K. S. Verma, J. - (1.) THIS second appeal arises out of a suit brought by respondent no. 1 for specific performance of agreement of sale dated 9th July, 1963. The agreement has been filed Ext. 11. The case of respondent no. 1 is that he entered into a contract with Sultan, who is respondent no. 2 in this appeal, to execute a sale-deed in respect of the properties mentioned in paragraph 1 of the plaint. Respondent no. 1 maintains that he advanced Rs. 850.00 to Sul an on 9-7-1963 who again borrowed Rs. 350.00 and executed a pronote and a receipt dated 5-10-1963. It was further contended by respondent no. 1 that Sultan executed a Patta in his favour on a rent of Rs. 20.00 per annum. Subsequently, Sultan executed a sale-deed in respect of the property in favour of the present appellants on 7-6-1963. On these allegations the respondent no. 1 maintains that he is entitled to a decree for specific performance of contract directing the defendants to execute the sale deed in his favour and in the alternative, has claimed refund of the advance money. Respondent no. 1 contested the suit on the allegation that he had purchased plot no. 350 for Rs. 750.00 and had no knowledge about any agreement in plaintiifs favour.
(2.) HE further contended that he was a bona fide purchaser for value without notice of the rights of the plaintiff and was protected by section 41 of the Transfer of Property Act. On the above pleadings, following issues were framed:- 1. Whether defendant no. 1 executed any agreement to sell the property in dispute to the plaintiff as alleged? 2. Whether the defendants 2 and 3 had any knowledge of the said agreement ? 3. Whether the defendant was minor at the date of alleged agreement. 4. To what relief, if any, is the plaintiff entitled ? The trial court by its judgment and decree dated 22-7-69 decreed the suit of respondent no. 1 for specific performance of contract against the present appellants. The appellants were directed to execute the sale-deed in respect of the property to suit within two months and the plaintiff was required to pay the balance of Rs. 800.00 to Sultan, respondent no. 2. Against the decision given by the trial Court, the plaintiff filed an appeal in the Court of the District Judge, Rae Bareli. The appeal came up for hearing before the Civil and Session Judge, Rae Bareli who by his judgment and decree dated 5-8-1970, dismissed the appeal. The defendants have come up in second appeal before this Court. In this Second appeal, Mr. Harguru Charan Srivastava learned counsel for the appellants has argued that Ext. 11 the agreement related to plots nos. 7, 165, 299, 350, 504/1 and 504/3. During the Consolidation operations, those plots were allotted to other persons and in the place of the plots referred to above, plots nos. 7, 8, 10 and 350 were given to Sultan respondent no. 2. The argument of Mr. Harguru Charan Srivastava is that haying regard to the provisions of sections of section 30 of the U. P. Consolidation of Holdings Act, and on account of fchange of plots in the Consolidation proceedings, the decree for specific performance in terms prayed for by respondent no. 1 cannot be granted. In support of his submissions, he has relied upon a Full Bench decision of this Court reported in Maliendra Nath v. Bakimthi Devi 1976 A.L.R. 21, and has contended that the correct interpretation of section 30 of the U. P. Consolidation of Holdings Act, the right, title, interest and liabilities in respect of the former plots shall cease and since the rights in those plots come to an end, a decree for specific performance of contract could not be awarded in respect of the new plots which are not covered by the agreement. The learned counsel has submitted that in a suit for specific performance of a contract for sale the contract has to be specifically enforced. If such strict enforcement is not possible, the agreement would be hit by the rule of frustration and such a contract could not be enforced nor a decree passed on the basis of such a contract could be executed. He has submitted that since plot numbers have changed, no decree for specific performance can be passed in respect of those plots which are now not covered by the agreement. After having perused the decision relied upon by Mr. Harguru Charan Srivastava, I am of opinion that there is merit in this contention. The Hon'ble Judge constituting the Full Bench have categorically held that where original plots included in the agreement have undergone a substantial change, it would not be possible to enforce an agreement in respect of the substituted plots included in the chak. In the face of this decision the submissions made by Mr. Harguru Charan Srivastava have to be accepted.
(3.) THE next question that arises is that what relief can be granted to the appellants in view of the change in the numbers of plots. From the narration of facts given by the lower appellate Court, it appears that in place of plots mentioned in Ext. 11, respondent no. 2 was given plots nos. 7, 8, 10 and 350. It appear that plots nos. 7 and 350 were the original plots ard they have been kept intact and allotted to respondent no. 1. The question would, therefore, arise as to how the. equiries have to be adjusted. Ext. 11 indicates that the sale consideration for the plots mentioned in the deed is Rs. 2000.00. The question would arise as to what price would be payable in respect of the two plots which were also included in the original holding. Mr. Harguru Charan Srivastava has contended that in regard to plot no. 350, there was some litigation between Dwarika Prasad and Maiku and the name of Maiku was ordered to be recorded by the Consolidation authorities. It is not possible for this Court on the material already on record to determine as to what amount would be payable to the plaintiff if the decree for specific performance of contract is passed after the change of plot numbers. In order to determine this question, it is necessary that inquiry be made as to on payment of what amount the suit for specific performance can be decreed and on what conditions. After having heard Mr. Harguru Charan Srivastava at length. I find that the plaintiff's suit for specific performance of contract has to be decreed.;