K.N.SETH,J. - (1.) IN the suit for specific performance of the agreement of sale giving rise to this execution appeal by the judgment debtor a decree for possession after executibn of a sale deed was claimed by the plaintiffs on the basis of an agreement for sale relating to 2/3rd share in 16 plots of land situate in village Kharyanpur, Pargana Gopalpur, district Jaunpur, and 48 decimal of a grove in plot No. 92 situate in the same village. The suit was ultimately decreed by the High Court. It may be mentioned here that on the failure of the judgment debtor to execute the sale deed, the court itself executed a sale deed in favour of the decree-holders on 30th November 1968 covering the plots in question. The execution of the decree was resisted by the judgment debtor on a number of grounds which did not find favour with the courts below, hence this appeal.
(2.) LEARNED counsel for the appellant raised two questions in support of the appeal: (1) that the agreement for sale was in respect of fixed rate tenancy plots. After the enforcement of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) the existing rights of the judgment debtor ceased and he acquired altogether new rights and no decree for specific performance of the agreement could be validly passed or executed against the newly acquired rights; and (2) that during the pendency of the execution proceedings as a result of the consolidation proceedings the judgment debtor was allotted a new chak consisting of entirely different plots and the decree for possession could not be executed against the plots allotted to him under the consolidation proceedings. The agreement of sale on which the suit was based was in respect of 2/3rd share of the judgment debtor in specified plots and a grove. It was filed before the enforcement of the Act. The decree of the trial court directed the defendant judgment debtor to execute the sale deed in favour of the plaintiffs. In the second appeal before this court the defendant raised certain new pleas on the basis of the Act which had come into force after the decree of the trial court. One of the pleas raised was that the property which was the subject matter of the agreement had changed its character. The agreement related to the fixed rate tenancy which had become Bhumidhari property. It was urged that the agreement could not be enforced. A Bench of this court repelled the contention on merits and affirmed the decree of the trial court. Learned counsel for the appellant urged that the view taken by this court in the second appeal was erroneous in law and the decree passed by it could not be enforced. Reliance was placed on a Supreme Court decision in Rana Sheo Ambar Singh v. Allahabad Bank Ltd. Allahabad 1961 A.L.J. 716. 98 and certain other decisions of this court. In Rana Sheo Ambar Singh's case propriety rights in 67 villages were mortgaged in favour of the Bank. The Bank obtained a final decree in 1926 for recovery of a certain sum of money by sale of the mortgaged property i.e. the proprietary rights of the mortgagor in 67 villages. During the pendency of the execution proceedings the Act came into force. An objection was raised that the zamindari rights could not be sold and only such rights of the judgment debtor as remained in him after the coming into force of the Act, namely, the rights in trees, wells, abadi and buildings situate in various villages could alope be sold in execution of the decree. The Supreme Court held that the proprietary rights in Sir and Khudkasht land and grove land have vested in the State and what is conferred on the intermediary is a new right altogether which he never had and which could not, therefore, have been mortgaged in 1914. The court also held that the decree-holder could not enforce his rights under the mortgage by sale of the Bhumidhari rights created in favour of the judgment debtor under section 18 so far as his Sir and Khudkasht land and grove land are concerned, it can only follow the compensation money as provided in section 6 (h) of the Act. The argument that Bhumidhari rights could be followed as substituted security was also negatived. Rana Sheo Ambar Singh's case related to proprietary rights of an intermediary but applying the same reasoning this court has held in certain cases that the old tenancy rights ceased to exist after the enforcement of the Act and the tenants acquired new and distinct rights under the provisions of the Act. On the strength of these decisions it is possible for the appellant to contend that the view taken by this court in the second appeal referred to above was erroneous but it is not possible to contend further that the decree ultimately passed by this court was a nullity and could not be enforced. The question whether the suit for specific performance could be decreed after the enforcement of the Act was specifically raised before this court in the second appeal and was negatived on merits. That decision may be wrong but it became final between the parties and would operate as res judicata. The court had jurisdiction to decide that question and although it may have decided wrongly it would still be a decision of a competent court. The decree passed by this court could not be characterised as a nullity on the ground that it was erroneous in law. It is not open to the execution court to go behind that decree and refuse to execute it.
(3.) IT was next urged that as a result of consolidation proceedings in the village the plots which were the subject matter of the agreement have changed hands and the decree-holders are not entitled to claim possession over the plots which have now been included in the chak allotted to the judgment debtor. Reliance was placed on the decision of this court in Maliendra Nath v. Baikhunthi Devi 1976 (2) A.L.R. 21 (F.B.). In that case a Full Bench of this court held that a person who has got only a contract for sale or has got a decree for the specific performance of the contract, has got no interest in the land. He can only enforce the contract compelling the other side to execute the sale deed failing which the court might execute a Sale deed for the defendant, but the rights and liabilities under the contract do not attach to the land. The court further held that where the original plots included in the agreement have undergone a substantial change it will not be possible to enforce the agreement in respect of the substituted plots included in the chak. The view taken by this court in the aforesaid case is based on the decision of the Supreme Court in Satyabrats Ghose v. Mugneeram Bangur and Co. and another A.I.R. 1954 S.O. 44 wherein it was laid down that "a contract for sale of land does not of itself create any interest in the property which is the subject-matter of the contract. The obligations of the parties to a contract for sale of land are, therefore, the case as in other ordinary contracts and consequently the doctrine of frustration is applicable to contracts for sale of land in India.";