JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. This writ petition has been filed challenging the order of District Judge, Gyanpur, Varanasi in Civil Revision No. 307 of 1994.
3. The only question involved in this case is that the decree passed by the civil court in Civil Suit No. 7/63 is executable or not.
4. Relevant facts in short are that Dukkhi who was respondent No. 1 in this petition executed an agreement to sell his nineteen bhumidhari plots in favour of Sankhta and Satyanarain, predecessors of respondent Nos. 2 to 5 on 28.5.1963. The area of these 19 plots was 5 bighas 19 biswas and 9 dhoor. It was an unregistered document. Dukkhi thereafter sold these plots to the ancestors of the petitioners on 18.6.1963 by a registered sale deed. The ancestors of respondent No. 2 to 5 filed a Suit No. 7/1963 for specific performance against Dukkhi, which was decreed on 31.7.1964. The order was challenged in Civil Appeal No. 303/1964 by the defendant judgment debtors, this appeal was dismissed on 30.10.1965. It was again challenged in Second Appeal No. 335 of 1966 in High Court, which was dismissed on 29.2.1980. The judgment debtor filed review of the aforesaid judgment in appeal, which was also dismissed on 23.2.1981. The S.L.P. filed before the Supreme Court was also dismissed. In the suit, decree was passed for execution of sale deed of specific 19 plots.
5. The decree holder filed execution application No. 7 of 1980 praying for execution of sale deed of the 19 plots. The judgment debtor filed an objection in execution under Section 47 of the C.P.C. that the decree in suit is not executable on the ground that during pendency of the appeal No. 303 of 1964 the village came under consolidation operation and village was denotlfied under Section 52 of the Consolidation of Holdings Act. It consolidation proceedings out of 19 plots most of the plots were allotted in the chak of the other persons and only plot No. 346 having an area of 2 bigha 14 biswas and 2 dhoor was allotted in the chak of the judgment debtor and the plots which were subject matter of decree were changed and are unidentifiable hence the decree has become unexecutable.
6. The objection of the Judgment debtor petitioner was overruled by the Civil Judge, Varanasi by order dated 3.8.1984. The judgment debtor filed revision against the said order dated 3.8.1984. The revision filed by him was dismissed by the A.D.J., Gyanpur by order dated 6.11.1987. The present writ petition has been filed against the aforesaid order by judgment debtor on the ground that after the consolidation operations the identity of the plots has changed and the decree is not executable.
7. It is an admitted fact that agreement to sell was in respect of specific 19 plots situate at different places. Out of these 19 plots having area of 5 bigha 19 biswas 9 dhoor, plots having area of 3 bigha 2 biswa and 5 dhoor has been allotted to strangers and only area of 2 bigha 14 biswa 2 dhoor has been allotted to judgment debtor. The only old plot of 346 having an area of 2 biswa 10 dhoor retained its identity.
8. The counsel for the petitioner submits that agreement to sell does not create any liability in the land sought to be sold and decree holder did not acquire any interest in new plots or chak of judgment debtor and decree cannot be executed in respect of new plots.
9. It was held in Pyarelal v. Horilal, AIR 1977 SC 1226 : 1997 RD 180. In Paras 3, 4, 5 and 8 it was held that :
"A cross reference to Section 54 of the Transfer of Property Act shows that a contract for the sale of immovable property is a contract that sale of such property shall take place on terms settled between the parties. It has however been specifically provided in the section that such a contract does not in itself, create any interest or charge on such property. It would therefore, follow that agreement for sale in the present case did not give rise to any interest "in" the original holding of the defendant as tenure holder, that being so, there could be no occasion for transfer of any such liability "in" the new land or "chak" of the defendant so as to attract Clause (b) of Section 30 of the Act. In fact what the defendant was bound to do under Section 55(1)(d) of the Transfer of Property Act was to execute a proper conveyance of "the property" which was the subject matter of the contract for sale, and not of any other property. So when he lost that property as a result of the scheme of consolidation and his rights, title and interests ceased in that property by virtue of Clause (a) of Section 30 of the Act, the agreement for sale became void within the meaning of Section 56 of the Contract Act, and it is futile to urge that they were saved by Clause (a) or Clause (b) of Section 30 of the Act.
10. Thus, the agreement for sale of the original plots could not be executed against the new chak of the J.D. or in respect of his old plots and some new plots or in the plots, which were allotted to the strangers in consolidation proceedings. The two courts below have mainly relied on the case of Shanti Prasad (supra), 1972 ALJ 549.
11. It is wrong to say that identity of the plots was not changed in consolidation proceedings. Only nine plots out of the 19 plots were sought to be sold in the new chak of the petitioner. The plots therefore, must have undergone change in their identity.
12. Section 30 (b) of the U. P. Consolidation of Holdings Act provides that right, title, interest and liabilities of tenure holder shall cease in the old holdings and Sub-clause (b) thereof provides that the tenure holder "entering into possession, deemed to have entered into possession shall have in his chak the same rights, title, interest and liabilities as he had in the original holdings". The Apex Court interpreted the provision and specifically averred in the case of Shanti Prasad (supra).
13. Agreement for sale does not create any liability in the original holdings, hence in the instant case no liability was transferred in the land of the new chak and the decree cannot be executed against the old plots, which form part of new chaks. The only remedy available to the decree holder was to amend the suit for damages or substitution of area in the new chak allotted to the J.R. in place of plots, but the suit was neither amended nor any such relief was claimed in the plaint.
14. The Apex Court in Jagdish Singh v. Nathu Singh, AIR 1992 SC 1604, para 10 has held that if a Court come to the conclusion that a specific performance cannot be granted as provided under Section 21 of the Specific Relief Act, compensation can be awarded provided that such a relief is claimed in the plaint.
15. As stated above plaintiff has not claimed any such relief in this case. It has been urged on behalf of the respondent that during consolidation operation objections were raised and the name of purchasers was recorded. On objection being filed the S.O.C. passed an order that the allotment of chak and mutation was not final and would be subject to appeal pending in civil court. The counsel for the respondents urged that in view of this direction the chak allotted to the judgment debtor or his vendors was not final allotment and decree can be executed as right of Dukkhi did not come to an end on the old plots. As stated above neither right, title and interest of Dukkhi the judgment debtor in the land were created in old plots nor transferred in new plots under Section 30 of the Consolidation of Holdings Act. Agreement to sell the 19 plots did not carry any liability when they were allotted in the new chak of others. As the plots in new chak did not carry any liability, the obligations to execute the decree of Specific performance in respect plots forming new chak did not subsist. The view taken by the two courts below is therefore, not sustainable.
16. For these reasons the writ petition allowed. The impugned order of the court below is quashed. The execution cannot proceed. No orders as to costs.