CHANDRA SHEKHAR DWIVEDI Vs. KHADDI

JUDGEMENT

(1.) This Second Appeal is by the defendant and arises out of suit No. 170 of 1955 of the Court City Munsif, Farrukhabad. Plaintiff-respondent Khaddi was the Zamindar and proprietor of a grove of plot Nos. 589, area 0. 50 acres (now No. 675) and 590, area 0. 55 acres (now No. 676) of Village Daud, Pargana Bhojpur, District Farrukhabad. On April 14, 1952 he executed a registered document (Ext. A-1) in favour of Chanra Shekhar, the present appellant. Under this document, a sale was made by him of the trees standing on the plots in favour of Chandra Shekhar for a sum of Rs. 2000/- and a permanent lease, on payment of annual rent of Rs. 2/- in respect of the land. Chandra Shekhar, in turn, executed another document (Ext. 17) undertaking to reconvey the property covered by Ext. A-l to Khaddi for a consideration of Rs. 2500/, if paid, within a period of four years. Subsequently, respondent Nos. 2 to 5 were added as plaintiffs in the suit as they had obtained sale-deed of half of share of the disputed grove from Khaddi. Suit No. 170 of 1955 was filed on April 14, 1955 that is, before the expiry of the period of four years stipulated in Ext. 17. The suit contained a prayer for a decree for specific performance of the contract for conveyance as contained in Ext. 17. With the other pleas and reliefs mentioned in the plaint, we are not concerned now. Chandra Shekhar resisted the suit, mainly, on the ground that he had become a hereditary tenant and, therefore, Sirdar of the land in suit by opera tion of law upon the enforcement of the U. P. Zamindari Abolition and Land Reforms Act with effect from July 1, 1952. During consolidation proceedings he has been held to be a sirdar of the land. Sirdari rights not being transfe rable, no reconveyance in pursuance of the agreement Ext. 17 could be enforc ed. Khaddi having not paid the amount contemplated in the deed of reconve yance, within the time stipulated therein, could not seek reconveyance even of the trees. The trial Court decreed the suit in part. It held that Khaddi had with full knowledge, executed the deed of sale of the grove trees and lease of the land therein (Ext. A-l) so that defendant Chandra Shekhar had become hereditary tenant of the land and thereafter Sirdar thereof. Obligation meant for the plaintiff under the deed of reconveyance (Ext. 17) had been duly fulfil led so that the plaintiff was entitled to a decree for reconveyance of the trees upon payment of Rs. 2400/- which was then due under it to the defendant. He could not, however, seek reconveyance of the land for the defendant had become sirdar thereof by operation of law. In appeal, the lower appellate Court also held that the transaction dated April 14, 1952 evidenced by Ext. A-l wase sale of the trees of the grove in favour of the defendant and a permanent lease in his favour of the land thereof. The property covered by the document was agreed to be reconveyed through Ext. 17 by the defendant for a consideration of Rs. 2500/ -. It further held that the defen dant had become sirdar of the land in the grove in suit as had also been held by the consolidation Courts. It, however, decreed reconveyance not only of the trees but also of the land in terms of Ext. 17 directing the defendant to execute the sale-deed after obtaining bhumidhari rights. It found that the defendant was, in fact, entitled to get a sum of Rs. 2060/- before he could be required to reconvey the property to the plaintiff. Consequently, modifying the trial Court decree, it entered a decree in favour of the plaintiff for reconveyance in the terms aforesaid. The present appeal is directed against the decree so passed. Connected with the Second Appeal is writ petition No. 1467 of 1977 filed by plaintiff Khaddi in which he has assailed the decisions of the consolida tion Courts holding the defendant (impleaded as respondent No. 4 in the petition) to be the sirdar of the plots. This petition was filed on September 22, 1977. The writ petition may be disposed of in the first instance. The consolida tion Officer held in favour of the defendant on December 18, 1970 that he had a Sirdar. The Assistant Settlement Officer ("consolidation) affirmed this decision by order dated August 10, 1971 while the Deputy Director of Consolidation affirmed it by order dated October 7, 1971. The case of petiti oner Khaddi is that he was not advised to assail these decisions of the Consoli dation Courts earlier because there was a decree for reconveyance in his favour of the entire property covered by the agreement dated April 14, 1952 passed by the lower appellate Court on March 17, 1972 in suit No. 170 of 1955. It has been averred in paragraph 17 of the petition that he thought that the judgment of the consolidation authorities would not stand in his way and that no lawyer in the lower Court advised him to assail the decisions of the consolidation authori ties. In paragraphs 18 and 19 of the petition, it has been stated that he had engaged, in the Second Appeal, on Mr. Gaucam and thereafter Mr J. N. Chatterji as counsel but none of them advised him to file a writ petition. The averment in paragraphs 20, 21 and 22 of the petition is that on August 12, 1977 he engaged Sri N. Lal, Advocate and gave all papers to him and it was he who advised him, after studying the papers, that the decision of the consoli dation authorities should be assailed in a writ petition which should be got connected with the Second Appeal in which the decree of the Courts below had been assailed by the defendant. The averment in these paragraphs has been controverted in paragraph 5 of the counter affidavit filed on behalf of the defendant in which it has been asserted that the petition was highly belated and that the petitioner was guilty of laches. As noticed earlier, the trial Court as also the lower appellate Court, in the suit filed by petitioner Khaddi, have taken the view that the defendant Chandra Shekhar had become a Sirdar on account of the permanent lease in his favour by Khaddi on April 14, 1952 by virtue of the provisions of U. P, Act No. 1 of 1951. This was also the decision of the consolidation authorities which had become final between the parties on the dismissal of the revision, filed by Khaddi, by the Deputy Director of Consolidation by his order dated October 7, 1971. The defendant's second appeal was admitted by this Court on May 2, 1972. In this second appeal, as noticed earlier, the defendant had assailed the decree directing specific performance of the contract of recon veyance (Ext. 17 ). While upholding his status as Sirdar. As such, the petiti oner's averment that he thought that the judgment of the consolidation autho rities would not stand in his way and the further claim that he did not assail the judgment of the consolidation authorities as he had not been advised to do so prior to the year 1977 can hardly be said to be sufficient explanation for the inordinate delay with which he filed the petition assailing the determination that the defendant had become sirdar of the plots. Even on the allegation made in the petition, it is obvious that he was guilty of laches. The petition deserves to be dismissed on this ground alone without. The finding, as noticed earlier, which has been recorded by both the Courts below in the suit is that the defendant had become a Sirdar on account of the hereditary status acquired by him under the permanent lease of the plots through the deed dated April 14, 1952 (Ext. A-l ). The contention to the contrary, raised by the plaintiff was negatived by the consolidation Courts which decision has become final. The consolidation Courts could have dealt with the matter for, as held by a Full Bench of this Court (by majority) in Dalel and another v. Babu and others (1963 A. L. J. 265), the question of title to grove land could be gone into by the authorities under the U. P. Consolidation of Holdings Act and as such the suit in regard to it was barred under Section 49 of that Act. It is, therefore, not open to the plaintiff to agitate the question in the present appeal. What really has to be determined in the present appeal is the question as to whether, on the finding that the defendant had become a sirdar of the land in suit, a decree for specific performance of the contract of reconveyance contained in the deed (Ext. 17) could be passed. The submissions of Sri G. P. Bhargava are, firstly, that no decree could be granted in favour of the plaintiff since he had failed to prove that he was ready and willing to perform his part of the obligation, secondly, that the plots in suit being sirdari land, which was non-transferable no conveyance thereof could be directed and, thirdly, that the rights acquired by the defendant under U. P. Act 1 of J 951 were in the nature of new rights upon enforcement of that Act, different from the one which he had agreed to reconvey, so that a decree for specific performance could not be passed in respect thereof. On behalf of the plaintiff, on the contrary, it has been argued that the necessary averment and proof of his readiness and willingness to perform his part of the obligation was present in the case and that the fact that the defen dant was a Sirdar could not preclude the plaintiff from enforcing his right to seek reconveyance for the defendant could be directed to reconvey the property after acquiring bhumidhari rights and further that so long as the subject-matter of the contract, in respect whereof specific performance was sought, remained the same, the mere fact that instead of being a hereditary tenant under the U. P. Tenancy Act, 1939, the defendant had become a Sirdar thereof under U. P. Act 1 of 1951, would not absolve him of his obligation under the contract. The agreement for reconveyance of the property in suit of which specific performance is sought was executed on April 14, 1952. It has been alleged in the plaint by Khaddi that he asked the defendant to reconvey the property and gave notice for that purpose and waited at the office of the sub-Registar on April 2, 1955, being the date mentioned by him in the notice, and further that the deed of conveyance be got executed on payment by him of any amount which may be found due and payable. The Courts below, as is clear from their judgments, found these facts to be correct. The trial Court dealt with the question of readiness and willingness on the part of the plaintiff under issue No. 3 framed by it in suit No. 170 of 1954. The lower appellate Court did not differ from the view taken by the trial Court in this respect. In the circumstances, it must be held that Khaddi had succeeded in pleading and es tablishing that he was ready and willing to perform his part of the contract. As observed by the Supreme Court in Ramesh Chandra Chandlok and another v. Chuni Lal Sabharwal, ( A. I. R. 1971 S. C. 1238) (in paragraph 7 of the report), "readiness and will ingness cannot be treated as a straightjacket formula. These have to be deter mined from the entirety of facts and circumstances relevant to the intention and conduct of the party concerned. In our judgment there was nothing to indicate that the appellants at any stage were not ready and willing to perform their part of the contract. " The Supreme Court held the agreement dated July 18, 1955 for the sale of the property by the respondent before it to be specifically enforceable even though the property had been transferred to a third person and the land, which was the subject-matter of the contract, was one in which the vendor had lease-hold rights which could only be transferred with the con sent of the Rehabilitation Ministry. An agreement, like in the present case, to transfer immovable property contains an implied covenant on the part of the vendor to do all that is neces sary to give effect to the agreement (See: Motilal and others v. Nanhe Lal and another (A. I. R. 1930 P. C. 287), The covenant, which has necessarily to be implied in the instant case, for ensuring that the agreement fructifies into a sale is that the defendant undertook also to acquire transferable right in the land in suit. Even on the finding that defendant Chandra Shekhar was only a Sirdar of the land, he can be required still to execute the deed of reconveyance after acquiring bhumidhari rights therein. The argument that the rights which were acquired by the defendant under U. P. Act No. 1 of 1951 being entirely a new set of rights, different from the one that the defendant possessed in the land in suit prior to the enforcement of that Act, so that the subject-matter of the agreement for reconveyance ceased to exist and that agreement could, therefore, not be specifically enforced by the plaintiff, cannot, in the circumstances of the instant case, be accepted. The real question, according to the Supreme Court, is to determine whether the property which was the subject-matter of the contract for sale was substantially the same in respect whereof the transfer was being sought. In Smt. Baikunthi Devi and others v. Mahendra Nath and another, (A. I. R. 1977 S. C. 1514) it held that where substantially the same land was the subject matter of the agreement to sell which had been allot ted in consolidation proceedings to the defendant, there is no difficulty at all in enforcing specifically the agreement which was the basis of the suit. In that case, the Supreme Court negatived the contention that on account of the con solidation proceedings, even though the same land may have been allotted in the new chak under the U. P. Consolidation of Holdings Act, there was never theless a loss of identity, the emergence of a new character, the incarnation of a new entity as it were so that the specific performance could not be granted as a discretionary relief to the plaintiff. In Piarey Lal v. Hori Lal, A. I. R. 1977 S. C. 1226 upon which great reliance was placed by the learned counsel for the appellant, the circumstances were entirely different. In that case, the Supreme Court took the view that upon allotment of a chak under the consolidation scheme, the defendant had lost his rights, title and in terest in his original holding which was the subject-matter of the contract for sale. The contract could not be specifically enforced in respect of the land forming part of the new chak allotted to the defendant. This, according to the Supreme Court, was the result of the provisions of Section 30 of the U. P. Consolidation of Holdings Act. The Supreme Court proceeded to observe (in paragraph 7 of the report) as under: "it may be mentioned that counsel for the respondent tried to argue that the defendant was bound to execute a proper conveyance of his original holding, which was the subject-matter of the agreement for sale, because, that holding had been 'substituted' by the 'chak' He also tried to argue that the 'chak' allotted to the defendant by way of consolidation of his so that there was no occasion to invoke Section 30 of the Act. Counsel could not however support his argument by reference to the law, or the facts of the case. Moreover, he was unable to show how he could raise any such argument when the special leave had been limited to the interpretation of Clauses (a) and (b) of Section 30 of the Act. " The decision clearly does not assist the appellant. In conclusion, it must be held that the appellant has not been able to make out any ground for interference with the decree directing specific perfor mance of the agreement of reconveyance dated April 14, 1952 (Ext. A-l ). The appeal deserves to fail and is dismissed with costs. The writ petition is also dismissed with costs. .