Jagdish Chander Vs. Brij Mohan &
Ors  INSC 22 (6 February 1978)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
CITATION: 1978 AIR 1318 1978 SCR (2) 805 1978
SCC (2) 361
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
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
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
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.
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 below should have
exercised their discretion to passing a decree for specific performance]
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
S. C. Manchanda and S. T. Aneja for the
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 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 he 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 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.