCH: H.K. SEMA & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 814 OF 2005

H.K.SEMA,J

(1)             This appeal preferred by the plaintiff is directed  against the judgment and order dated 13.11.2003 passed by  the High Court in F.A.No.103 of 1988, dismissing the suit of  the plaintiff, by reversing the decree granted by the Trial  Court.  (2)             Briefly stated the facts are as follows:-                 An agreement was entered into between the plaintiff  and the defendant on 3.12.1973 for sale and purchase of  Thika Tenancy.  The agreement having not been carried out,  the plaintiff filed a suit on 7.2.1974 for specific performance of  agreement for sale.  The Trial Court decreed the suit on  24.4.1990.  However, the High Court upset the decree and  hence the present appeal. The undisputed fact is that the  aforesaid agreement was entered into between the parties  while the Calcutta Thika Tenancy Act, 1949 was in vogue.  The  agreement was to sell structure without the land.  There was  no bar in transferring structure without the land under 1949  Act and a person purchasing the structure would have become  a Thika Tenant.  However, during the pendency of the suit,  West Bengal Act 37 of 1981, The Calcutta Thika Tenancy  (Acquisition and Regulation) Act, 1981 (hereinafter the 1981  Act) was promulgated. (3)             Section 5 of the Act provides that with effect from  the date of commencement of this Act, lands along with the  interest of the landlords therein shall vest in the State, free  from all encumbrances.    (4)             Sub-Section (3) of Section 6 prohibits the transfer of  the interests of thika tenants and tenants of other lands  holding directly under the State except the transfer amongst  the heirs and existing co-sharers-interest or to the prospective  heirs, subject to the provisions of sub-section (1) of Section 7. (5)             By reason of sub-section (2) of Section 7 any  transfer or agreement for transfer, whether oral or in writing in  contravention of the provisions of sub-section (3) of Section 6  or sub-section (1) of Section 7 shall be void and be of no effect  whatsoever and the land and structure shall stand vested in  the State in accordance with the prescribed procedure.  (6)             Section 4 of the Act has an overriding provision.  It  reads:- "4. Act to override other laws.-  The provisions of this Act shall have  effect notwithstanding anything  inconsistent therewith in any other

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law for the time being in force or in  any custom, usage or agreement or  in any decree or order of a court,  tribunal or other authority."                  

(7)             In the background of the position of law, the  question to be determined in this appeal is as to whether the  specific performance of the agreement for sale becomes  impossible of performance by reason of promulgation of the  West Bengal Thika Tenancy (Acquisition and Regulation) Act  1981, during the pendency of the suit.  As already noticed, the  plaintiff’s suit was filed on 7.2.1974 for specific performance of  agreement for sale-dated 3.12.1973.  The suit was decreed on  24.4.1990.  During the pendency of the suit, 1981 regulation  was promulgated.  By virtue of Section 5, all lands and  interests of the landlords vested with the Government.  By  virtue of sub-section (3) of Section 6 of the Act, transfer of  thika tenancy is prohibited.  By virtue of sub-section (2) of  Section 7, any transfer in contravention of sub-section (3) of  Section 6 is void.  Section 4 provides overriding effect on all  laws including the agreement or any decree or order of a court,  tribunal or other authority. (8)             It is noticed that the 1981 Act has brought about  drastic changes in the concept of Thika tenancy.  The superior  interest of the landlord holding under the State stands vested  in the State by operation of law.  The land having been vested  in the State and the Thika Tenant occupying the land under  the landlord became a Thika Tenant holding the Thika  Tenancy directly under the State.      (9)             Section 56 of the Indian Contract Act, 1872 (in  short "the Act") provides that an agreement to do an act  impossible in itself is void.  A contract to do an act which, after  the contract is made, becomes impossible, or, by reason of  some event which the promisor could not prevent, unlawful,  becomes void when the act becomes impossible or unlawful.    In the present case, by virtue of 1981 Act, the land under the  landlord has been vested in the State and the Thika Tenant  under the landlord becomes the Thika Tenant under the State.  (10)            Mr. S.B. Sanyal, learned senior counsel appearing  for the appellant, contended that the right accrued by an  agreement dated 3.12.1973 under the 1949 Act still subsists  and could not have been taken away by 1981 Act, as the  application of the Act itself was not made retrospectively.  This  contention, in our view, is thoroughly misplaced.  We have  already pointed out various Sections of the Act, by which the  agreement dated 3.12.1973 itself becomes void.  No such right  as contended by learned counsel for the appellant was accrued  under the 1949 Act, as the suit for specific performance of  agreement for sale was decreed only on 24.4.1990, by the Trial  Court, after the agreement itself became void, by virtue of  1981 Act.    In support of his contention Mr. Sanyal referred to  various decisions of this Court; K.S Paripoornan   vs.  State  of Kerala, (1994) 5 SCC 593, R. Rajagopal Reddy   vs.   Padmini Chandrasekharan, (1995) 2 SCC 630,  Shyam  Sunder   vs. Ram Kumar, (2001) 8 SCC 24, Narayan  Chandra Ghosh  vs.  Kanailal  Ghosh, (2006) 1 SCC 175.   The aforesaid decisions are not at all relevant for the purpose  of disposal of the present appeal. (11)            The High Court was of the view that after the  promulgation of 1981 Act by reason of operation of law, the  contract has become void, the plaintiff is entitled only to the  refund of the consideration together with interest and cost of  the suit at the rate assessed by the High Court.  (12)            We see no reason to interfere with the views of the  High Court.  This appeal being devoid of merits is, accordingly,

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dismissed with no order as to costs.