# Hublal v. Kalloo & Ors

- **Citation:** (2024) 2 ILRA 628
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-21
- **Case number:** Second Appeal No. 73 of 1993
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hublal-v-kalloo-ors-51450
- **Pages:** 5

## Headnote

Act, 1950 - Section 168-A The Allahabad
High Court held that Section 168-A of the Act,
1950, which prohibits transfer of fragmented
land in consolidated areas, does not apply to
agreements to sell, as they do not transfer title.
The appellate court erred in dismissing the suit
for specific performance by applying Section
168-A to the agreement dated 22.07.1986.
(Paras 6, 9, 12)

Effect of Deletion of Section 168-A Section
168-A was deleted by U.P. Act No. 27 of
2004, removing the embargo on executing sale
deeds for fragmented lan The court ruled that
the law prevalent at the time of decision applies,
allowing execution of the sale deed postdeletion without legal impediment, even for
agreements predating the amendment. (Paras
9, 11-12)

Specific Performance and Subsequent Vendee
The court upheld the appellant's right to specific
performance of the agreement to sell dated
22.07.1986, directing both the original vendor
(respondent no. 1) and subsequent vendee
(respondent no. 2) to execute the sale deed, as
established in precedents like Lala Durga Prasad
Vs Lal Deep Chand (1953) and Rathnavathi Vs
Kavita Ganashamdas (2015). (Paras 7, 13)

. Reversal of Appellate Court's Judgment The
first
appellate
court's
judgment
dated
13.10.1992, which set aside the trial court's
decree for specific performance, was held
erroneous and set aside. The trial court's decree
dated
24.12.1991
was
restored,
directing
execution of the sale deed within one month,
failing which the appellant could execute it
through the Civil Judge. (Para 13)

Cases Cited:

## Text

628 INDIAN LAW REPORTS ALLAHABAD SERIES
dated 29th March, 2023 issued under
Section 148 of the Act, 1961 for the
Assessment Year 2019-20 as also the
consequential
proceedings
undertaken
subsequent thereto cannot be sustained in
the eyes of law and, as such, the same are
quashed and the parties are relegated to the
stage of reply of notice under Section 148A(b)
of the Act dated 07.03.2023.

(27) Needless to say, the petitionercompany shall have an opportunity to file a
reply to the said show cause notice dated
07.03.2023 within a period of four weeks from
today and for that purposes, the Assessing
Officer shall provide necessary opportunity to
the petitioner for uploading the response of the
petitioner on the designated portal and
thereafter the Assessing officer shall pass an
order in terms of section 148A(d) of the Act.

(28) In view thereof, the writ petition
is partly allowed, subject to the aforesaid
terms and conditions. There shall be no
order as to cost.
----------
(2024) 2 ILRA 628
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Second Appeal No. 73 of 1993

Hublal ...Appellant
Versus
Kalloo & Ors. ...Respondents

Counsel for the Appellant:
B.K. Saxena

Counsel for the Respondents:
U.P. Zamindari Abolition & Land Reforms
Act, 1950 - Section 168-A The Allahabad
High Court held that Section 168-A of the Act,
1950, which prohibits transfer of fragmented
land in consolidated areas, does not apply to
agreements to sell, as they do not transfer title.
The appellate court erred in dismissing the suit
for specific performance by applying Section
168-A to the agreement dated 22.07.1986.
(Paras 6, 9, 12)

Effect of Deletion of Section 168-A Section
168-A was deleted by U.P. Act No. 27 of
2004, removing the embargo on executing sale
deeds for fragmented lan The court ruled that
the law prevalent at the time of decision applies,
allowing execution of the sale deed postdeletion without legal impediment, even for
agreements predating the amendment. (Paras
9, 11-12)

Specific Performance and Subsequent Vendee
The court upheld the appellant's right to specific
performance of the agreement to sell dated
22.07.1986, directing both the original vendor
(respondent no. 1) and subsequent vendee
(respondent no. 2) to execute the sale deed, as
established in precedents like Lala Durga Prasad
Vs Lal Deep Chand (1953) and Rathnavathi Vs
Kavita Ganashamdas (2015). (Paras 7, 13)

. Reversal of Appellate Court's Judgment The
first
appellate
court's
judgment
dated
13.10.1992, which set aside the trial court's
decree for specific performance, was held
erroneous and set aside. The trial court's decree
dated
24.12.1991
was
restored,
directing
execution of the sale deed within one month,
failing which the appellant could execute it
through the Civil Judge. (Para 13)

Cases Cited:

1. Ram Pratap Vs Gulab, Second Appeal No. 352
of 1993 (All HC, 25.07.2013) (Para 6)

2. Lala Durga Prasad Vs Lal Deep Chand, (1953)
2 SCC 509 (Para 7)

3. R. Chandiok Vs Chuni Lal Sabharwal, 1970
(3) SCC 140 (Para 7)
2 All. Hublal Vs. Kalloo & Ors.
629
4. Rathnavathi Vs Kavita Ganashamdas, (2015)
5 SCC 223 (Para 7)

5. U.O.I. Vs Indian Charge Chrome, (1999) 7
SCC 314 (Para 9)

6. New India Assurance Co. Lt Vs Padma,
2003 (7) SCC 713 (Para 11)

7. Yadlapati Vs Venkateswarlu, 1992 Supp 1
SCC 74 (Para 11)

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. Heard learned counsel for the
appellant.

2. Despite the service of notice, no
one appears on behalf of the respondents.

3. Present appeal has been filed
against the judgement and decree dated
13.10.1992 passed by the Court of 11th
Additional District Judge, Lucknow, in
Civil Appeal No.22/92, Sri Ram Versus
Hublal and another allowing the appeal
of the defendant/respondent no.2 and
dismissing
the
suit
for
specific
performance of a contract of the
plaintiff/appellant
vide
regular
suit
no.284/88 Hub Lal Versus Kalloo and
another dated 24.12.92 by the Court of
Munsif
Hawali,
Lucknow
on
the
following amongst others.

4. This second appeal was
admitted on the following substantial
question of law:

(1) Whether the learned Appellate
Court below has committed manifest error
of law in applying the provisions of
Section-168-A of Uttar Pradesh Zamindari
Abolition & Land Reforms Act, 1950
(hereinafter referred to as 'the Act, 1950')
to the facts of the case?
5. The crux of the matter is that a
registered agreement to sell was executed
by respondent no.1 in favour of the
appellant on 22.07.1986 regarding two
biswa land in Khasra No.671, VillageDehwa,
Post-Mohanlalganj,
DistrictLucknow, after taking advance money of
Rs.5,000/-,
remaining
Rs.1,000/-
was
payable at the time of execution of sale
deed. Despite repeated requests, respondent
no.1 did not execute the sale deed in
pursuance of the sale agreement dated
22.07.1986. Then, the appellant came to
know that respondent no.1 had executed the
sale deed dated 29.02.1988 in favour of
respondent no.2 regarding the entire land in
Khasra No.671. Thereafter, the appellant
had filed a suit no.284 of 1988 for specific
performance of an agreement to sell dated
22.07.1986 with a further prayer that both
the respondents may be directed to execute
the sale deed in pursuance of the agreement
to sell dated 22.07.1986. This suit was
decreed by judgment and decree dated
24.12.1991 in favour of the appellant.
Feeling aggrieved by the judgement dated
24.11.1991,
respondent
no.2,
the
subsequent vendee of respondent no.1, had
filed an appeal registered as appeal no.22
of 1992. The appellate Court allowed the
above
appeal
by
judgement
dated
13.10.1992 and judgement and decree
dated 24.11.1991 of Munsif Hawali,
Lucknow, was set aside on the ground that
the agreement to sell dated 22.07.1986, will
amount to fragmentation of the land, hence
violating Section-168-A of the Act, 1950,
is void. Feeling aggrieved by the above
judgement dated 13.10.1992, the present
second appeal was filed.

6. Learned counsel for the
appellant contends that Section 168-A of
the Act, 1950 applies to the transfer of land
through a sale deed, gift deed or exchange
630 INDIAN LAW REPORTS ALLAHABAD SERIES
and not on the agreement to sell. In support
of his contention, learned counsel for the
appellant has relied upon the judgement of
the coordinate Bench of this Court in
Second Appeal No.352 of 1993 (Ram
Pratap and Others Vs. Gulab) vide order
dated 25.07.2013. In that judgement, the
learned Single Judge observed that Section
168-A of the Act, 1950 would not apply to
the agreement to sell and further observed
that the provision of Section 168-A of the
Act, 1950 has been deleted by the UP
Amendment of 2004, therefore, there is no
bar for execution of sale deed as on date.

7. Learned counsel for the appellant
further submits that it is an established
legal position that after execution of the
agreement to sell, if the vendor transfers
the land to another person, then the vendor,
as well as the subsequent purchaser, will
have to join in executing the sale deed if a
suit for specific performance of the
agreement is allowed. In support of his
submission,
learned
counsel
for
the
appellant has relied upon the following
Apex Court judgements in Lala Durga
Prasad And Others Vs. Lal Deep Chand
And Others reported in (1953) 2 SCC
509; R.C. Chandiok And Another Vs.
Chuni
Lal
Sabharwal
and
Others
reported in 1970 (3) SCC 140 and;
Rathnavathi And Another Vs. Kavita
Ganashamdas reported in (2015) 5 SCC
223.

8. After considering the aforesaid
submission and on perusal of record, the
followings
facts
are
undisputed
that
respondent no.1 had executed registered
agreement to sell in favour of appellant on
22.07.1986 regarding two bigha of land in
Khasra No.671 and, subsequently, without
executing the sale deed of that part of the
land, respondent no.1 had executed a sale
deed dated 29.02.1988 in favour of the
respondent no.2 regarding entire land of
Khasra No.671. The sole question for
determination is whether rigour of Section
168-A of the Act, 1950 will come into play
for the agreement to sell part of land in
Khasra no.671, and further question arises
that once respondent no.1 had transferred
the entire land of Khasra No.671 through
sale deed dated 29.02.1988 in favour of
respondent no.2, then still the respondents
could have been directed to execute the sale
deed in specific performance of agreement
dated 22.07.1986 executed by respondent
no.1 in favour of the appellant. The
consequence of the violation of Section
168-A of the Act 1950 has been provided
under Sections 166 and 167 of the Act,
1950. For ready reference, Sections-166,
167 as well as Section 168-A of the Act,
1950 are being quoted as under :

"166.
Transfer
made
in
contravention of this Chapter to be void.
Any transfer made by or on behalf of
[bhumidhar with non-transferable rights]
or
asami
[in
contravention
of
the
provisions of this [Act] shall be void.

167.(1)
The
following
consequences shall ensue in respect of
every transfer which is void by virtue of
Section 166, namely-

(a) the subject-matter of transfer
shall with effect from the date of transfer,
be deemed to have vested in the State
Government free from all encumbrances;

(b) the trees, crops and wells
existing on the land on the date of transfer
shall, with effect from the said date, be
deemed to have vested in the State
Government free from all encumbrances;
and

(c) the transferee may remove
other moveable property or the materials of
any immovable property existing on such
2 All. Hublal Vs. Kalloo & Ors.
631
land on the date of transfer within such
time as may be prescribed.

(2) Where any land or other
property
has
vested
in
the
State
Government under sub-section (1), it shall
be lawful for the Collector to take over
possession over such land or other
property and to direct that any person
occupying such land or property be evicted
therefrom. For the purposes of taking over
such
possession
or
evicting
such
unauthorised occupants, the Collector may
use or cause to be used such force as may
be necessary.]

168-A. Transfer of fragments. -
Notwithstanding the provisions of any law
for the time being in force, no person shall
transfer whether by sale, gift or exchange
any fragment situate in a consolidated area
except where the transfer is in favour of
tenure-holder has a plot contiguous to the
fragment or where the transfer is not in
favour of any such tenure-holder [the
whole or so much of the plot in which the
person has bhumidhari rights, which
pertains to the fragment is thereby
transferred.]

(2) The transfer of any land
contrary to the provisions of sub-section
(1) shall be void.

(3) When a bhumidhar has made
any transfer in contravention of the
provisions of sub-section (1) the provisions
of Section 167 shall mutatis mutandis,
apply.]"

9. From the perusal of the above
sections, it is clear that where the title in
any fragment situated in a consolidated
area is transferred either by way of a sale
deed, by way of a gift deed or by way of
exchange, then Section 168-A of the Act,
1950 will apply but not on the agreement to
sell of a fragment of land because
agreement to sell to transfer a land does not
transfer the title. In the judgement of Ram
Pratap
and
Others
(supra),
the
coordinate Bench of this Court had
observed that Section 168-A of the Act,
1950 would not apply to the agreement to
sell to transfer the land because the
agreement transfers no title. It was also
observed in the above judgement that
Section 168-A of the Act, 1950 has already
been deleted. Therefore, there is no legal
impediment to executing the sale deed for
part of the land. Apex Court in the case of
Union of India & Others Vs. Indian
Charge Chrome & Another reported in
(1999) 7 SCC 314 has observed that law
prevalent on the date of decision will be
applicable.

10. Section 168-A of the Act, 1950
does not completely prohibit the transfer of
fragment of a land situated in consolidated
area. It prohibits only that transfer of
fragment of land where the vendee does not
have any land adjoining to the purchased
land. Therefore, Section 168-A of the Act,
1950 does not create or extinguish any right
regarding agreement to sell but it simply
imposed prohibition for execution of sale
deed where the purchaser does not have
any land adjoining to the fragmented part
of the land which is subject matter of sale
deed.

11. The Apex Court in the case of
The New India Assurance Company Ltd.
Vs. C. Padma & Another reported in 2003
(7) SCC 713 observed that benefit of
amended provision applicable on pending
cases, even though, a cause of action arose
prior to enforcement of amendment Act.
The Apex Cout in the case of Yadlapati
Vs. Venkateswarlu Vs. State of Andhra
Pradesh & Another reported in 1992
Supp 1 SCC 74 observed that amendment
in a statute must be read as if the word of
632 INDIAN LAW REPORTS ALLAHABAD SERIES
the amendment had been written into
principle act unless that leads to any
inconsistency. Therefore, on deletion of
Section 168-A of the Act, 2004 by the
amendment Act 27 of 2004, embargo
imposed under Section 168-A of the Act,
1950 on execution of a sale deed of
fragment of a land has been removed.
Therefore, sale deed in pursuance of
agreement to sell executed prior to deletion
of Section 168-A of the Act, 1950 can be
validly executed after deletion of Section
168-A of the Act, 1950, without any legal
impediment.

12. Based on the above analysis, this
Court holds that even if the agreement to
sell is executed regarding a fragment of
land in any consolidated area even then the
same will not be hit by Section 168-A of
the Act, 1950 because the agreement to sell
does not transfer the land but it is simply
the agreement between the parties to
transfer the same in future through
execution of sale deed. Though, Section
168-A of the Act, 1950 was deleted from
the Act, 1950, therefore, till the deletion of
this Section in 2004, no sale deed was
executed in pursuance of an agreement to
sell dated 22.07.1986. Now, if the direction
is made to execute the sale deed
considering the present law, there will be
no legal impediment based on deleted
Section 168-A of the Act, 1950. Even the
U.P. Act No.27 of 2004, by which Section
168-A of the Act 1950 was deleted from
the statute itself, permits regularising the
sale deed executed within a particular time
even before the deletion of Section 168-A
of the Act, 1950. Therefore, this Court
decides the substantial question of law
framed in this appeal in favour of the
appellant by holding that the appellate
Court has committed a manifest error of
law by applying Section 168-A of the Act,
1950 to the agreement to sell to transfer the
fragment of land in Khasra No.671.

13. Therefore, the judgement of the
first
appellate
Court
is
absolutely
erroneous, being contrary to the aforesaid
legal position. Hence, the order of the first
appellate Court dated 13.10.1992 is hereby
set aside, and the present appeal is allowed.
The order of the Munsif Hawali, Lucknow,
passed in Suit No.284 of 1988 is hereby
confirmed. Both the respondents are
directed to execute the sale deed in favour
of the appellant in pursuance of the
agreement to sell dated 22.07.1986 within a
period of one month, failing which the
appellant will be free to execute the sale
deed through the concerned Civil Judge.
----------
(2024) 2 ILRA 632
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2024

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

First Appeal From Order No. 52 of 2024

Indra Bahadur Yadav ...Appellant
Versus
Harkhas And Aam And Anr. ...Respondent

Counsel for the Appellant:
Ram Milan Yadav, Om Prakash Yadav

Counsel for the Respondents:

Civil Law - Indian Succession Act, 1925 -
Code of Civil Procedure,1908-Petition filed
u/s 278 of the Act-amendment applicationdismissed-impugned-challenged in Appeal-on
combine reading of Sectiontions 299 and 278 of
the Act, 1925- it is clear that contentious
proceeding u/s 278 of the Act, 1925 will proceed
as regular suit -appeal against any order,