SHIVA SHANKAR RAI ALIAS SHIV SHANKAR RAI Vs. BABU JANARDAN RAI

JUDGEMENT

(1.) The suit by the plaintiff -appellant was for specific performance of contract for sale of lands based ' upon agreement which was executed by defendant on failure to return the mortgage money who has taken the same said lands in mortgage from the defendant much prior to the agreement for sale in question'

(2.) The defence was that the documents were forged and the facts pleaded in the point were untrue. The trial court found the agreement to be valid and decreed the suit. The lower appellate Court also concurred with the findings of the trial court on the question of validity and genuineness of the agreement for sale. However, the lower appellate court entertained a question of law raised on behalf of the defendant as to the agreement having been hit by Sec. 5 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act. He found it as a fact that the consolidation operation had started in the village in question in 1973 itself and discussed the authority reported in the case of and held that on the ratio laid down in that decision, the present contract being a contingent contract and not providing for consequences in case permission under Sec. 5 of the Consolidation Act was refused by the consolidation authorities. In that view, the lower appellate court held that the contract for sale was unenforceable in law.

(3.) In the present appeal, the substantial question of law raised by the plaintiff appellant is whether sanction contemplated under Sec. 5 be the Bihar Consolidation of Holdings and Prevention of Fragmentation Act will be required even in the case of mere agreement for sale.