# Janki Smt. and another v. Murari Lal and others

- **Citation:** (2005) 3 ILRA 880
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-08-16
- **Case number:** Second Appeal No.2585 of 1974
- **Bench:** V.C. Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/janki-smt-and-another-v-murari-lal-and-others-40606
- **Pages:** 9

## Headnote

Sri K.N. Upadhyay
Sri M.C. Singh
Sri Mithlesh Kumar Tiwari
Sri Indra Shekhar Tripathi
Sri S.K. Upadhyay

U.P.Z.A. & L.R. Act-1951-Section 168-Aread with U.P.Z.A. & L.R. (Amendment)
Act 2004-Section 9 read with subsequent
amendment Act No. 13 of 2005-Section
4-by Sale deed dated 15-1-1969-transfer
of fragments deemed to have been
violdable-provided not enter in Revenue
record in favour of State-Transferees
may get validated such transfer after
depositing such fee-within the period as
notified by government.

Held: Para 6

In terms of the above said amendments
in the present case, the sale deed dated
15.1.1969 executed by Smt. Ganga Devi
in favour of Amar Singh and Murari Lal
being void under Section 168-A as it
stood before the commencement of the
Act 2004, was deemed to have been
voidable in terms of Section 11 of the
special provisions and further amended
by Act No.27 of 2004 by which Section
11 has also been omitted as it stood and
has been replaced by Section 4 of U. P.
Act No.13 of 2004, in terms of which the
alleged
sale
deed
dated
15.1.1969
alleged to have become void stands
voidable in the case of transfer of such
fragment, provided, it has not been
entered in the revenue records in favour
of the State Government, on the date of
the commencement of the U.P. Act No.27
of 2004 or U.P. Act No.13 of 2005 as the
case may be and such transferees may
get such transfer validated by depositing
such fee and within such time and in
such manner as may be notified by the
State Government. In view of the above
said
findings,
the
first
question
is
decided accordingly.

(B) Specific Relief Act 1963 S-16 (c) Suit
for Specific performance-No allegationregarding
willingness-suit
can
not
succeed-any
deposition
or
piece
of
evidence without pleading can not be
looked into-held suit not maintainable.

Held: Para 8

I have examined various paragraphs of
the plaint and fail to find any such
specific averments regarding willingness
to perform the contract in any of the
paragraphs. The lower appellate Court
has completely ignored the requirements
of Section 16 (c) of the Specific Relief
3 All] Smt. Janki and another V. Murari Lal and others
881
Act and as such in absence of the
mandatory requirements of Section 16
(c) of the Specific Relief Act regarding
necessary averments in the plaint and
the proof of the same regarding his
"willingness" to perform his part of
contract, neither any such deposition has
been made the suit cannot succeed. In
case such deposition would have been
made even then in absence of such
averments in the plaintiff's suit, it could
not be taken into account as it is the
plaint allegations, which are to be
proved by means of evidence. It is well
established rule that no amount of
evidence can be looked into unless there
is a pleading to that effect. The plaintiffs
have failed to make out any cause of
action with regards to the specific
performance of the alleged contract, the
specific performance of contract could
not be enforced in favour of the plaintiffs
and the suit thus being not maintainable,
ought to have been dismissed on this
count itself, even though the defendants
failed
to
take
any
objection.
The
appellate Court grossly erred in law in
decreeing the suit. The question no.2 is
decided in affirmative.
Case law discussed:
AIR 1978 Alld.-463
AIR 1974 Alld.-294
1969 (II) SCC-539

## Text

880 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
5. In view of what has been stated
above, it is clear that deciding an
application for amendment is deciding the
proceedings finally, therefore I am not in
agreement with the submission made by
learned counsel for the petitioner that
revision is not maintainable. My aforesaid
view is supported by the decision of the
Apex Court reported in 2003 (3) A.W.C.,
2198 (SC) - Shiv Shakti Co-operative
Housing Society, Nagpur Vs. Swaraj
Developers and others. In view of the
law laid down by the apex Court in the
case of Shiv Shakti (supra), this writ
petition has no force and is accordingly
dismissed.

 Petition Dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.08.2005

BEFORE
THE HON'BLE V.C. MISRA, J.

Second Appeal No.2585 of 1974

Janki Smt. and another
...Appellants
Versus
Murari Lal and others ...Respondents

Counsel for the Appellants:
Sri V.K.S. Chaudhary
Sri N.P. Singh
Km. Nand Prabha Shukla

Counsel for the Respondents:
Sri K.N. Upadhyay
Sri M.C. Singh
Sri Mithlesh Kumar Tiwari
Sri Indra Shekhar Tripathi
Sri S.K. Upadhyay

U.P.Z.A. & L.R. Act-1951-Section 168-Aread with U.P.Z.A. & L.R. (Amendment)
Act 2004-Section 9 read with subsequent
amendment Act No. 13 of 2005-Section
4-by Sale deed dated 15-1-1969-transfer
of fragments deemed to have been
violdable-provided not enter in Revenue
record in favour of State-Transferees
may get validated such transfer after
depositing such fee-within the period as
notified by government.

Held: Para 6

In terms of the above said amendments
in the present case, the sale deed dated
15.1.1969 executed by Smt. Ganga Devi
in favour of Amar Singh and Murari Lal
being void under Section 168-A as it
stood before the commencement of the
Act 2004, was deemed to have been
voidable in terms of Section 11 of the
special provisions and further amended
by Act No.27 of 2004 by which Section
11 has also been omitted as it stood and
has been replaced by Section 4 of U. P.
Act No.13 of 2004, in terms of which the
alleged
sale
deed
dated
15.1.1969
alleged to have become void stands
voidable in the case of transfer of such
fragment, provided, it has not been
entered in the revenue records in favour
of the State Government, on the date of
the commencement of the U.P. Act No.27
of 2004 or U.P. Act No.13 of 2005 as the
case may be and such transferees may
get such transfer validated by depositing
such fee and within such time and in
such manner as may be notified by the
State Government. In view of the above
said
findings,
the
first
question
is
decided accordingly.

(B) Specific Relief Act 1963 S-16 (c) Suit
for Specific performance-No allegationregarding
willingness-suit
can
not
succeed-any
deposition
or
piece
of
evidence without pleading can not be
looked into-held suit not maintainable.

Held: Para 8

I have examined various paragraphs of
the plaint and fail to find any such
specific averments regarding willingness
to perform the contract in any of the
paragraphs. The lower appellate Court
has completely ignored the requirements
of Section 16 (c) of the Specific Relief
3 All] Smt. Janki and another V. Murari Lal and others
881
Act and as such in absence of the
mandatory requirements of Section 16
(c) of the Specific Relief Act regarding
necessary averments in the plaint and
the proof of the same regarding his
"willingness" to perform his part of
contract, neither any such deposition has
been made the suit cannot succeed. In
case such deposition would have been
made even then in absence of such
averments in the plaintiff's suit, it could
not be taken into account as it is the
plaint allegations, which are to be
proved by means of evidence. It is well
established rule that no amount of
evidence can be looked into unless there
is a pleading to that effect. The plaintiffs
have failed to make out any cause of
action with regards to the specific
performance of the alleged contract, the
specific performance of contract could
not be enforced in favour of the plaintiffs
and the suit thus being not maintainable,
ought to have been dismissed on this
count itself, even though the defendants
failed
to
take
any
objection.
The
appellate Court grossly erred in law in
decreeing the suit. The question no.2 is
decided in affirmative.
Case law discussed:
AIR 1978 Alld.-463
AIR 1974 Alld.-294
1969 (II) SCC-539

(Delivered by Hon'ble V.C. Misra, J.)

Heard Shri V.K.S. Chaudhary Senior
Advocate assisted by Shri N.P. Singh
learned
counsel
for
the
appellantsdefendants and Shri Mithlesh Kumar
Tiwari and Shri Kharak Singh learned
counsel for the respondents.

1. This second appeal arises out of
the judgment and decree dated 24.8.1974
passed
by
the
District
Judge,
Bulandshashr in Civil Appeal No.314 of
1971 Murari Lal and others Vs. Smt.
Janki and others arising out of Original
Suit No.191 of 1969 between Murari Lal
and others Vs. Smt. Ganga Devi and
others, and also challenging the findings
dated 24.3.1982 passed by the District
Judge in the lower appellate Court.

2. The case of the appellant in brief
is that Khazan Singh (husband of Smt.
Ganga Devi defendant no.1), Chiranji
defendant no.2 and Fatte (husband of Smt.
Janki defendant no.3) were 3 real
brothers. The dispute between Smt.
Ganga Devi and Chiranji and Fatte
(deceased) substituted by her legal heir
Smt. Janki, arose on the allegation that
Smt. Ganga Devi had remarried and lost
all rights and title in the land in
accordance with the provisions of Section
172 of U.P. Zamindari Abolition and
Land
Reforms
Act
No.1
of
1951
(hereinafter referred to in short as the Act)
although it was held by the revenue Court
that though she was living with another
person but no case of remarriage could be
proved and she continued to be the tenure
holder. Due to the dispute during
consolidation proceedings in the area
between the above said three co-tenure
holders, the proposed Chaks of three
branches were numbered as 89-A, 89-B
and 89-C at one place. Plot no.89-C (in
question) was proposed for Smt. Ganga
Devi, which consisted of two parts, one
the Bhumidhari portion of 4-14-13 bighas
and another Sirdhari portion as 2-18-11
Bighas, total being 7-15-4 bighas. Smt.
Ganga Devi allegedly deposited ten times
rent for the Sirdhari plots of area 2-18-11
part of the plot no.89-C on 15.1.1969 and
accordingly became Bhumidhar of the
entire plot no.89-C consisting of total area
of 7-15-4 bighas. On same date, i.e.,
15.1.1969 Smt. Ganga Devi allegedly sold
her part of plot no.89-C admeasuring 218-11 bighas in favour of Murari Lal
plaintiff no.1 and Amar Singh plaintiff
882 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
no.2 both sons of one Ganga Sahai who
was the Pairokar of Smt. Ganga Devi. On
15.1.1969, Smt. Ganga Devi also sold an
area of 0-13-19 in favour of one Dulli
alleged to be the servant of Ganga Sahai
in separate plot no.765. It is alleged that
on 12.3.1969 Smt. Ganga Devi entered
into an agreement to sell, part of the
agricultural land situated in plots nos.89C and 725-C in favour of Murari Lal and
others
(sons
of
Ganga
Sahai)
for
Rs.9,000/-. This execution of unregistered
agreement was disputed by the appellantsdefendants alleged to have been forged
and not duly executed by her in
accordance with law. It has also been
alleged that she leased out her rest of the
land to Ganga Sahai. On 2.6.1969, Smt.
Ganga Devi admittedly sold her entire
plots to Chiranji and Fatte (husband of
Smt. Janki Devi-appellant-defendant).

3. Murari Lal and others (sons of
Ganga Sahai) respondents-plaintiffs on
31.10.1969 filed an Original Suit No.191
of 1969 in the Court of Civil Judge for
specific
performance
of
contract
regarding
land
admeasuring
4-14-13
bighas part of agricultural plot no.89-C
and 0-8-0 of plot no.725. In para-7 of the
plaint, it has been stated that Smt. Ganga
Devi-defendant no.1 had entered into a
written agreement dated 12.3.1969 for
sale of the said land and have received a
sum of Rs.5,100/- in advance and only an
amount
of
Rs.3,900/-
remained
in
balance. In Para-9 of the plaint it has been
stated that the plaintiff is ready to pay the
balance amount of Rs.3,900/- and has
always been ready and the sale deed may
be executed on the basis of the said
agreement. In para-10 it has been stated
that the cause of action arose on
12.3.1969 the date of execution of the
agreement of sale by defendant no.1 in
favour of plaintiffs and thereafter on
2.6.1969 the date of the execution of sale
deed by the defendant no.1 in favour of
defendants no.2 and 3. In the written
statement filed by defendants no.2 and 3,
in paragraphs 4,5 and 6 objections were
raised in terms with the provisions of
Section 168-A of the U.P. Zamindari
Abolition and Land Reforms Act, which
reads as under: -

"168-A. Transfer of fragments.- (1)
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 who
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."

The Additional Civil Judge vide
order dated 22.9.1971, dismissed the
Original Suit No.191 of 1969 filed by
Murari Lal and others for specific
performance of contract. The District
Judge vide its order dated 24.8.1974
passed in Civil Appeal No.314 of 1971
allowed the appeal of Murari Lal and
others with costs, holding, inter-alia, that
the
contesting
defendants-respondents
3 All] Smt. Janki and another V. Murari Lal and others
883
(now appellants) had full knowledge of
the agreement to sell before the execution
of the sale deed dated 2.6.1969 in their
favour and, therefore, were not bonafide
purchasers for value without notice and
were thus not entitled to any protection
under Section 41 of the Transfer of
Property Act wrongly held by the lower
Court which had no application to the
present case of specific performance of
contract and the agreement to sell could
be specifically enforced against all the
defendants. It decreed the Original Suit
No.191 of 1969 of Murari Lal and others
for specific performance of contract. Two
months'
time
was
granted
to
the
defendants to execute the sale deed in
terms of the said agreement. Since, the
appellate Court had not decided the effect
of Section 168-A of the U.P. Zamindari
Abolition of Land Reforms Act raised by
the defendants nos.2 and 3 and also dealt
with in the Judgment passed by the lower
appellate Court. This Court (Hon'ble K.M.
Dayal, J.), vide order dated 30th of July
1981 framed the following issue and
remitted to the lower appellate Court for
decision:-

"Whether
the
sale
deed
dated
15.3.1969
(corrected
as
15.1.1969)
executed by Smt. Ganga Devi in favour of
Dulli and Amar Singh was valid in view
of Section 168-A of the U.P.Z.A. & L.R.
Act, if so its effect?"

The lower appellate Court allowed
the parties to adduce necessary evidence
in respect with the referred issue, the
plaintiffs did not lead any evidence,
however the defendants filed papers and
led their evidence and recalled one
Chiranji Lal defendant no.2 for reexamination. The lower appellate Court
after hearing the parties vide its order
dated 24.3.1982 decided the issue in
affirmative assigning its reason, and
submitted the same before this Court. The
appellants filed their objections to the
above said findings of the lower appellate
Court and while challenging the same
raised three further grounds.

An Original Suit No.277 of 1969 was
filed on dated 26.6.1969 in the Court of
Munsif by Ganga Sahai father of plaintiffs
against Chiranji and others for injunction
restraining the defendants from interfering
with his alleged possession as sub tenant
over the alleged leased out portion of the
plot no.84-C in his favour. The Original
Suit No.277 of 1969 was dismissed by the
Court
of
Munsif
vide
order-dated
22.5.1972. Thereafter vide order dated
18.1.1973,
the
District
Judge
also
dismissed the appeal of Ganga Sahai
holding inter-alia, that the transfer of
Ganga Sahai and Dulli was void being hit
by Section 168-A of the Act. The Sub
Divisional Magistrate in the proceedings
under Section 145 Cr. P.C. at the instance
of Amar Singh son of Murari Lalrespondents Vide order-dated 22.12.1969
upheld the possession of Chiranji and
Fatte and directed Murari Lal and others
not to disturb the possession of Chiranji
and Fatte. The matter came up before this
Court and vide order dated 15.11.1972 it
held Chiranji and Fatte to be in possession
of the land in question under Section 145
Cr. P.C. and confirmed the orders of the
lower Courts.

4. Learned counsel for the appellants
has also submitted that the alleged
contract of sale executed by Smt. Ganga
Devi is a forged and fabricated document
as per the statement of one Laxmi Kant
attesting witness and also on the face of
the record, as there is irregular spacing of
884 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
the typed contents and specially the last
line having been typed without any
spacing since the alleged thumb of Smt.
Ganga Devi existed on the said blank
paper on which the alleged contract of
sale has been typed out, though after the
thumb impression, there was still ample
of space left at the bottom of the page and
the finding by the learned District Judge
that it was so done to confine the deed to
a single sheet is contrary to what is
apparent on the face of the document and
without any evidence. It is based on mere
surmises and conjectures, and more so,
this document does not contain the name
of the deed writer and typist and has not
been signed by the witness at the margin
which is customary, but signed at the
bottom of the document. It has also been
submitted that Ganga Sahai father of the
plaintiffs-respondents was doing pairvi on
her behalf before the Consolidation Court,
and he appears to have procured her
thumb impression on blank papers and
that her written statement in another case
was inadmissible as evidence, as such,
against the defendant-appellant since
neither she was examined nor she entered
in the witness box nor any affidavit was
filed by her. She never came to the Court
and even the said written statement was
filed through her counsel. He has referred
to Section 18 of the Evidence Act, which
refers that the statement made by the
persons
referred
to
therein,
are
admissions, if they are made during the
continuance of the interest of the persons
making the statement. Her statement
contained in the written statement was
made after she had sold and parted with
her whole property and had no proprietary
interest left therein, thus, her statement
made after parting her proprietary interest
was not admissible against the defendantappellant and the learned lower appellate
court has grossly erred in relying upon the
same. No compelling reasons existed for
the lower appellate court to upset the
judgment and decree of the trial Court
with regard to the defendant being
bonafide purchaser for value without
notice of the contract. In fact, contract did
not exist at that time and the suit was filed
only after Smt. Ganga Devi had sold the
property in favour of the appellants.
Learned counsel for the appellants has
further stressed that the Consolidation of
Holding Rules are not applicable in the
present case.

The
learned
counsel
for
the
appellants has further submitted that at the
time when the appeal had been filed in
1974 the necessary amendments in
Section 100 of the Code of Civil
Procedure had not been made and
therefore, no substantial question was
required to be framed by the Court while
admitting the appeal, more so, in terms of
the saving clause Section 97 (2) clause
(m) in the Central Act 104 of 1976.
However, in my view the following
substantial questions of law arise from the
pleadings for consideration by this Court:-

(1) Whether
by
sale
deed
dated
15.1.1969 of a part of Plot no.89-C
by Smt. Ganga Devi in favour of
Amar Singh and Murari Lal which
was of a transfer of a fragment in a
consolidation area was thus void in
terms of the provisions of Section
168-A of the Principal Act, and thus
rendering the decree for specific
performance of contract of sale and
transfer of the other remaining
fragment of Plot No.89-C as
illegal?
3 All] Smt. Janki and another V. Murari Lal and others
885
(2) Whether in the absence of the
averments made in the plaint that
the plaintiff had been and was still
"ready and willing" to perform the
essential terms of the alleged
agreement
which
was
to
be
performed by him in terms of clause
(c) of Section 16 of the Specific
Relief Act, 1963 and Form-48 given
in Appendix 'A' of the Order 48
Rule 3 of the Code of Civil
Procedure, the plaint ought to have
been dismissed?

Learned counsel for the respondents
has submitted that no substantial question
of law arises from the pleadings of the
case and, therefore, in terms of the
decisions delivered by this Court in the
case of Deena Nath Vs. Sreedhar Dayal
Pathak and another reported in 2003 (2)
AWC, page 1002, the appeal deserves to
be dismissed.

5. Heard learned counsel for the
parties at length and looked into the
record of the case and find that, it is not
disputed that plot no.89-C (in question)
falling in the share of Smt. Ganga Devi
consisted of two parts, one bhumidhari
and the other sirdhari portion. After
deposit of the ten times of the rent for the
sirdhari plot, she became bhumidhar of
entire plot no.89-C consisting of total area
of 7-15-4 bighas on 15.1.1969 she sold a
part of the plot in favour of Murari Lal
and Amar Singh, plaintiffs no.1 and 2.
The sale deed dated 15.1.1969 executed
by Smt. Ganga Devi transferring a part of
plot No.89-C in a consolidation area
admeasuring 2-18-11 in favour of Murari
Lal and Amar Singh being a fragment of
the total area of the Bhumidhari land
admeasuring 7-15-4 bighas was barred
under the provisions of Section 168-A (I)
of the Principal Act which had an overridding effect and the said transfer
through the alleged sale deed dated
15.1.1969 stood void in terms of the
provisions of Sub clause (2) of Section
168-A of the Principal Act on the date of
the alleged transfer. However, the Court
also finds that the Act No.1 of 1951 has
been subsequently amended by U.P. Act
No.27 of 2004. It received the assent of
the Governor on 20.8.2004 and was
published
in
the
U.P.
Gazette
on
23.8.2004. One of the objects and reasons
for amendment was with a view to
safeguard the interest of tenure holders by
"omitting
the
provision
relating
to
restriction of transfer of fragments to
avoid its adverse effect."

Section 4 of the Uttar Pradesh
Zamindari Abolition and Land Reforms
(Amendment) Act, 2004 reads as under:-

4. Omission of Section 168-A.-
Section 168-A of the principal Act shall
be omitted.

Section 11 of the Uttar Pradesh
Zamindari Abolition and Land Reforms
(Amendment) Act, 2004 reads as under:-

11. Special Provisions- It is hereby
declared that any transfer of a fragment
which had become void under Section
168-A
as
it
stood
before
the
commencement of this Act shall be
deemed to have been voidable (sic) and
any person may get such transfer
validated by depositing such fee and
within such time and in such manner as
may be notified by the State Government:

Provided that the above provisions
shall cease to be in force after expiry of
886 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
one year from the date of commencement
of this Act.

However,
again
a
subsequent
amendment Act (U.P. Act No.13 of
2005), which received the assent of the
Governor on March 24, 2005 and
published in U.P. gazette on 29th March
2005 was brought in effect.

Section 4 of the Uttar Pradesh
Zamindari Abolition and Land Reforms
(Amendment) Act, 2005 reads as under:-

4. Special provision -

(1) It is hereby declared that any
transfer of such fragment as had become
void under Section 168-A as it stood
before the commencement of the Uttar
Pradesh Zamindari Abolition and Land
Reforms (Amendment) Act, 2004 (U.P.
Act No.27 of 2004) and had not been
entered in revenue records in favour of
State Government shall be deemed to
have been voidable and any person may
get such transfer validated by depositing
such fee and within such time and in such
manner as may be notified by the State
Government :

Provided that the provisions of this
sub section shall cease to be in force after
expiry of one year from the date of
commencement of this Act.

(2) Section 11 of the Uttar Pradesh
Zamindari Abolition and Land Reforms
(Amendment) Act, 2004 (U.P. Act No.27
of 2004) shall be omitted.

6. In terms of the above said
amendments in the present case, the sale
deed dated 15.1.1969 executed by Smt.
Ganga Devi in favour of Amar Singh and
Murari Lal being void under Section 168A as it stood before the commencement of
the Act 2004, was deemed to have been
voidable in terms of Section 11 of the
special provisions and further amended by
Act No.27 of 2004 by which Section 11
has also been omitted as it stood and has
been replaced by Section 4 of U. P. Act
No.13 of 2004, in terms of which the
alleged sale deed dated 15.1.1969 alleged
to have become void stands voidable in
the case of transfer of such fragment,
provided, it has not been entered in the
revenue records in favour of the State
Government,
on
the
date
of
the
commencement of the U.P. Act No.27 of
2004 or U.P. Act No.13 of 2005 as the
case may be and such transferees may get
such transfer validated by depositing such
fee and within such time and in such
manner as may be notified by the State
Government. In view of the above said
findings, the first question is decided
accordingly.

7. On the second question this Court
finds from the record of the case that the
important
ingredient
in
the
plaint
regarding
plaintiff's
'willingness'
to
perform the essential terms of contract in
terms of the provisions of Section 16 (c)
of the Specific Relief Act, 1963 and also
as prescribed in the form given in
appendix 'A' Forms 47 and 48, in terms of
Order 48 Rule 3 of the Code of Civil
Procedure is missing. The relevant part of
Section 16 (c) of Specific Relief Act is
quoted below:-

16. Personal bars to relief.-Specific
performance of a contract cannot be
enforced in favour of a person -

(a) .......
(b) .......
3 All] Smt. Janki and another V. Murari Lal and others
887
(c) who fails to aver and prove that he has
performed or has always been ready and
willing to perform the essential terms of
the contract which are to be performed by
him, other than terms the performance of
which has been prevented or waived by
the defendant.
Explanation-For the purposes of
clause (c),-
(i) where a contract involves the
payment of money, it is not essential for
the plaintiff to actually tender to the
defendant or to deposit in court any
money except when so directed by the
court;
(ii)
the
plaintiff
must
aver
performance
of,
or
readiness
and
willingness to perform, the contract
according to its true construction.

In this respect law is settled. There
are
catena
of
decisions
including
Mahmood Khan and another Vs. Ayub
Khan and others reported in AIR 1978
(Alld.) page 463 and Rajendra Prasad Vs.
Raj Deo reported in AIR 1974 (Alld.)
page 294. It has been held in the case of
Ouseph Verghese Vs. Joseph Aley and
others reported in (1969) Vol.2 SCC
page- 539. The relevant portion of para-9
of the said Judgment is quoted below:-

".................The plaintiff did not
plead either in the plaint or at any
subsequent stage that he was ready and
willing to perform the agreement pleaded
in the written statement of defendant. A
suit for specific performance has to
conform to the requirements prescribed in
Forms 47 and 48 of the 1st Schedule in
the Civil Procedure Code. In a suit for
specific performance it is incumbent on
the plaintiff not only to set out agreement
on the basis of which he sues in all its
details, he must go further and plead that
he
has
applied
to
the
defendant
specifically to perform the agreement
pleaded by him but the defendant has not
done so. He must further plead that he has
been and is still ready and willing to
specifically perform his part of the
agreement. Neither in the plaint nor at any
subsequent stage of the suit the plaintiff
has taken those pleas. As observed by this
Court in Pt. Prem Rai Vs. The DLF
Housing
and
Construction
(Private
Limited) and another, (Civil Appeal
No.37/66, decided on 4.4.1968) that it is
well settled that in a suit for specific
performance the plaintiff should allege
that he is ready and willing to perform his
part of the contract and in the absence of
such an allegation the suit is not
maintainable."

8.

I
have
examined
various
paragraphs of the plaint and fail to find
any such specific averments regarding
willingness to perform the contract in any
of the paragraphs. The lower appellate
Court
has
completely
ignored
the
requirements of Section 16 (c) of the
Specific Relief Act and as such in absence
of the mandatory requirements of Section
16 (c) of the Specific Relief Act regarding
necessary averments in the plaint and the
proof
of
the
same
regarding
his
"willingness" to perform his part of
contract, neither any such deposition has
been made the suit cannot succeed. In
case such deposition would have been
made even then in absence of such
averments in the plaintiff's suit, it could
not be taken into account as it is the plaint
allegations, which are to be proved by
means of evidence. It is well established
rule that no amount of evidence can be
looked into unless there is a pleading to
that effect. The plaintiffs have failed to
make out any cause of action with regards
888 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
to the specific performance of the alleged
contract, the specific performance of
contract could not be enforced in favour
of the plaintiffs and the suit thus being not
maintainable,
ought
to
have
been
dismissed on this count itself, even
though the defendants failed to take any
objection. The appellate Court grossly
erred in law in decreeing the suit. The
question no.2 is decided in affirmative.

Under the above said facts and
circumstances of the case, the Judgment
and decree dated 24.8.1974 passed by the
District Judge, Bulandshahar in Civil
Appeal No.314 of 1971 Murari Lal and
others Vs. Smt. Janki and others is set
aside and the Judgment and decree dated
22.9.1971 of the trial Court passed in
Original Suit No.191 of 1969 between
Murari Lal and others Vs. Smt. Ganga
Devi and others is upheld. Appeal is
allowed. No order as to costs.

 Appeal Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.08.2005

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No. 22242 of 2002

Kailash and another
 ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.N. Singh
Sri Sharad Malviya
Sri R.K. Vidhyarthi
Sri G.K. Singh
Sri V.K. Singh

Counsel for the Respondents:
S.C.

U.P. Urban Land (Ceiling & Regulation)
Act-1976-S-10 (5), 10 (6)- readwith
Urban Land (Ceiling and Regulation)
repeal
Act
199-Section
3
and
4Possession of surplus land-service of
Notice u/s 10 (5) to the co-sharer of
land-order-held-not
proper
serviceactual physical possession-special officer
categorically
speaks
that
no
actual
Physical possession taken by statedispite
of
opportunity
no
contrary
material brought before the Court-mere
mutation of name does not confer, any
title-land cannot be vested with statenor utilized held-land is free from any
requisition or acquision.

Held: Para 5,7,8 & 9

The law under Section 10 (5) of the Act
is crystal clear that notice in writing is to
be given to surrender or deliver the
possession and if any body refuses or
fails to comply, the authority may take
possession of the vacant land under
Section 10 (6) of the Act. From the
record we find that only a notice under
Sub-section 5 was received by one
"Bachchan
Lal".
According
to
the
petitioners he has no authority to receive
the notice. Even if a co-sharer can not
affect the right of the others in receiving
such notice. In any event notice under
the principal Act upon one "Bachchan
Lal" can not help the cause of the
respondents at present.

The obvious inference is that when
vesting
of
land
is
lifted
by
the
evaporation of law and the land under
vesting has not been utilised for any
purpose save and except putting sign
board, if any, to show that it was earlier
vested under the Principal Act, can not
be held by the State.

Hence, as per the interpretation of this
Court in this matter as well as in the
earlier occasion and having discussion on