Ram Pratap And Others vs Gulab
2013 Latest Caselaw 4518 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?RESERVED/A.F.R.
 
Court No. - 14
 
Case :- SECOND APPEAL No. - 352 of 1993
 
Appellant :- Ram Pratap And Others
 
Respondent :- Gulab
 
Counsel for Appellant :- S.K.Srivastava,A.D.R.Srivastava,Dr. L.P. Misra
 
Counsel for Respondent :- Nazim Ali Siddiqui
 

 
Hon'ble Saeed-Uz-Zaman Siddiqi,J.

The instant second appeal has been preferred against the judgment and decree dated 01.10.1993, passed by learned First Additional Civil Judge, Bahraich, in Civil Appeal No.2 of 1991, by which the Regular Civil Appeal was allowed and the judgment and decree dated 18.11.1989, passed by learned Vth Additional Munsif, Bahraich, in Original Suit No.135 of 1985 has been set aside.

Brief facts of the case are that the appellants filed suit for specific performance of contract relating to plot no.177/178 situated in Village Majhaw, Pargana Dharamapur, Tehsil Nanpara, District Bahraich, of which the defendant was bhumidhar. The said land was purchased by the defendant in auction from Cooperative Department vide sale deed dated 26.3.1982. At the time of purchase the defendant has obtained Rs.1500/- from the plaintiffs on the condition that he shall execute the sale deed of one acre of land so purchased in favour of the plaintiffs and registered agreement dated 26.3.1982 was executed between the parties. In furtherance of the execution of sale deed the defendant has delivered possession over one acre of land to the plaintiff and, as such, the defendant is bound to execute the sale-deed for which the plaintiffs have already been ready and are ready to perform their part of contract. Since the defendant did not execute the sale-deed. Hence, the suit was filed. The defendant has admitted that he has purchased the disputed property in public auction in the year 1981 and the sale-deed in favour of the defendant was executed on 26.03.1982. But, it has been pleaded that the defendant is an illiterate person and he has accompanied the plaintiffs as witnesses, who got the fictitious agreement executed which came to notice of the defendant, when he received the notice sent by the counsel for the plaintiffs; the defendants are not in possession over the disputed property and, as such, the suit is barred by Section 34 of the Specific Relief Act. In the replication, the plaintiffs have alleged that the defendant is an illiterate person. In view of the pleadings of the parties, the learned Trial Court framed issues, the parties led their evidence. After conclusion of hearing, the learned Trial Court decreed the plaintiffs' suit and the defendant was directed to execute the sale-deed in favour of the plaintiffs within two months. The defendant preferred the Civil Appeal No. 02 of 1991. Learned First Appellate Court has re-assessed the evidence in a detailed manner and has concurred with the findings of the learned Trial Court which have not been challenged before this Court as on point of facts, there is no dispute between the parties.

The learned First Appellate Court has held that by directing the decree for specific performance of Contract, there has been violation of law as provided under Section 168 (A) of U.P.Z.A. & L.R. Act and, as such, it has dismissed the suit for specific performance of contract and has decreed the suit for refund of earnest money together with interest at the rate of 12 per cent per annum. Aggrieved by the aforesaid decree, the plaintiffs have preferred this appeal.

During the course of appeal, appellant Nos. 2 & 3 have died and their heirs have been substituted. The appeal was admitted vide order dated 10.11.1993 on substantial question No. 1, which is as under:-

" 1. Whether has the learned Lower Appellate Court committed an illegality in allowing the defendant's appeal by holding that the purported sale shall be violative of Section 168-A of the U.P.Z.A. & L.R. Act without taking into consideration that the said provision is not attracted in the matter of compulsory sale and is only applicable in the matter of voluntary sale ?"

I have heard learned counsel for the parties and have gone through the records.

Admitted factual position is that the parties have entered into an agreement to sell, which has been concurrently held by both the courts below as proved and final. The learned First Appellate Court has exercised its discretion not to direct Specific Performance and instead directed to refund of the earnest money together with interest at the rate of 12 per cent per annum on the ground that decreeing specific performance shall be violative of Section 168 (A) of U.P.Z.A. & L.R. Act, which has been omitted by U.P. Act No. 27 of 2004. Prior to omission, it reads as follows:-

"168-A. Transfer of fragments- (1) Notwithstanding the provisions of any law for the time being in force, no person shall transfer whether by sale, gift or exchange any fragment situate in a consolidated area except where the transfer is in favour of tenure-holder who has a plot contiguous to the fragment or where the transfer is not in favour of any such tenure-holder the whole or so much of the plot in which the person has bhumidhari rights, which pertains to the fragment is thereby transferred.

2.The transfer of any land contrary to the provisions of sub-section (1) shall be void.

3.When a bhumidhar has made any transfer in contravention of the provisions of sub-section (1) the provisions of Section 167 shall mututis mutandis, apply."

It debars a person from transferring by sale any fragment situated in a consolidated area. The learned First appellate court has passed the impugned judgment and decree dated 01.10.1993, when this section was in force. Now, the factual position is that the sale has not yet been completed in its sub-judice and this appeal is being decided today in the year 2013 when this provision is not enforced. What would be its effect ? While deleting Section 168 (A) by U.P. Act No.27 of 2004 it was provided that this special provision shall cease to be in force after expiry of two years from the date of commencement of this Act. In similar matter, the Hon'ble Apex Court in Mithlesh Kumari and anr. v. Fateh Bahadur Singh and anr. (1991) 2 SCC 236, has held as under:-

"Applying the law to the facts of the case in hand we find that the bhumidhar Jang Bahadur's land admeasuring 10 bighas, 12 biswas and 10 biswansis was itself admittedly a fragment. Jang Bahadur entered into an agreement to sell the land on 5.4.1966 and the first respondent Fateh Bahadur on payment of advance of Rs. 4000 is stated to have had possession of the land. That sale would attract the provisions of Section 168-A if it resulted in transfer of the fragment. The sales to the appellants. Kalawati defendant No. 2 was dated 2.9.1966 and to Mithlesh Kumari defendant No. 3 was dated 21.12.1966. These two sales would be covered by the old provisions of sections 166 and 167, which sections did not deal with the case of bhumidhar but only by sirdar or asami. But Section 168-A would be attracted and the provisions of Section 167 would mutatis mutandis be applicable.'

'Festinatio justitiae est noverea informateeni. (Hob. 97) Hasty justice is stepmother of misfortune. Injustum est nisi tota lege inspecta, de una aliqua ejus particula proposita judicare vel respondere. It is unjust to decide or respond to any particular part of a law without examining the whole of the law."

In Second Appeal No.845 of 2011 (Vimal Kumar & ors. v. Smt. Vinod Kumari)I fully agree with the view of the lower appellate court that as Section 168-A has been deleted hence no relief can be granted to the defendants on the basis thereof." In Second Appeal No.1138 of 2011 (Vijay Bahadur v. Lakshmi Devi) and Second Appeal No.1139 of 2011 (Vijay Bahadur v. Lakshmi Devi and anr.) this Court has held that "Plea of bar of Section 168-A of U.P.Z.A. & L.R. Act was also raised, which prohibited transfer of fragment. However the said section has been deleted w.e.f. August, 2004. Moreover such a plea could not be raised by the appellant who himself transferred part of the land." In Writ-C No.14489 of 2008 (Smt. Sumita Devi v. Sushila Devi & ors.) this Court has held as under:- this Court has held that "

"Moreover as held by the Appellate Court/ A.D.J. plea of sale deed being hit by Section 168-A of the Act under the facts and circumstances of the case, could be raised only by the State or Gaon sabha and respondent no.2 had absolutely no locus standi to agitate the matter. The sale deed was executed by respondent no. 5 in favour of petitioner and both of them were fully satisfied and the Gaon Sabha or the State Government had not challenged the same. In this scenario, no other person had any authority to agitate the matter.

The words 'consolidated area' have not been defined either under U.P. Consolidation of Holdings Act or U.P. Zamindari Abolition & Land Reforms Act. The definition of 'Consolidation area' was irrelevant for the purposes of section 168-A of U.P. Z.A. & L.R. Act. The word 'Consolidation' has been defined under Section 3(2) of U.P. C.H. Act as follows:-

[(2) 'Consolidation' means re-arrangement of holdings in a unit amongst several tenure-holders in such a way as to make their respective holdings more compact];

Explanation- For the purpose of this clause, holding shall not include the following:

(i) Land which was grove in agricultural year immediately preceding the year in which the notification under Section 4 was issued:

(ii) to (vii) - not relevant.

Accordingly grove is not included in the 'Consolidated area' which can only mean rearranged chak.

Moreover provisions of Section 168-A were quite harsh. The Section has also been deleted. U.P. Act No. 27 of 2004 which deleted section 168-A made the previous transactions hit by the said section voidable (in stead of void) and curable (capable of being validated) on payment of some nominal fees within a particular period which has now expired (Section 11). Accordingly, for these two reasons the section shall be interpreted (for the sake of past transactions) liberally, in favour of vendor and vendee."

In relation to interpretation relating to repeal or deletion a full bench of the Hon'ble Apex Court has held in Kolhapur Canesugar Works Ltd. & anr. v. Union of India and ors. (2000) 2 SCC 536 has held:-

"The position is well-known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this Rule, an exception is engrafted by the provisions of Section 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is Introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the Legislature is that the pending proceeding shall not continue but a fresh proceeding for the same purpose may be initiated under the new provision.

In the present case, as noted earlier. Section 6 of the General Clauses Act has no application. There is no saving provision in favour of pending proceedings. Therefore, action for realisation of the amount refunded can only be taken under the new provision in accordance with the terms thereof."

Moreover, the settled legal position is that it must not be forgotten that a matter has to be decided as per law existing on that date. The Hon'ble Apex Court in the case of Union of India & ors. v. Indian Charge Chrome and anr. (1999) 7 SCC 314 has clearly held that the law which is to be applied in the case if the law prevailing on the date of decision making. In a catena of decisions the Hon'ble Apex Court has reiterated the settled legal position that the matter has to be decided on the basis of law existing on the date of decision and not on the basis of the law prevailing on the date of initiation of proceeding. Since second appeal is a substantive remedy it is continuation of proceeding. Recently, in Ravi Shankar Tripathi v. Board of Revenue, [2007 (2) AWC 1327] a Division Bench of this Court has exhaustively dealt with this legal position. 

In Writ-C No.2785 of 1985 (Charan Singh v. VII A.D.J.) this Court has held as under:-

"That Section 168-A of U.P.Z.A.&L.R. Act has been deleted w.e.f. 23rd August 2004 in U.P. This amendment being only prospective will have no application in the present case. As such the orders impugned in this writ petition may be confirmed."

There is no doubt that deletion of Section 168-A is prospective. However, as no sale deed has yet been executed hence the Section as it remained in existence only until 23.8.2004 cannot be applied to the sale deeds to be executed after the said date even if they are executed pursuant to agreements for sale executed during the period when the said Section was on the statute book."

In Second Appeal No.2585 of 1974 (Smt. Janki and anr. v. Murari Lal and ors.) this Court has held as under:-

"In terms of the above said amendments in the present case, the sale deed dated 15.1.1969 executed by Smt. Ganga Devi in favour of Amar Singh and Murari Lal being void under Section 168-A as it stood before the commencement of the Act 2004, was deemed to have been voidable in terms of Section 11 of the special provisions and further amended by Act No.27 of 2004 by which Section 11 has also been omitted as it stood and has been replaced by Section 4 of U. P. Act No.13 of 2004, in terms of which the alleged sale deed dated 15.1.1969 alleged to have become void stands voidable in the case of transfer of such fragment, provided, it has not been entered in the revenue records in favour of the State Government, on the date of the commencement of the U.P. Act No.27 of 2004 or U.P. Act No.13 of 2005 as the case may be and such transferees may get such transfer validated by depositing such fee and within such time and in such manner as may be notified by the State Government. In view of the above said findings, the first question is decided accordingly."

In the above mentioned case the sale deed had been executed and in the instant case before this Court the sale deed is to be executed. Learned First Appellate Court has decided the matter in accordance with law as applicable on the date of decision. But, this Court has decided the second appeal as on today when Section 168-A is no more in force and, as such, the discretion to decree the suit by specific performance of contract cannot be legally denied to the plaintiffs/appellants. As of now, there is no impediment, obstacle or defect in execution of sale deed by its executor in favour of the person in whose favour agreement has already been executed long back.

On the basis of discussions made above, substantial question of law is decided in favour of the appellants and, as such, the appeal deserves to be allowed. Accordingly, appeal is allowed. Judgment and decree of the learned First Appellate Court

Accordingly, second appeal is allowed. Judgment and decree of the learned First Appellate Court dated 1.10.1993 is set aside and the judgment and decree dated 18.11.1989, passed by learned Vth Additional Munsif, Bahraich in Original Suit No.135 of 1985 is confirmed. The respondent is directed to execute the sale deed of the disputed piece of land in favour of the appellants within two months from today, failing which, the plaintiffs shall be entitled to get the sale deed executed through the agency of the Court. In the circumstances of the case the parties shall bear their own costs.

Order Date :- 25.7.2013

Nitesh