Sanjay Misra - (1.) HEARD Sri R. P. Dubey, learned counsel for the appellant and Sri Aditya Narain, learned counsel for the respondent.
(2.) THIS second appeal has been fled against the judgment and decree dated 13.4.2007, passed in Appeal No. 9 of 2006 by the Special District Judge (E. C. Act), Varanasi confirming the judgment and decree passed by the Civil Judge, Senior Division, Varanasi in Suit No. 1103 of 1997. The submission of learned counsel for the appellant is that the appellant had filed a Suit No. 760 of 1997, Ram Shankar v. Raja Ram, for permanent injunction restraining the defendant from interfering in the land in question. Raja Ram had filed a Suit No. 1103 of 1997, Raja Ram v. Rama Shankar for specific performance of the agreement of sale dated 6.5.1995. Both the suits were coupled together and decided by a common judgment of the trial court. According to learned counsel for the appellant the agreement of sale related to Chak No. 284 area 0.151 hectare and subsequent to the agreement of sale in consolidation proceedings the number of the plot was changed and the area was increased to 0.157 hectare and therefore, the agreement of sale could not be executed for the reasons of the rule of frustration. According to him the boundaries had changed and therefore, also the agreement of sale could not have been enforced at the instance of the respondents. He has placed reliance on a Full Bench decision in the case of Mahendra Nath and another v. Smt. Baikunthi Devi and others, AIR 1976 All 150. According to learned counsel for the respondent the agreement of sale related to Chak No. 284 (Arazi No. 297/13 area 0.070 hectare and Arazi No. 294 area 0.81 hectare) total area 0.151 hectare. After consolidation operation a new number was given to the plot which was numbered as Arazi No. 281 area 0.157 hectare. He states that the land was not changed nor the boundaries were changed only the area was increased by 0.006 hectare and the number was changed and therefore, the agreement of sale cannot be defeated by the rule of frustration since the property was identifiable in accordance with the agreement of sale. His further submission is that both the courts below have decreed the suit for specific performance of the agreement of sale and therefore, it cannot be said that the agreement of sale would include an area which is more than what was agreed to be sold.
(3.) FROM a perusal of the impugned judgment it will be seen that the submission made on behalf of the appellant was duly considered by the courts below and the courts below found that the land of Chak No. 284 consisted of two Arazis having total area 0.151 hectare and was allotted at the same spot and the boundaries as mentioned in the agreement of sale remained the same except that an area of 0.006 hectare was increased upon it being given a new number 281. Consequently both the courts below have found that the agreement of sale related to the land in suit and therefore, it could be enforced. Insofar as the suit for injucntion filed by Rama Shankar is concerned the same was dismissed by the courts below. In the Full Bench decision cited the circumstances were that a particular plot situate at a particular place was subject-matter of the agreement of sale. This particular plot was changed by allotment in proceedings under a statute and the owner was allotted land at another place. In a suit for specific performance it was held that he could not be compelled to purchase a plot at a different place which he had never contracted to purchase. In such circumstances the agreement of sale was hit by the rule of frustration and therefore, the contract could not be enforced and a decree based on such a contract could not be passed. It was also held by the Full Bench that an agreement of sale does not create any interest in the land unless a sale deed is executed. In the present case, the rule of frustration does not apply. The particular plot situate at a particular place was contracted to be sold and purchased. After the change of its number from 284 to 281 in consolidation proceeding the land continued to be at the particular place. Its situation remained the same for which agreement of sale had been executed. The change of number did not change the physical identity of the land. The boundaries remained the same except to the extent of 0.006 hectare. The excess area of 0.006 hectare upon change of number and upon allotment was not agreed to be sold or purchased. Hence, the area of 0.006 hectare of plot No. 281 is not subject-matter of the agreement of sale and no decree has been passed regarding that area. Since an agreement of sale does not create any 'interest' in land and it was not relating to the area 0.006 hectare, hence there is no issue involved in this case regarding the said area of 0.006 hectare.;