MOHD ISLAM Vs. BOARD OF REVENUE

JUDGEMENT

(1.) JANARDAN Sahai, J. These two petitions arise out of the order of Board of Revenue dated 26-6-1997. The suit-giving rise to these writ petitions was filed by Bhagwan Swaroop the father of Anil Kumar and Roop Kumar the Petitioners of Writ Petition No. 16634 of 2004 and respondents in the other Writ Petition No. 32682 of 1987. The case of the plaintiff Bhagwan Swaroop was that he is adopted son of deceased tenure-holder Ram Gopal and was in possession. The defendants in the suit were the State and Gaon Sabha and one Smt. Jagwanti the widow of Ram Gopal. She denied the adoption. Sri Ajai Kumar Sharma, learned Counsel for Mohd. Islam and Mohd. Inam the contesting respondent Nos. 6 and 7 in Writ Petition No. 16634 of 2004 and the Petitioners in Writ Petition No. 32682 of 1997 states that during, the pendency of the suit Smt. Jagwanti died and she was substituted by the Gaon Sabha. There however appears to be some doubt about this fact and the record of the trial Court, which is not before this Court would have to be checked up. The suit was decreed by the trial Court on 30-7-1992 with the finding that Bhagwan Swaroop was the adopted son of Ram Gopal. Against the decree of the trial Court an appeal was preferred by Mohd. Islam and Mohd. Inam who were not parties in the suit but claimed rights alleging that an agreement to sell was executed in their favour by Jagwanti on 24-3-1982. It is however not their case that any possession was transferred to them under the said agreement. The Appeal was allowed by the Additional Commissioner and the case was remanded for a fresh decision by the trial Court. Against the remand order of the Additional Commissioner a second appeal was preferred by Bhagwan Swaroop. The second appeal filed by Bhagwan Swaroop was dismissed. However, the Board of Revenue held that the property in dispute would vest in the Gaon Sabha and the State as Jagwanti died heirless. It negatived the claims of Bhagwan Swaroop and of Mohd. Islam and Mohd. Inam. As regard the case of Bhagwan Swaroop the Board of Revenue has held that the adoption was not proved. As regards the case of Mohd. Islam and Mohd. Inam the Board of Revenue held that no rights in the property were created in their favour by the agreement of sale and observed that Mohd. Islam and Mohd. Inam may seek their remedy in the Civil Court. It appears that a review application was filed against the judgment of the Board of Revenue by the Petitioner Anil Kumar Maheshwari, which was dismissed in default. The order of the Board of Revenue is challenged in both the writ petitions.

(2.) I have heard Sri V. C. Mishra, learned Senior Counsel assisted by Sri Pankaj Dubey, learned Counsel for Anil Kumar and Roop Kumar and Sri Ajai Kumar Sharma, learned Counsel for Mohd. Islam and Hohd. Inam. It was submitted by Sri V. C. Mishra that the agreement of sale does not create any interest in the property and consequently Mohd. Islam and Mohd. Inam were not aggrieved by the decree of the trial Court and had no right to maintain the appeal. In support of his contention he relies upon two decisions of the Supreme Court the first being Patel Natwarlal Rupji v. Kondh Group Kheti Vishayak and another, 1996 (7) SCC 690, in which it was held that an agreement of sale cannot confer title and interest in the land. The other decision is Northern Plastics Ltd. , v. Hindustan Photo Films Mfg. Co. Ltd. , & Ors. , 1997 (4) SCC 452, in this case it was held that an appeal is a creature of statute and can be filed only by persons permitted by the statute and subject to statutory conditions. The Apex Court interpreted the meaning of the expression 'person aggrieved' occurring in Section 29-A of the Customs Act. This latter decision has no direct bearing upon the nature of the rights of a holder of an agreement of sell. Learned Counsel for Mohd. Islam and Mohd. Inam submitted that by virtue of provisions of Section 40 of the Transfer of Property Act and those of Sections 37 and 40 of the Indian Contract Act a person in whose favour an agreement to sell has been executed has a sufficient interest to maintain an appeal as he is a person aggrieved. He relied upon the decision in Ram Baran Prasad v. Ram Mohit Hazra & Ors. , AIR 1967 SC 744. It was held in this case interpreting Section 54 of the Transfer of Property Act that a mere contract for sale of immovable property does not create any interest in the immovable property. Sri Ajai Kumar Sharma however made emphatic reference to the observations of the Supreme Court in this case that Section 40 of the Transfer of Property Act makes a substantial departure from the English law, for an obligation under a contract which creates no interest in land but which concerns land is made enforceable against an assignee of the land who takes from the promisor either gratuitously or takes for value but with notice. A contract of this nature does not stand on the same footing as a mere personal contract as it can be enforced against an assignee with notice. The decision is clearly distinguishable and does not advance the contention on behalf of Mod. Islam and Mohd. Inam is for what has been held is that an agreement to sale confers right upon the holder thereof to enforce the contract not only against the executant of the contract but also against the assignee. In the present case a suit was instituted by Bhagwan Swaroop against Smt. Jagwantia on the basis of an adoption by Ram Gopal. Smt. Jagwantia denied the adoption. The other decision cited is New Okhla Industrial Development Authority v. Ram Bal & Ors. , 1989 RD 478. This was a case in which an appeal was preferred against enhancement of compensation. The appeal was filed by the corporation for whose benefits proceedings had taken place. It was held by this Court that the corporation had a right to maintain an appeal under Section 96 of the Civil Procedure Code, as it was a person aggrieved. This decision also is wholly distinguishable as it does not deal with the case of an agreement of sale at all. The last decision cited is Smt. Pan Kumari v. The Board of Revenue & Anr. , 1992 RD 408, in which the Court held that under Order I Rule 10 (2) C. P. C. the Court has wide discretion to add necessary and proper parties. As I have already held that to interest was created by the agreement of sale in favour of the Petitioners, the petitioners cannot be regarded either as a necessary party or a proper party. That apart according to the submission of Sri Ajai Kumar Sharma himself Smt. Jagwantia had died while the suit was pending in the trial Court and was substituted by the Gaon Sabha, which, if such is correct, had a right to conduct the suit upto its final stage. For these reasons the contention of the Counsel for the petitioners Mohd. Islam and Mohd. Inam cannot be accepted. The Board of Revenue appears to be right in holding that they were not persons in whose favour any interest was created.