Seth, J. - (1.) Shorn of all details, in this appeal, the moot question that requires first consideration, is as to whether the specific performance of the agreement for sale becomes impossible of performance or not by reason of the promulgation of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 1981 (1981 Act) during the pendency of the suit. The Vendor, admittedly, was a Thika Tenant. He agreed to sell the structure without the land to the plaintiff-respondent. The agreement having not been performed though the plaintiff was ready and willing, a suit for specific performance was instituted in 1974. Mr. Verma's client purported to have purchased a part of the property agreed to be sold subsequent to the alleged agreement between the Vendor and the plaintiff. But she did not contest the suit. Her application under Order 41 Rule 27 of the Code of Civil Procedure filed in this Court has been rejected. However, Mr. Verma had addressed the Court on pure question of law, as to the availability of specific performance of the agreement after the 1981 Act had come into force, Mr. Dey, appearing on behalf of the appellants, had elaborated the contention with regard to the proposition in law apart from the contentions with regard to the facts.
(2.) Mr. Roy Choudhury in his submission not only had addressed to the facts and pointed out that those were in favour of grant of decree for specific performance but also met the legal proposition as advanced by the respective counsel and pointed out that it was an agreement for sale of a structure without the land. The sale of the structure is not a transfer of the interest in Thika Tenancy. Therefore, it would not attract the mischief of Sections 6 and 7 of the 1981 Act. Having regard to the definition in Section 2(a) of 1981 Act defining 'Thika Tenant' Mr. Roy Choudhury contended that the mischief would have been attracted only in cases where the land is sought to be transferred or the structure together with the land is sought to be transferred. It would not be attracted in a case where the structure without the land is agreed to be transferred. According to him, the effect of 1981 Act would not render the agreement void if the mischief of the Act is not attracted because of absence of agreement to transfer any incidence in the land i.e., the Thika Tenancy. In such a case, there would be nothing to prevent the Court from granting decree for specific performance of the contract. If in law there appears to be any contravention, in that event, it would be a matter between the State and the purchaser or the Vendor as the case may be in which case the consequences prohibited for in the Act would come into play. He further contended that by reason of the purchase, the respondent-plaintiff may acquire some right, which is otherthan that of Thika Tenant since he is not acquiring any interest in the land by virtue of such purchase.
(3.) Mr. Verma and Mr. Dey, on the other hand, contended that the structure is an incidence of Thika Tenancy. The structure cannot stand without the land. The incidence of Thika Tenancy, namely, the structure being sought to be transferred, it squarely attracts the mischief of Sections 6 and 7 in order to render the agreement void and unenforceable debarring the Court from granting any decree.;