KOTWAL, J. - (1.)THIS judgment will dispose of civil 1st. Appeal No. 42 of 1967 and Writ Petition No, 52 of 1976, as the decision of both these cases turns upon the validity of order dated 3.2.1976 passed in revision by the Financial Commissioner, declaring Dina Nath, Brij Mohan and Sant Ram, who as petitioners in the writ Petition and as respondents in the appeal, as non -agriculturists within the meaning of Sec. 6 of the Jammu and Kashmir Alienation of Land Act l99 , hereinafter to be referred to as the Act.
(2.)SAVITRI Devi (now dead), the appellant in the appeal and respondent in the writ petition, through her husband B. Udhey Chand, whom she had appointed as her general attorney, entered into an agreement to transfer proprietary rights in land measuring 46 kanals" and 15 marlas, mortgages rights in land measuring 22 kanals and lessees rights in land measuring 14 marlas, situated in village Batapura, Tehsil Khas, in favour of Dina Nath, Brij Mohan and Sant Ram, for a total consideration of Rs. 24000/ -by virtue of a written agreement executed on 18,11,1960. Out of this sum, Rs. 20,0OO - were paid to the vendors attorney at different times on or before the date of the aforesaid deal and the remaining sum, according to it, was to be paid at the time of registration of the sale deed, There being then a ban on transfer of agricultural land, an obligation was cast upon the vendor to obtain permission from the Government to effect transfer of the aforesaid land in favour of the vendees. This however, not having been done, and the ban too having been lifted in the mean time, the vender brought a suit for specific performance of the contract in the High Court on its original side.
(3.)THIS suit was defended by the vendor Sarswati Devi on the grounds: that she admittedly belonging to an agricultural class and the plaintiffs being khatris, a non -agricultural class declared under sec. 6 of the Act, the contract for sale could not be specifically performed that her attorney Bk. Unhey Chand had no authority to sell the land: that even if he had any such authority, his power of attorney had been cancelled by her before the executory sale came to be executed ; that no decree for specific performance could be passed in so far as mortgages or lessees rights in the land were concerned ; that the contract was vague and undertain ; and that there being in it a provision for awarding damages in the alternative, no decree for specific performance of the contract by executing a sale deed could be passed.
A number of issues were raised in the suit on which the parties led evidence