V.C.MISRA.J. - (1.) HEARD Shri V.K.S. Chaudhary Senior Advocate assisted by Shri NP. Singh learned counsel for the appellants -defendants and Shri Mithlesh Kumar Tiwari and Shri Kharak Singh learned counsel for the respondents. 1. This second appeal arises out of the judgment and decree dated 24.8.1974 passed by the District Judge, Bulandshashr in Civil Appeal No. 314 of 1971 Murari Lal and Ors. v. Smt. Janki and Ors. arising out of Original Suit No. 191 of 1969 between Murari Lal and Ors v. Smt. Ganga Devi and Ors., and also challenging the findings dated 24.3.1982 passed by the District Judge in the lower appellate Court.
(2.) THE case of the appellant in brief is that Khazan Singh (husband of Smt. Ganga Devi defendant No. 1), Chiranji defendant No. 2 and Fatte (husband of Smt. Janki defendant No. 3) were 3 real brothers. The dispute between Smt. Ganga Devi and Chiranji and Fatte (deceased) substituted by her legal heir Smt. Janki, arose on the allegation that Smt. Ganga Devi had remarried and lost all rights and title in the land in accordance with the provisions of Section 172 of U.P. Zamindari Abolition and Land Reforms Act No. 1 of 1951 (hereinafter referred to in short as the Act) although it was held by the revenue Court that though she was living with another person but no case of remarriage could be proved and she continued to be the tenure holder. Due to the dispute during consolidation proceedings in the area between the above said three co -tenure holders, the proposed Chaks of three branches were numbered as 89 -A; 89 -B and 89 -C at one place. Plot No. 89 -C (in question) was proposed for Smt. Ganga Devr, which consisted of two parts, one the Bhumidhari portion of 4 -14 -13 bighas and another Sirdhari portion as 2 -18 -11 Bighas, total being 7 -15 -4 bighas. Smt. Ganga Devi allegedly deposited ten times rent for the Sirdhari plots of area 2 -18 -11 part of the plot No. 89 -C on 15.1.1969 and accordingly became Bhumidhar of the entire plot No. 89 -C consisting of total area of 7 -15 -4 bighas. On same date, i.e., 15.1.1969 Smt. Ganga Devi allegedly sold her part of plot No. 89 -C admeasuring 2 -18 -11 bighas in favour of Murari Lal plaintiff No. 1 and Amar Singh plaintiff No. 2 both sons of one Ganga Sahai who was the Pairokar of Smt. Ganga Devil On 15.1.1969, Smt. Ganga Devi also sold an area of 0 -13 -19 in favour of one Dulli alleged to be the servant of Ganga Sahai in separate plot No. 765. It is alleged that on 12.3.1969 Smt. Ganga Devi entered into an agreement to sell, part of the agricultural land situated in plots Nos. 89 -C and 725 -C in favour of Murari Lal and others (sons of Ganga Sahai) for Rs. 9,000/ -. This execution of unregistered agreement was disputed by the appellants -defendants alleged to have been forged and not duly executed by her in accordance with law. It has also been alleged that she leased out her rest of the land to Ganga Sahai. On 2.6.1969, Smt. Ganga Devi admittedly sold her entire plots to Chiranji and Fatte (husband of Smt. Janki Devi -appellant -defendant). Murari Lal and others (sons of Ganga Sahai) respondents -plaintiffs on 31.10.1969 filed an Original Suit No. 191 of 1969 in the Court of Civil Judge for specific performance of contract regarding land admeasuring 4 -14 -13 bighas part of agricultural plot No. 89 -C and 0 -8 -0 of plot No. 725. In para -7 of the plaint, it has been stated that Smt. Ganga Devi -defendant No. 1 had entered into a written agreement dated 12.3.1969 for sale of the said land and have received a sum of Rs. 5,100/ - in advance and only an amount of Rs. 3,900/ - remained in balance. In Para -9 of the plaint it has been stated that the plaintiff is ready to pay the balance amount of Rs. 3,900/ - and has always been ready and the sale deed may be executed on the basis of the said agreement. In para -10 it has been stated that the cause of action arose on 12.3.1969 the date of execution of the agreement of sale by defendant No. 1 in favour of plaintiffs and thereafter on 2.6,1969 the date of the execution of sale deed by the defendant No. 1 in favour of defendants No. 2 and 3. In the written statement filed by, defendants No. 2 and 3, in paragraphs 4,5 and 6 objections were raised in terms with the provisions of Section 168 -A of the U.P. Zamindari Abolition and Land Reforms Act, which reads as under: -, '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 is 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 mutatis mutandis apply.' The Additional Civil Judge vide order dated 22.9.1971, dismissed the Original Suit No. 191 of 1969 filed by Murari Lal and others for specific performance of contract. The District Judge vide its order dated 24.8.1974 passed in Civil Appeal No. 314 of 1971 allowed the appeal of Murari Lal and others with costs, holding, inter -alia, that the contesting defendants -respondents (now appellants), had full knowledge of the agreement to sell before the execution of the sale deed dated 2,6.196's in their favour and, therefore, were not bonafide purchasers for value without notice and were thus not entitled to any protection under Section 41 of the Transfer of Property Act wrongly held by the lower Court which had no application to the present case of specific performance of contract and the agreement to sell could be specifically enforced against all the defendants. It decreed the Original Suit No. 191 of 1969 of Murari Lal and others for specific performance of contract. Two months' time was granted to the defendants to execute the sale deed in terms of the said agreement. Since, the appellate Court had not decided the effect of Section 168 -A of the U.P. Zamindari Abolition of Land Reforms Act raised by the defendants Nos. 2 and 3 and also dealt with in the Judgment passed by the lower appellate Court. This Court (Hon'ble KM Dayal, J,), vide order dated 30th of July 1981 framed the following issue and remitted to the lower appellate Court for decision 'Whether the sale deed dated 15.3.1969 (corrected as 15.1.1969) executed by Smt. Ganga Devi in favour of Lulli and Amar Singh was valid in view of Section 168 -A of the U.P.Z.A. & L.R. Act, if so its effect ?' The lower appellate Court allowed the parties to adduce necessary evidence in respect with the referred issue, the plaintiffs did not lead any evidence, however the defendants filed papers and led their evidence and recalled one Chiranji Lal defendant No. 2 for re -examination. The lower appellate Court after hearing the parties vide its order dated 24.3.1982 decided the issue in affirmative assigning its reason, and submitted the same before this Court. The appellants filed their objections to the above said findings of the lower appellate Court and while challenging the same raised three further grounds. An Original Suit No. 277 of 1969 was filed on dated 26.6.1969 in the Court of Munsif by Ganga Sahai father of plaintiffs against Chiranji and others for Injunction restraining the defendants from interfering with his alleged possession as j sub tenant over the alleged leased out portion of the plot No. 84 -C in his favour. The Original Suit No. 277 of 1969 was dismissed by the Court of Munsif vide order -dated 22.5.1972. Thereafter, vide order dated 18.1.1973, the District Judge also dismissed the appeal of Ganga Sahai holding inter -alia, that the transfer of Ganga Sahai and Dulli was void being hit by Section 168 -A of the Act. The Sub Divisional Magistrate in the proceedings under Section 145 Cr. P.C. at the instance of Amar Singh son of Murari Lal -respondents Vide order -dated 22.12.1969 upheld the possession of Chiranji and Fatte and directed Murari Lal and others not to disturb the possession of Chiranji and Fatte. The matter came up before this Court and vide order dated 15.11.1972 it held Chjranji and Fatte to be in possession of the land in question under Section 145 Cr. P.C. and confirmed the orders of the lower Courts.
(3.) LEARNED counsel for the appellants has also submitted that the alleged contract of sale executed by Smt. Ganga Devi is a forged and fabricated document as per the statement of one Laxmi Kant attesting witness and also on the face of the record, as there is irregular spacing of the typed contents and specially the last line having been typed without any spacing since the alleged thumb of Smt. Ganga Devi existed on the said blank paper on which the alleged contract of sale has been typed out, though after the thumb impression, there was still ample of space left at the bottom of the page and the fin, rig by the learned District Judge that it was so done to confine the deed to a single sheet is contrary to what is apparent on the face of the document and without any evidence. It is based on mere surmises and -conjectures, and more so, this document does not contain the name of the deed writer and typist and has not been signed by the witness at the margin which is customary, but signed at the bottom of the document. It has also been submitted that Ganga Sahai father of the plaintiffs -respondents was doing pairvi on her behalf before the Consolidation Court, and he appears to have procured her thumb impression on blank papers and that her written statement in another case was inadmissible as evidence, as such, against the defendant -appellant since neither she was examined nor she entered in the witness box nor any affidavit was filed by her. She never came to the Court and even the said written statement was filed through her counsel. He has referred to Section 18 of the Evidence Act, which refers that the statement made by the persons referred to therein, are admissions, if they are made during the continuance of the interest of the persons making the statement. Her statement contained in the written statement was made after she had sold and parted with her whole property and had no proprietary interest left therein, thus, her statement made after parting her proprietary interest was not admissible against the defendant -appellant and the learned Icwer appellate court has grossly erred in relying upon the same. No compelling reasons existed for the lower appellate court to upset the judgment and decree of the trial Court with regard to the defendant being bonafide purchaser for value without notice of the contract. In fact, contract did not exist at that time and the suit was filed only after Smt. Ganga Devi had sold the property in favour of the appellants. Learned counsel for the appellants has further stressed that the Consolidation of Holding Rules are not applicable in the present case. The learned counsel for the appellants has further submitted that at the time when the appeal had been filed in 1974 the necessary amendments in Section 100 of the Code of Civil Procedure had not been made and therefore, no substantial question was required to be framed by the Court while admitting the appeal, more so, in terms of the saving clause Section 97(2) -clause (m) in the Central Act 104 of 1976. However, in my view the following substantial questions of law arise from the pleadings for consideration by this Court: - (1) Whether by sale deed dated 15.1.1969 of a part of Plot No. 89 -C by Smt. Ganga Devi in favour of Amar Singh and Murari Lal which was of a transfer of a fragment in a consolidation area was thus in terms of the provisions of Section 168 of the Principal Act, and thus rendering the decree for specific performance of contract of sale and transfer of the other remaining fragment of Plot N0.89 -C as illegal ? (2) Whether in the absence of the averments made in the plaint that the plaintiff had been and was still 'ready and willing' to perform the essential terms of the alleged agreement which was to be performed by him in terms of clause (c) of Section 16 of the Specific Relief Act, 1963 and Form -48 given in Appendix 'A' of the Order 48 Rule 3 of the Code of Civil Procedure, the plaint ought to have been dismissed ? Learned counsel for the respondents has submitted that no substantial question of law arises from the pleadings of the case and, therefore, in terms of the decisions delivered by this Court in the case of Deena Nath v. Sreedhar Dayal Pathak and Anr. reported in 2003 (2) AWC, page 1002, the appeal deserves to be dismissed. ;