# Ram Pratap and Ors v. Gulab

- **Citation:** (2013) 2 ILRA 909
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-25
- **Case number:** Second Appeal No.352 of 1993
- **Bench:** Saeed-Uz-Zaman Siddiqi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-pratap-and-ors-v-gulab-42645
- **Pages:** 7

## Headnote

C.P.C. Section-100- Second Appeal suit
for specific performance decreed by Trial
Court first appellate court dismissed suit
on
ground
of

transaction
being
contravention of Section 168-A-direction
for refund of earnest money with 12%
interest per annum-at Second appeal
stage-suit was rightly dismissed by first
appellate Court but, when second appeal
is going to be decided-existing provision
shall be considered-accordingly when by
U.P. Amendment Act no 27 of 2004provision of Section 168-A shall ceased
to operate after expiry of 2 years-suit
liable to decreed question decided in
favor of appellant-appeal allowed.

Held: Para-13
In the above mentioned case the sale
deed had been executed and in the
instant case before this Court the sale
deed is to be executed. Learned First
Appellate Court has decided the matter
in accordance with law as applicable on
the date of decision. But, this Court has
decided the second appeal as on today
when Section 168-A is no more in force
and, as such, the discretion to decree the
suit by specific performance of contract
cannot
be
legally
denied
to
the
plaintiffs/appellants. As of now, there is
910 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
no impediment, obstacle or defect in
execution of sale deed by its executor in
favor of the person in whose favour
agreement has already been executed
long back.

Case Law discussed:
(1991) 2 SCC 236; Second Appeal No. 845 of
2011; Writ C No. 14489 of 2008; (2000) 2 SCC
536; (1999) 7 SCC 314; [2007 (2) AWC 1327];
(2000) 2 SCC 536; (1999) 7 SCC 314; [2007
(2) AWC 1327]; Writ C No. 2785 of 1985.

## Text

2 All] Ram Pratap and Ors. Vs. Gulab
909
as a juvenile in conflict with law, and the law
applicable to juvenile may not be applicable
to such a victim of the offence. We have also
noted at some earlier occasions that even a
child had its rights internationally recognized
which
as
per
cultural
heritage
and
constitutional provisions inherently assumed
the character of fundamental rights of a child
and no Court could have the authority to
encroach upon those rights of a child. If at all
any offence is constituted by facts, no law
could justify the dentention of such a victim
if there is a dispute of custody of the victim.

...................On account of being a citizen
of India, she could have enjoyed the
fundamental rights and move in whatever
direction she desired if that movement was not
detrimental to the Constitutional provision and
national security."

29. In view of the above decision, it is
apparent that detention of Shalu Mishra in
Naari Niketan, despite her objection, merely
on the ground that according to High School
certificate she is less than 18 years although
medical report suggested her age to be 19
years, cannot be treated as legal. Sessions
Judge has himself while making transitory
arrangement observed that his order shall be
subject to the decision of this writ petition.

30. Taking into consideration the
marriage certificate, educational certificate,
medical reports regarding age and her
categorical statement, this Court is of the
opinion that this petition deserves to be
allowed.

31. Petition is allowed.

32.

Superintendent,
Government
Protective Home, Lucknow is directed to set
Shalu Mishra free to go with Sunil Mishra.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.07.2013

BEFORE
THE HON'BLE SAEED-UZ-ZAMAN SIDDIQI, J.

Second Appeal No.352 of 1993

Ram Pratap and Ors.

...Appellants
Versus
Gulab

 ...Respondent

Counsel for the Appellant:
Sri S.K. Srivastava, Sri A.D.R. Srivastava
Dr. L.P. Mishra

Counsel for the Respondents:
Nazim Ali Siddiqi

C.P.C. Section-100- Second Appeal suit
for specific performance decreed by Trial
Court first appellate court dismissed suit
on
ground
of

transaction
being
contravention of Section 168-A-direction
for refund of earnest money with 12%
interest per annum-at Second appeal
stage-suit was rightly dismissed by first
appellate Court but, when second appeal
is going to be decided-existing provision
shall be considered-accordingly when by
U.P. Amendment Act no 27 of 2004provision of Section 168-A shall ceased
to operate after expiry of 2 years-suit
liable to decreed question decided in
favor of appellant-appeal allowed.

Held: Para-13
In the above mentioned case the sale
deed had been executed and in the
instant case before this Court the sale
deed is to be executed. Learned First
Appellate Court has decided the matter
in accordance with law as applicable on
the date of decision. But, this Court has
decided the second appeal as on today
when Section 168-A is no more in force
and, as such, the discretion to decree the
suit by specific performance of contract
cannot
be
legally
denied
to
the
plaintiffs/appellants. As of now, there is
910 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
no impediment, obstacle or defect in
execution of sale deed by its executor in
favor of the person in whose favour
agreement has already been executed
long back.

Case Law discussed:
(1991) 2 SCC 236; Second Appeal No. 845 of
2011; Writ C No. 14489 of 2008; (2000) 2 SCC
536; (1999) 7 SCC 314; [2007 (2) AWC 1327];
(2000) 2 SCC 536; (1999) 7 SCC 314; [2007
(2) AWC 1327]; Writ C No. 2785 of 1985.

(Delivered by Hon'ble Saeed-Uz-Zaman
Siddiqi, J.)

1. The instant second appeal has
been preferred against the judgment and
decree dated 01.10.1993, passed by
learned First Additional Civil Judge,
Bahraich, in Civil Appeal No.2 of 1991,
by which the Regular Civil Appeal was
allowed and the judgment and decree
dated 18.11.1989, passed by learned Vth
Additional Munsif, Bahraich, in Original
Suit No.135 of 1985 has been set aside.

2. Brief facts of the case are that the
appellants
filed
suit
for
specific
performance of contract relating to plot
no.177/178 situated in Village Majhaw,
Pargana Dharamapur, Tehsil Nanpara,
District Bahraich, of which the defendant
was bhumidhar. The said land was
purchased by the defendant in auction
from Cooperative Department vide sale
deed dated 26.3.1982. At the time of
purchase the defendant has obtained
Rs.1500/- from the plaintiffs on the
condition that he shall execute the sale
deed of one acre of land so purchased in
favour of the plaintiffs and registered
agreement dated 26.3.1982 was executed
between the parties. In furtherance of the
execution of sale deed the defendant has
delivered possession over one acre of land
to the plaintiff and, as such, the defendant
is bound to execute the sale-deed for
which the plaintiffs have already been
ready and are ready to perform their part
of contract. Since the defendant did not
execute the sale-deed. Hence, the suit was
filed. The defendant has admitted that he
has purchased the disputed property in
public auction in the year 1981 and the
sale-deed in favour of the defendant was
executed on 26.03.1982. But, it has been
pleaded that the defendant is an illiterate
person and he has accompanied the
plaintiffs as witnesses, who got the
fictitious agreement executed which came
to notice of the defendant, when he
received the notice sent by the counsel for
the plaintiffs; the defendants are not in
possession over the disputed property and,
as such, the suit is barred by Section 34 of
the Specific Relief Act. In the replication,
the plaintiffs have alleged that the
defendant is an illiterate person. In view
of the pleadings of the parties, the learned
Trial Court framed issues, the parties led
their evidence. After conclusion of
hearing, the learned Trial Court decreed
the plaintiffs' suit and the defendant was
directed to execute the sale-deed in favour
of the plaintiffs within two months. The
defendant preferred the Civil Appeal No.
02 of 1991. Learned First Appellate Court
has re-assessed the evidence in a detailed
manner and has concurred with the
findings of the learned Trial Court which
have not been challenged before this
Court as on point of facts, there is no
dispute between the parties.

3. The learned First Appellate Court
has held that by directing the decree for
specific performance of Contract, there
has been violation of law as provided
under Section 168 (A) of U.P.Z.A. & L.R.
Act and, as such, it has dismissed the suit
for specific performance of contract and
2 All] Ram Pratap and Ors. Vs. Gulab
911
has decreed the suit for refund of earnest
money together with interest at the rate of
12 per cent per annum. Aggrieved by the
aforesaid decree, the plaintiffs have
preferred this appeal.

4. During the course of appeal,
appellant Nos. 2 & 3 have died and their
heirs have been substituted. The appeal
was admitted vide order dated 10.11.1993
on substantial question No. 1, which is as
under:-

" 1. Whether has the learned Lower
Appellate Court committed an illegality in
allowing the defendant's appeal by
holding that the purported sale shall be
violative of Section 168-A of the
U.P.Z.A. & L.R. Act without taking into
consideration that the said provision is not
attracted in the matter of compulsory sale
and is only applicable in the matter of
voluntary sale ?"

5. I have heard learned counsel for
the parties and have gone through the
records.

6. Admitted factual position is that
the parties have entered into an agreement
to sell, which has been concurrently held
by both the courts below as proved and
final. The learned First Appellate Court
has exercised its discretion not to direct
Specific Performance and instead directed
to refund of the earnest money together
with interest at the rate of 12 per cent per
annum on the ground that decreeing
specific performance shall be violative of
Section 168 (A) of U.P.Z.A. & L.R. Act,
which has been omitted by U.P. Act No.
27 of 2004. Prior to omission, it reads as
follows:-

"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 mututis mutandis,
apply."

7. It debars a person from
transferring by sale any fragment situated
in a consolidated area. The learned First
appellate court has passed the impugned
judgment and decree dated 01.10.1993,
when this section was in force. Now, the
factual position is that the sale has not yet
been completed in its sub-judice and this
appeal is being decided today in the year
2013 when this provision is not enforced.
What would be its effect ? While deleting
Section 168 (A) by U.P. Act No.27 of
2004 it was provided that this special
provision shall cease to be in force after
expiry of two years from the date of
commencement of this Act. In similar
matter, the Hon'ble Apex Court in
Mithlesh Kumari and anr. v. Fateh
Bahadur Singh and anr. (1991) 2 SCC
236, has held as under:-
912 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

"Applying the law to the facts of the
case in hand we find that the bhumidhar
Jang Bahadur's land admeasuring 10
bighas, 12 biswas and 10 biswansis was
itself
admittedly
a
fragment.
Jang
Bahadur entered into an agreement to sell
the land on 5.4.1966 and the first
respondent Fateh Bahadur on payment of
advance of Rs. 4000 is stated to have had
possession of the land. That sale would
attract the provisions of Section 168-A if
it resulted in transfer of the fragment. The
sales
to
the
appellants.
Kalawati
defendant No. 2 was dated 2.9.1966 and
to Mithlesh Kumari defendant No. 3 was
dated 21.12.1966. These two sales would
be covered by the old provisions of
sections 166 and 167, which sections did
not deal with the case of bhumidhar but
only by sirdar or asami. But Section 168A would be attracted and the provisions
of Section 167 would mutatis mutandis be
applicable.'

'Festinatio
justitiae
est
noverea
informateeni. (Hob. 97) Hasty justice is
stepmother of misfortune. Injustum est
nisi tota lege inspecta, de una aliqua ejus
particula
proposita
judicare
vel
respondere. It is unjust to decide or
respond to any particular part of a law
without examining the whole of the law."

8. In Second Appeal No.845 of
2011 (Vimal Kumar & ors. v. Smt.
Vinod Kumari) I fully agree with the
view of the lower appellate court that as
Section 168-A has been deleted hence no
relief can be granted to the defendants on
the basis thereof." In Second Appeal
No.1138 of 2011 (Vijay Bahadur v.
Lakshmi Devi) and Second Appeal
No.1139 of 2011 (Vijay Bahadur v.
Lakshmi Devi and anr.) this Court has
held that "Plea of bar of Section 168-A of
U.P.Z.A. & L.R. Act was also raised,
which prohibited transfer of fragment.
However the said section has been deleted
w.e.f. August, 2004. Moreover such a
plea could not be raised by the appellant
who himself transferred part of the land."
In Writ-C No.14489 of 2008 (Smt.
Sumita Devi v. Sushila Devi & ors.) this
Court has held as under:- this Court has
held that "

"Moreover as held by the Appellate
Court/ A.D.J. plea of sale deed being hit
by Section 168-A of the Act under the
facts and circumstances of the case, could
be raised only by the State or Gaon sabha
and respondent no.2 had absolutely no
locus standi to agitate the matter. The sale
deed was executed by respondent no. 5 in
favour of petitioner and both of them
were fully satisfied and the Gaon Sabha
or the State Government had not
challenged the same. In this scenario, no
other person had any authority to agitate
the matter.

The words 'consolidated area' have
not been defined either under U.P.
Consolidation of Holdings Act or U.P.
Zamindari Abolition & Land Reforms
Act. The definition of 'Consolidation area'
was irrelevant for the purposes of section
168-A of U.P. Z.A. & L.R. Act. The word
'Consolidation' has been defined under
Section 3(2) of U.P. C.H. Act as follows:-

[(2)
'Consolidation'
means
rearrangement of holdings in a unit amongst
several tenure-holders in such a way as to
make their respective holdings more
compact];

Explanation- For the purpose of this
clause, holding shall not include the
following:
2 All] Ram Pratap and Ors. Vs. Gulab
913

(i) Land which was grove in
agricultural year immediately preceding
the year in which the notification under
Section 4 was issued:

(ii) to (vii) - not relevant.

Accordingly grove is not included in
the 'Consolidated area' which can only
mean rearranged chak.

Moreover provisions of Section 168A were quite harsh. The Section has also
been deleted. U.P. Act No. 27 of 2004
which deleted section 168-A made the
previous transactions hit by the said
section voidable (in stead of void) and
curable (capable of being validated) on
payment of some nominal fees within a
particular period which has now expired
(Section 11). Accordingly, for these two
reasons the section shall be interpreted
(for the sake of past transactions)
liberally, in favour of vendor and vendee."

9. In relation to interpretation
relating to repeal or deletion a full bench
of the Hon'ble Apex Court has held in
Kolhapur Canesugar Works Ltd. &
anr. v. Union of India and ors. (2000) 2
SCC 536 has held:-

"The position is well-known that at
common law, the normal effect of
repealing a statute or deleting a provision
is to obliterate it from the statute book as
completely as if it had never been passed,
and the statute must be considered as a
law that never existed. To this Rule, an
exception is engrafted by the provisions
of Section 6(1). If a provision of a statute
is unconditionally omitted without a
saving clause in favour of pending
proceedings, all actions must stop where
the omission finds them, and if final relief
has not been granted before the omission
goes into effect, it cannot be granted
afterwards.
Savings
of
the
nature
contained in Section 6 or in special Acts
may modify the position. Thus the
operation of repeal or deletion as to the
future and the past largely depends on the
savings applicable. In a case where a
particular provision in a statute is omitted
and in its place another provision dealing
with the same contingency is Introduced
without a saving clause in favour of
pending proceedings then it can be
reasonably inferred that the intention of
the Legislature is that the pending
proceeding shall not continue but a fresh
proceeding for the same purpose may be
initiated under the new provision.

In the present case, as noted earlier.
Section 6 of the General Clauses Act has
no application. There is no saving
provision
in
favour
of
pending
proceedings.
Therefore,
action
for
realisation of the amount refunded can
only be taken under the new provision in
accordance with the terms thereof."

10. Moreover, the settled legal
position is that it must not be forgotten
that a matter has to be decided as per law
existing on that date. The Hon'ble Apex
Court in the case of Union of India &
ors. v. Indian Charge Chrome and anr.
(1999) 7 SCC 314 has clearly held that
the law which is to be applied in the case
if the law prevailing on the date of
decision making. In a catena of decisions
the Hon'ble Apex Court has reiterated the
settled legal position that the matter has to
be decided on the basis of law existing on
the date of decision and not on the basis
of the law prevailing on the date of
initiation of proceeding. Since second
appeal is a substantive remedy it is
continuation of proceeding. Recently, in
Ravi Shankar Tripathi v. Board of
914 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Revenue, [2007 (2) AWC 1327] a
Division Bench of this Court has
exhaustively dealt with this legal position.

11. In Writ-C No.2785 of 1985
(Charan Singh v. VII A.D.J.) this Court
has held as under:-

"That
Section
168-A
of
U.P.Z.A.&L.R. Act has been deleted
w.e.f. 23rd August 2004 in U.P. This
amendment being only prospective will
have no application in the present case.
As such the orders impugned in this writ
petition may be confirmed."

There is no doubt that deletion of
Section 168-A is prospective. However,
as no sale deed has yet been executed
hence the Section as it remained in
existence only until 23.8.2004 cannot be
applied to the sale deeds to be executed
after the said date even if they are
executed pursuant to agreements for sale
executed during the period when the said
Section was on the statute book."

12. In Second Appeal No.2585 of
1974 (Smt. Janki and anr. v. Murari Lal
and ors.) this Court has held as under:-

"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."

13. In the above mentioned case the
sale deed had been executed and in the
instant case before this Court the sale
deed is to be executed. Learned First
Appellate Court has decided the matter in
accordance with law as applicable on the
date of decision. But, this Court has
decided the second appeal as on today
when Section 168-A is no more in force
and, as such, the discretion to decree the
suit by specific performance of contract
cannot
be
legally
denied
to
the
plaintiffs/appellants. As of now, there is
no impediment, obstacle or defect in
execution of sale deed by its executor in
favour of the person in whose favour
agreement has already been executed long
back.

14. On the basis of discussions made
above, substantial question of law is
decided in favour of the appellants and, as
such, the appeal deserves to be allowed.
Accordingly, appeal is allowed. Judgment
and decree of the learned First Appellate
Court

15. Accordingly, second appeal is
allowed. Judgment and decree of the
learned First Appellate Court dated
2 All] Ram Sewak Singh & Anr. Vs. Ram Abhilakh Singh & Ors.
915
1.10.1993 is set aside and the judgment
and decree dated 18.11.1989, passed by
learned Vth Additional Munsif, Bahraich
in Original Suit No.135 of 1985 is
confirmed. The respondent is directed to
execute the sale deed of the disputed
piece of land in favour of the appellants
within two months from today, failing
which, the plaintiffs shall be entitled to
get the sale deed executed through the
agency of the Court. In the circumstances
of the case the parties shall bear their own
costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.07.2013

BEFORE
THE HON'BLE SIBHGAT ULLAH KHAN, J.

Second Appeal No. 466 of 1979

Ram Sewak Singh & Anr. ...Appellant
Versus
Ram Abhilakh Singh & Ors...Respondents

Counsel for the Petitioner:
Sri K.P. Singh, Sri Amit Mukherjee
Sri D.C. Mukherjee, Sri N.B.Singh
Sri Nagendra Singh

Counsel for the Respondents:
S.C., Sri S.C. Misra, Sri A.K. Verma
Sri Avinash Srivastava

CPC-Section-100- Second Appeal suit for
specific
performance-on
based
upon
Registered agreement to sale-decreed by
Trail Court-set-a side by first Appellate
court on ground attesting witness of
agreement deed not examined where as
defendant/respondent on basis of unregistered
agreement
deed
already
executed

sale
deed-shocking
that
neither sale consideration given before
Registrar, nor mentioned about payment
made on the fact of execution of
agreement-oral
evidence
Rs.
1000/-
given
at
the
time
of
executor
of
agreement-contrary to that sale deeddiscloses entire amount already given at
the time of execution of agreement-heldafter
01.01.77
registration
being
compulsory under section 54 of T.P. Act
by amendment Act No. 57 of 1976 by
virtue of explanation of section 3-suit
decreed subject to payment of entire
sale
consideration
within
stipulated
period.

Held: Para-14
Solemn registered transactions cannot
be avoided on such flimsy bogus self
serving pleas. The findings are not only
perverse but shocking to the judicial
conscience. Such findings can very well
be set aside in second appeal vide
Dinesh Kumar Vs. Yusuf Ali, AIR 2010 SC
2679
and
Union
of
India
Vs.
Ibrahimuddin, 2012 (8) SCC 148.

Case Law discussed:
2005 (1) SCC 162; AIR 2010 SC 2679; 2012
(8) SCC 148; AIR 2013 SC 434.

(Delivered by Hon'ble Sibghat Ullah
Khan, J.)

1. At the time of arguments on
8.4.2013 no one had appeared on behalf
of respondents. Accordingly, only the
arguments of Sri D.C. Mukherjee, learned
counsel for the appellants were heard and
judgment was reserved.

2. This is plaintiffs' Second appeal
arising out of original suit no.3 of 1978, Ram
Sewak Singh and others Vs. Pramod Kumar
and others. The suit was filed for specific
performance of an agreement for sale and for
cancellation of subsequent sale deed dated
30.12.1997. The suit was decreed on
20.7.1978 by Civil Judge Pratapgarh.
Against the said decree subsequent purchaser
filed Civil appeal no.140 of 1978 Ram
Abhilakh Singh & others Vs.Ram Sewak
Singh and others, District Judge Pratapgarh