JUDGMENT K.S. Rakhra, J.
1. The defendant, who has lost in the two Courts below in a suit for specific performance, has preferred this appeal against the judgment and decree dated 30-9-1993 passed by Additional Civil Judge, Unnao by which the judgment and decree dated 31-3-1993 of I Additional Munsif, Unnao in regular suit No. 79 of 1980; Smt. Kitabun and others v. Shri Kalka, was confirmed.
2. The respondents brought a suit for specific performance of an agreement dated 21st July 1979, alleged to have been executed by Kalka, (original appellant) in favour of Sultan Ahmed, who died on 20-8-1980. The suit was brought by his heirs after the death of Sultan Ahmed. It was contested by Kalka inter alia on the ground that he had not executed the agreement in question for consideration of Rs. 17,000/- nor had obtained a sum of Rs. 14,000/- as an advance nor did he deliver possession of the land in question to Sultan Ahmed. The land in question was agricultural land and Kalka was Harijan. He also contested that the land was mortgaged with Bhumi Vikas Bank and could not have been agreed to be sold without permission from the mortgagee. It was alleged by Kalka that his thumb impression/signature had been obtained by Sultan Ahmed on blank paper; that the village was under consolidation and no permission from Settlement Officer, Consolidation have been obtained.
3. It may be mentioned here that the plaintiff had alleged that requisite permission under Section 157-A of UPZA & LR Act read with Rule 143-C, therein had already been obtained by Kalka. In this regard, the contention of Kalka was that he had not applied for such a permission and the permission could not have been granted under law.
4. Both the sides led evidence and the trial Court came to the conclusion that Kalka had entered into an agreement to sell his land as alleged by the plaintiff and had obtained a part of the consideration that is a sum of Rs. 14,000/- as an advance to pay off his Bank loan and had also delivered possession of the land in question to Sultan Ahmed at the time of the execution of the agreement to sell. The trial Court further came to the conclusion that Kalka applied for and obtained permission on 18-8-1980 from District Magistrate, Unnao under Section 157-A of UPZA & LR Act to sell his land in question. The suit was, accordingly, decreed on 31-3-1993 and Kalka was directed to execute the sale deed after receiving a balance amount of Rs. 3,000/- as per registered agreement dated 21-7-1979. The Court further ordered that in case the judgment debtor fails to execute the sale deed, the decree holder would be entitled to get it executed through Court.
5. In civil appeal No. 65 of 1993 preferred against the said judgment and decree, the first appellate Court confirmed the finding of the trial Court that Kalka had executed registered agreement to sell and had obtained Rs. 14,000/- as part consideration in advance and that he failed to execute the sale deed when the plaintiffs who have always been and are ready and willing to perform their part of the contract requested him to execute the same. With regard to the objection relating to Section 157-A of UPZA & LR Act, it was held that the said permission was obtained by Kalka and there was nothing to show that the permission was invalid or could not have been granted.
6. Section 157-A of UPZA & LR Act prohibits certain transfers of agricultural land by Harijan without the permission of the District Magistrate. It reads as follows :--
157-A "Restrictions on transfer of land by members of Scheduled Castes.-- (1) Without prejudice to the restriction contained in Sections 153 to 157, no bhumidhar or asami belonging to a Scheduled Caste shall have the right to transfer any land by way of sale, gift, mortgage or lease to a person not belonging to a Scheduled Caste, except with the previous approval of the Collector:
Provided that no such approval shall be given by the Collector in case where the land held in Uttar Pradesh by the transferor on the date of application under this section is less than 1.26 hectares or where the area of land so held in Uttar Pradesh by the transferor on the said date is after such transfer, likely to be reduced to less than 1.26 hectares.
(2) The Collector shall, on an application made in that behalf in the prescribed manner, make such inquiry as may be prescribed."
7. The first appellate Court has held that there is nothing on record to show that the permission could not be granted as per the terms of the aforesaid section. There was no evidence led by Kalka that after the transfer of the land in question, he would not be left with minimum agricultural land as prescribed under the aforesaid provision. To the contrary, the report of the Thesildar obtained in connection with the aforesaid permission showed five bigha was left with Kalka even after the transfer of the disputed agricultural land.
8. With regard to the plea relating to bar of Section 5(c) II of Consolidation of Holdings Act to sell without the permission of the Settlement Officer, Consolidation, the first appellate Court observed that since consolidation operations were no more continuing, no permission of Settlement Officers Consolidation was necessary. With these observations, the appeal was dismissed.
9. Now this second appeal has been admitted on the following questions of law raised by the defendant-appellant :--
1. Whether the agreement for sale could be entered in the absence of permission under Section 157-A of UPZA & LR Act.
2. Whether the sale deed could be executed without obtaining permission of the Settlement Officer of Consolidation under the UPCH Act.
3. Whether the Court could not examine the signature to find their genuineness.
10. Before proceeding further, it may be mentioned here that the counsel for the respondents informed that in execution of the decree for specific performance, the sale deed has already been executed on 17-9-2001. There is concurrent finding of the two Courts below that Kalka had executed the agreement on 21st July, 1979 to sell his agricultural land for consideration mentioned therein and had obtained part of the consideration. There is also concurrent finding of the two Courts below that he had applied for permission under Section 157-A of UPZA & LR Act and the District Collector had granted this permission on 18-8-1980, Although it is argued by the learned counsel for the appellant that the suit for cancellation of the said permission has already been filed but the fact remains that the said permission has not been set aside. Therefore, there was no legal impediment under Section 157-A of UPZA & LR Act for the execution of the sale deed in favour of the plaintiff.
11. So far as the bar of Section 5 of U.P. Consolidation of Holdings Act is concerned, the first appellate Court rightly observed that the said bar no more exist. In fact Section 5, which was amended from time to time does not create an absolute bar. The bar under it is for limited period. According to this Section, upon the publication of the notification (under Sub-section (2) of Section 4) in the Official Gazette, the consequences as detailed in the section, shall, subject to the provisions of this Act, from the date specified thereunder till the publication of notification under Section 52 or Sub-section (1) of Section 6, as the case may be, ensure in the area to which the notification under Section 4(2) of the Act relates. Part (ii) of Clause 'C' of Section 5 read as follows :
"Notwithstanding anything contained in UPZA & LR Act, 1950, no tenure holder, except with the permission in wilting of the Settlement Officer, Consolidation, previously, obtained shall --
I ..........................
II. Transfer by way of sale, gift or exchange his holding or any part thereof in consolidation area."
Part (11) of Clause 'C', which prohibited transfer by way of sale, gift or exchange by any tenure holder of his holding or any part thereof in the consolidation area, without the permission of the Settlement Officer, Consolidation, was deleted and omitted by U.P. Act No. 30 of 1991 with effect from 19-2-1991. That being the position, there was no bar in execution of the sale deed, which was ultimately executed through Court on 17-9-2001. It is not a case where the application for permission was made and rejected by the Settlement Officer, Consolidation. Even if under the unamended provision of Section 5 of Consolidation of Holdings Act the permission of Settlement Officer, Consolidation was necessary, there was no bar in decreeing the suit for specific performance of an agreement to sell after obtaining necessary permission from Settlement Officer, Consolidation. Nothing has been shown to establish that the consolidation of holdings operation was in progress and publication of notification under Section 52 or Sub-section (1) of Section 6 of the Consolidation of Holdings Act had not taken place till the trial Court passed the decree. With regard to the bar created by Clause (ii) of Section 5-C of the Consolidation of Holdings Act, it is further to be kept in mind that said section did not create an absolute bar. It only required that prior written permission of the Settlement Officer. Consolidation to be obtained if sale deed was to be executed within the period, consolidation operation were in progress. If a party enters into a contract to do certain things, he shall be deemed to have further agreed to do all other things which are necessary for performance of the contract. In the instant case, if Kalka had entered into agreement to sell, he shall be deemed to have also agreed to take all necessary steps in order to per form his part of the contract. The agreement in question clearly mentioned that Kalka would also obtain permission of Settlement Officer, Consolidation, Unnao before executing the sale deed in question. In the instant case, while decreeing the suit, the Court could have also directed the defendant judgment debtor to apply for and obtain permission from Settlement Officer, Consolidation, if it was necessary for execution of the agreement to sell. As stated earlier, this clause requiring permission of Settlement Officer, Consolidation was omitted in February, 1991 ' and therefore, on 31st March, 1993 when the decree was passed by the trial Court, this bar was not there.
12. So far as the question of examination of the signatures of the defendant by the Court is concerned, this Court is of the opinion that there was no legal impediment and the Court could definitely form an opinion by comparison of the signature and evidence on record and come to the conclusion that questioned signature was that of the defendant.
13. In this case, the Courts below believed the evidence led by the plaintiff. The defendant having been given opportunity, had not opted to send the questioned signature for an expert opinion. The Court accordingly, decided the issue in favour of the plaintiff. This was legally possible.
14. In view of the discussion made above, this appeal has no force and is liable to be dismissed.
15. The appeal is dismissed.