# JAGDISH CHANDER (DEAD) BY L. RS v. BRIJ MOHAN & ORS

- **Citation:** [1978] 2 S.C.R. 805
- **Court:** Supreme Court of India
- **Decided:** 1978-02-06
- **Case number:** Civil Appeal No. 1946 of 1970
- **Bench:** S. Murtaza Fazal Ali, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jagdish-chander-dead-by-l-rs-v-brij-mohan-ors-7431
- **Pages:** 4

## Headnote

Transfer of Prosperty Act, (Act 4 of 1882) ss. 6, 1955 (2) read with ss. 15
a11d 17 of tl1e Specific Relief Act-Contract of agreement
to repurchase
the
lands, assig11ability-Whetlier specific performance can lie.
U.P. Zamindari Abolitio11 and La11d Reforms, Act 1950, s.
154-Restrictions on the transfer by a Bhumidari-Powers of the Court to exercise its discretion in passing the decree for specific performance.
One Ata-llahi Khan executed a sale deed in favour of the appe1lant, Shri
Jagdish Chander on 12-7-1968 and the !!litter took possession of the suit lands.
Oa the same da~ by an agreement, Jagdish Chander agreed to reconvey the
suit lands specifically to Ata-Illahi Khan or bis heirs, if the amount of consideratioo was repa.id to him within a period of five years. On 18-12-195?,
Ata-flahi Khan transferred his right to repurchase through a sale deed m
favour of one Bir Narain and others. Thereafter, Ata-.Ilahi again transferred
his right ttJ repurchase through another sa.le deed dated 21-7-1962 in favour
of the plaintiffs-respondents. :rhe sui• for specific performance filed by the
respondents on the basis of' the sale deed' da.ted 21-7-1962 failed.
But the
first appellate Court reversed the judgment of the trial Court and decreed the
suit The High Court affirmed the said appellate judgment.
Dismissing the appeal by special leave, the Court.
HEW : 1. Supreme Court cannot go behind the findings of fact in appeal
by special leave under Art. 136. [807 D-E]
In the instant case, the right to repurchase did not vest in Bir Narain and
others as per the sale deed daM:d 18-12-1958 in their favour but with the
plaintiffs.
[807 E]
2. Before s. 154 of the U.P. Zamindari Abolition and Land Reforms Act
1950 can apply, it must be found as a fact that the person to whom the property
is transferred must have held an aggregate of 12t acres or 30 acres as the case
may be at the relevant period. [807 G-H]
ln the ·instant case the plaintiffs did not have lands exceeding 12! acres s<?
as to fall within the mischief of s. 154 of the Act. [807 H, 808 A-BJ
[The Court applied "non-liquet" as to whether ~he Courts below should have
exercised their discretion to passing a decree for specific performance]
B
c
D
E
F
CivrL APPELLATE JURISDICTION : Civil Appeal No. 1946 of 1970.
Appeal by Special Leave from .the Judgment and Order dated
G
15-5-1969 of the Allahabad High Court in Second Appeal No. 2653
·Of 1967.
S. C. Manchanda and S. T. Aneja for the Appe11ants.
M. S. Gupta for Respondents Nos. 1 and 2.
I. S. Sawhney for Respondent No. 3.
TI1e Judgment of the Court was delivered by
13-119 SCI/78
H
~06
SUPREME COURT REPORTS
[1978] 2 S.C.R.
A
FAZAL ALI, J. This is a defendant's appeal by special leave and is
directed against the judgment dated 15th May, 1969 of the Allahabad
High Court upholding the decree passed by the District Judge in favour
of the plaintiff for specific performance of a contract of sale :
B
c
n
E
F
H
The facts of the case lie within a very narrow compass and may be
briefly stated thus.
The defendant J agdish Chander purchased the lands in dispute for
a consideration of Rs. 6000/- by a sale deed dated 12th July, 1958
including the Bhumidhari land fFom Ata Ilahi Khan who was the proprietor of the said lands.
The sale deed in favour of the defendant
Jagdish Chander contained a stipulation that the vendor would
be
entitled to repurchase the property for the consideration mentioned in
the sale deed within five years from the date of the execution of the
sale deed. On 18th December, 1958 Ata Ilahi Khan sold his right of
repurchase of the land under the sale deed above mentioned to Bir
Narain, Mangal Singh and Mukanda Singh. Thereafter, a few years
later on 21st May, 1962 Ata Ilabi Khan again sold his right of repurchase in respect of the aforesaid property to Brij Mohan and Chandrapal Singh, plaintiffs No. 1 & 2. It would thus be seen that while selling
the property to the defendant Jagdish Chander Ata Ilahi Khan had
clearly incorporated an a

## Text

, . •• J
,.
805
JAGDISH CHANDER (DEAD) BY L. RS.
v.
BRIJ MOHAN & ORS.
February 6, 1978
[S. MURTAZA FAZAL ALI AND P. N. SHINGHAL, JJ.]
Transfer of Prosperty Act, (Act 4 of 1882) ss. 6, 1955 (2) read with ss. 15
a11d 17 of tl1e Specific Relief Act-Contract of agreement
to repurchase
the
lands, assig11ability-Whetlier specific performance can lie.
U.P. Zamindari Abolitio11 and La11d Reforms, Act 1950, s.
154-Restrictions on the transfer by a Bhumidari-Powers of the Court to exercise its discretion in passing the decree for specific performance.
One Ata-llahi Khan executed a sale deed in favour of the appe1lant, Shri
Jagdish Chander on 12-7-1968 and the !!litter took possession of the suit lands.
Oa the same da~ by an agreement, Jagdish Chander agreed to reconvey the
suit lands specifically to Ata-Illahi Khan or bis heirs, if the amount of consideratioo was repa.id to him within a period of five years. On 18-12-195?,
Ata-flahi Khan transferred his right to repurchase through a sale deed m
favour of one Bir Narain and others. Thereafter, Ata-.Ilahi again transferred
his right ttJ repurchase through another sa.le deed dated 21-7-1962 in favour
of the plaintiffs-respondents. :rhe sui• for specific performance filed by the
respondents on the basis of' the sale deed' da.ted 21-7-1962 failed.
But the
first appellate Court reversed the judgment of the trial Court and decreed the
suit The High Court affirmed the said appellate judgment.
Dismissing the appeal by special leave, the Court.
HEW : 1. Supreme Court cannot go behind the findings of fact in appeal
by special leave under Art. 136. [807 D-E]
In the instant case, the right to repurchase did not vest in Bir Narain and
others as per the sale deed daM:d 18-12-1958 in their favour but with the
plaintiffs.
[807 E]
2. Before s. 154 of the U.P. Zamindari Abolition and Land Reforms Act
1950 can apply, it must be found as a fact that the person to whom the property
is transferred must have held an aggregate of 12t acres or 30 acres as the case
may be at the relevant period. [807 G-H]
ln the ·instant case the plaintiffs did not have lands exceeding 12! acres s<?
as to fall within the mischief of s. 154 of the Act. [807 H, 808 A-BJ
[The Court applied "non-liquet" as to whether ~he Courts below should have
exercised their discretion to passing a decree for specific performance]
B
c
D
E
F
CivrL APPELLATE JURISDICTION : Civil Appeal No. 1946 of 1970.
Appeal by Special Leave from .the Judgment and Order dated
G
15-5-1969 of the Allahabad High Court in Second Appeal No. 2653
·Of 1967.
S. C. Manchanda and S. T. Aneja for the Appe11ants.
M. S. Gupta for Respondents Nos. 1 and 2.
I. S. Sawhney for Respondent No. 3.
TI1e Judgment of the Court was delivered by
13-119 SCI/78
H
~06
SUPREME COURT REPORTS
[1978] 2 S.C.R.
A
FAZAL ALI, J. This is a defendant's appeal by special leave and is
directed against the judgment dated 15th May, 1969 of the Allahabad
High Court upholding the decree passed by the District Judge in favour
of the plaintiff for specific performance of a contract of sale :
B
c
n
E
F
H
The facts of the case lie within a very narrow compass and may be
briefly stated thus.
The defendant J agdish Chander purchased the lands in dispute for
a consideration of Rs. 6000/- by a sale deed dated 12th July, 1958
including the Bhumidhari land fFom Ata Ilahi Khan who was the proprietor of the said lands.
The sale deed in favour of the defendant
Jagdish Chander contained a stipulation that the vendor would
be
entitled to repurchase the property for the consideration mentioned in
the sale deed within five years from the date of the execution of the
sale deed. On 18th December, 1958 Ata Ilahi Khan sold his right of
repurchase of the land under the sale deed above mentioned to Bir
Narain, Mangal Singh and Mukanda Singh. Thereafter, a few years
later on 21st May, 1962 Ata Ilabi Khan again sold his right of repurchase in respect of the aforesaid property to Brij Mohan and Chandrapal Singh, plaintiffs No. 1 & 2. It would thus be seen that while selling
the property to the defendant Jagdish Chander Ata Ilahi Khan had
clearly incorporated an agreement to reseμ. the land within five years on
payment of the consideration of the sale deed itseH. Armed with the
sale deed executed by Am Ilahi Khan in favour of the plaintiffs, the
respondents filed the present suit for specific performance of the contract of sale contained in the sale deed executed by Ata Jlahi Khan in
favour of the defendant Jagdish Chander. The plaintiffs sought to enforce that part of the contract which contained the right of the vendor
to repurchase the property from Jagdish Chander within five years.
The suit was tried by the Second Additional Civil Judge, Muzaffarnagar who dismissed the suit holding that the plaintiff's sale deed was
not legally enforceable. The plaintiffs then filed an appeal to the Court
of the District Judge. Muzaffarnagar against the judgment of the
Additional Civil Judge.
The District Judge disagreed with the view
taken by the trial Court.and decreed the plaintiffs' suit holding that the
agreement relied upon by the plaintiffs was capable of b~ing enforced
The defendant Jagdish Chander unsuccessfully preferred an appeal to .
the High Court which was dismissed and the decree of the District
Judge was upheld by the High Court. Thereafter, the plaintiffs. came
upto this Court and after being granted special leave the present appeal
has been placed before us for hearing.
Mr. Manchanda, learned counsel, appearing for the appellant submitted two points before us. In the first place, he urged that in view
-of a prior sale deed executed by Ata Ilahi Khan in favour of Bir Narain
and others dated 18th December, 1958, the vendor had no right to
execute a sale of the right of repurchase on 21st July, 1962 in favour
of the plaintiffs, because the vendor had parted with his title in favour
of Bir Narain and if he had sold anything to the plaintiffs it was merely
a bag of wind. So far as this point is concerned, the District Judge
reversed the finding arrived at by the trial Court and came to a finding
--
.....
. .......
•
/---
•
l
.JAGDISH CHANDER v. BRIJ MOHAN (Fazal Ali, J.)
8 0 7
of fact that the sale deed in favour of Bir .Narain was a sham transacA
tion and did not pass any title to the vendees Bir Narain and others.
The District Judge further held that Bir Narain himself appeared as a
witness in the suit and clearly deposed that he had surrendered his
interest and had no title at all. In this connection, the District Judge
observed as follows :-
"When once, it has been found that Bir Narain and
B
others had no valid transfer made in their favour because of
the want of a title to convey in their vandor, it is too much
to say that they would be possessing the right to take back
the land in the consequence of repurchase ........... .
Further, the three vendees, Bir Narain, Mukanda Singh and
Manga!- Singh, were the attesting witnesses of the sale deed
which specifically stated that whatever rights they possessed
c
under the sale deed dated 20th December, 1958 had been
relinquished
or
surrendered ... ....... then Bir
Narain
(P.W.
5)
has
declared
on
sworn
testimony
that he and the other vendees had acquired any right under
the sale deed Ex.A-20 it is .difficult to accept the respondent's contention that the right to repurchase vested in Bir
Narain and others.
In that view the finding of the learned
D
Additional Civil Judge is in correct".
This finding of fact has been affirmed by the High Court and it is
not possible for us to go behind these findings of fact in this appeal by
special leave. For these reasons, therefore, the first contention raised
by the learned counsel for the appellant must be overruled.
Another point of law which has been argned by counsel for the
appellant was that as Ala Ilahi Khan or the plaintiffs were possessed
of the Bhumidhari land which exceeded the limit of 12t acres,
the
sale was invalid under the provisions of section 154 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to
as the Act). Section 154 of the Act as it stood when the transaction
was entered ra,n thus :
"154. Restrictions on the transfer by a bhumidhar:
(1) Save as provided in sub-sections (2)
and
(3).
no
bhumidhar shall have rights to transfer by sale or gift, any
land other than tea gardens to any person other than an
institution established for a charitable purpose, where such
person shall, as a result of the sale or gift, become entitled to
land which together with land, if any, held by himself or
together with his family, will in the aggregate, exceed 12}
acres in Uttar Pradesh".
It is manifest that before the section can apply it must be
found as a fact that th_e person to whom the property is
transferred
must have held an aggregate of 12t acres of land in U. P. which was
increased to · 30 acres at the relevant period. Tn the instant case, the
District Judge has returned another . finding of fact that the defendant
was not able to show by producing the khatauni or any other document that the plaintiffs No. 1 and 2 who were the transferees had land
E
F
G
H
A
B
808
SUPREME COURT REPORTS
[1978] 2 S.C.R.
exceeding 12! acres. In tllis connection, the District Judge found as
follows:
"On the point of fact as well, the plea is not snpported
by evidence.
The defendant did not produce the Khatauni
to prove that the plaintiffs No. 1 and 2 would, in the result
of the sale deed
become entitled to land exceeding
12! acres".
Thus, on the finding of fact recorded by the District Judge and as
affirmed by the High Court, it was established that the transferees,
namely, the plaintiffs did not have lands exceeding 12! acres so as to
fall within the mischief of section 154 of the Act. In this view of the
matter the second contention raised by counsel for the appellant also
c fails and it is not necessary for us to examine further the consequences
of violation of the provisions of section 154 of the Act. Mr. Manchanda
submitted that in view of the statutory prohibition contained in section
154 of the Act, the court would not exercise its discretion for enforcing
the contract which is prohibited by law. In view, however, of the
finding of fact referred to above that the total bhumidhari land possessed by the plaintiffs did not exceed 12! acres, or 30 acres, as the case
D · may be, the question of application of section 154 of the Act does not
arise, and, therefore, it is not necessary.for us at all to go into the question as whether or not the conrt sqould have exercised its discretion
in passing a decree for specific performance.
The result is that the contentions raised by Mr. Manchanda fail
and the appeal is dismissed, bnt in the circumstances without any
order as to costs.
S.R.
Appeal dismissed.