GAYA PRASAD Vs. SURENDRA BAHADUR SINGH

JUDGEMENT

(1.) agree with my learned brother that the appeal has to be allowed. The Act involved in this appeal is an anachronism today because it was enacted to benefit the land-holders and zamindars. On a consideration of the facts and circumstances. I feel that equity is in favour of the appellant more than the respondents. The respondents made an application to the Collector, under Section 4 of the Act which was transmitted to the Special Judge, under Section 6 of the Act. He exercised his option under Section 24 and prayed for exemption of the house which is the subject matter of this appeal. This application was allowed as early as 26-3-43. It was long thereafter, on 4-5-58. that he entered into an agreement to sell the house to the appellant herein. Subsequently he made an application to include this house also in the properties to be sold in the proceedings under the Act. The appellant on being informed of this, objected to the request. The Collector rejected this request by his order dated 23rd June. 1961. From this order it is seen that there was an earlier order dated 14-6-45, by which permission to sell the house was rejected by the Deputy Commissioner. There was a mortgage on the property, but before the agreement a decree on the strength of the mortgage had been passed. Under these circumstances, it comes with little grace from the respondents to contend that the agreement to sell, even granting that it would come within the mischief of Section 7, cannot be accepted. Since the mortgage had been extinguished by its merger into a decree, the charge under it has disappeared and in the proceeding, under the Act only a simple decree can be passed. What is more, an order produced before us, dated 7-5-76 shows that no proceedings are pending under the Act at present. In view of the finality of the matter, we do not propose to go into the questions of law regarding public policy, Section 7 contemplates and the authorities bearing on it.

(2.) Under these circumstances, the judgment of the High Court, in my opinion, is more in accord with fair play and justice. The appeal has to be allowed as indicated by my learned brother.

(3.) However, I am of the view that the respondent has to be compensated in some measure by way of equity. I direct the appellant to pay a sum of Rs. 20,000/- to the respondent, taking into account the fact that the property would have escalated in price many times by now.