Syed Jalal And Ors. vs Tarrgopal Ram Reddy And Ors.

on 25 April, 1968

Andhra High Court Andhra High Court Syed Jalal And Ors. vs Tarrgopal Ram Reddy And Ors. on 25 April, 1968 Equivalent citations: AIR 1970 AP 19 Author: P J Reddy Bench: P J Reddy, Parthasarathi JUDGMENT Cases Referred: Ramulu v. Anantharamulu, (1966) AIR 1966 Andh Pra 70 (53),1964-2 Andh WR 161; C.B. Taraporwala v. Kazim Ali Pasha, (1966) AIR 1966 Andh Pra 361 (53), 196612 Andh WR 121; Neminath Appayya v. Jamboorao, (1966) AIR 1966 Mys 154 (53), (1965) 1 Mys LJ 442; Raghavachari v. Ramkrishna Reddy, (1965) 1965-2 Andh WR 61, ILR (1965) Andh Pra 1226; Chandnee Widya Vati v. C.L. Katial, (1964) AIR 1964 SC 978 (51), (1964) 2 SCR 495; Venkata Rao v. Sattaiah,(1964) 1964-2 Andh WR (SN) 43; Vasudev Reddy v. Venkata Reddy, (1963) AIR 1963 Andh Pra 232 (50), 1962-2 Andh WR 462; Ramulu v. Narasimhulu, (1963) 1963-1 Andh WR 165, 1963-1 Andh LT 207; Inamdars of Sulhnagar Colony v. Govt of Andhra Pradesh, (1961) AIR 1961 Andh Pra 523 (48), 1961 Andh Lt 580; Akram Miya v. Secunderabad Municipal Corporation, (1957) AIR 1957 Andh Pra 859 (44); Sharfuddin v. Sama Yelluga, (1957) 1957-2 Andh WR 478; Pichamma v. Guraviah, (1956) 1956 Andh LT 993; Modh. Abdul Khader v. Sedam Asru, (1955) AIR 1955 Hyd 271 (42), ILR (1955) Hyd 695; G. Rama Krishna Rao v. Mucha Bharappa, (1954) ILR (1954) Hyd 855; Vita Food Products Incorporated Ltd. v. Unus Shipping Co. Ltd., (1939) 1939 AC 277, 108 LJ PC 40; Motilal v. Nanhelal, (1930) AIR 1930 PC 287 (17), 26 Nag LR 33; Anderson Ltd. v. Daniel, (1924) 1924-1 KB 138, 93 LJ KB 97 JUDGMENT P. Jaganmohan Reddy, C.J. 1. These five second appeals, the first appeal and the Civil revision petition have been referred to a Bench by our learned brothers Venkatesam, J., Krishna Rao, J., and Obul Reddy, J., by their respective orders for resolving the conflict between the two decisions of Gopal Rao Ekbote J., in Ramulu v. Narashimhulu, (1963) 1 Andh WR 165 and Raghvachari v. Ramkrishan Reddy (1965) 2 Andh WR 61, on the one hand and two decisions of N. D. Krishna Rao J., (as he then was) in Ramulu v. Anantharamulu, & C. B. Taraporwals v. Kazim Ali Pasha, , one of Munikanniah J. in Vasudev Reddy v. Venkata Reddy, and one of Chandrasekhara Sastry, J., in Venkata Rao v. Ch. Sattaiah, 1964 (2) Andh WR (SN) 43 on the other, involving the determination of the scope and ambit of S. 47 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act 921 of 1961) hereinafter called "the Tenancy Act). These several appeals and revision petition challenge the validity of (a) agreement of sale entered into between vendor and vendee to sell agricultural lands, the terms of which are that the vendor would take necessary steps to obtain permission under Section 47 of the Tenancy Act and execute a regular sale deed, but without putting the vendee kin possession; (b) agreement of sale followed by possession with a clause that permission would be obtained; and (c) agreements of sale, whether simplicities or followed by possession without the clause that permission will be obtained under Section 47. 2. In all these three categories of cases, the question are (1) whether a suit for specific performance is maintainable compelling the vendor to apply for permission; (2) whether in a suit for ejectment on the ground that the vendee is in possession of agricultural land without the permission of the Tahsildar, the vendee can plead part performance under Section 53-A of the Transfer of Property Act to defend his possession; and (3)
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whether a suit for injunction restraining the defendant from interfering with the plaintiff-vendee's possession lies. 3. In S. A. No. 340/63 the 1st defendant who was the owner and pattedar of the suit lands put the plaintiff in possession of his lands by virtue of an agreement of sale dated 25-12-1959, agreeing to sell them for a consideration of Rs. 5500. Prior to the agreement it is alleged the plaintiff paid Rs. 500/- to the 1st defendant in 1957 and on the date of the agreement of sale he paid Rs. 2500/- to him. In addition to this the plaintiff cleared off the debts due by the 1st defendant to Masetty Venkatesam and Burhanuddin of Dhobipet. the plaintiff further alleged that the 4th and 5th defendants, in spite of their knowing that the 1st defendant had entered into an agreement with the plaintiff and had put him in possession, jointed hands with defendants 2 and 3 persuaded the 1st defendant to sell the lands to the 4th defendant. Thereafter defendants 1 to 4 made an application to the concerned Tahasildar for permission to alienate the suit lands. Defendants 2 to 5 are interfering with the plaintiffs possession of the suit lands and are intending to dispossess him by unlawful means. he accordingly filed the suit for a permanent injunction against defendants 1 to 5 to restrain them from interfering with his possession. 4. Defendants 2 and 3 were ex parte. The 1st defendant denied that he ever entered into an agreement in favour of the plaintiff or put him in possession, of obtained any money from him. He further contended that the plaintiff is his agricultural servant and that he was never in possession of the suit land. In any case the suit is not maintainable against him who is admittedly the owner of the suit lands. he contended that the alleged transaction between him and the plaintiff being contrary to Section 47 and 48 of the Tenancy Act is a nullity. Defendants 4 and 5 denied the allegations made in the plaint. 5. The Munsif- Magistrate, West Hyderabad District, decreed the suit and it may be stated that the counsel for the 1st defendant did not press issue No. 5 relating to the validity of the transaction under Section 47 and 48. At any rate the Munsif having found that the agreement was true and valid and that possession was given, held that the agreement of sale is not hit by Sections 47 and 48 and that the plaintiff can use this agreement to show the nature of his possession. Against this decree and judgment, defendants, 1, 4, and 5 preferred an appeal. The learned 1st Addl. Chief Judge, City Civil Court, held that the 1st defendant after receiving Rs. 2,500/executed the agreement in favour of the plaintiff agreement in favour of the plaintiff agreeing to sell the lands for Rs. 5,500/- but there is absolutely no proof that the plaintiff cleared off the debts owed by the 1st defendant to P. Ws. 3 and 6; and that pursuant to the agreement, the plaintiff came into possession of the land and was in possession at the time of the institution of the suit. On the question of legality of the transaction under Section 47 and 48 following the decision in 1963-1 Andh WR 165 (supra), he held that in view of the fact that no permission was obtained under Section 47 before the agreement of the sale was entered into, the plaintiff's possession is unauthorised and unlawful; and following yet another decision Akram Miya v. Secunderabad Municipal Corporation, AIR 1957 Andh Pra 859 he held that as the possession of the plaintiff is unlawful, no permanent injunction can be granted in his favour. In so far as the decision of Munikannaiah, J., in is concerned, (supra) which held that in such cases the person in possession can set up part performance in defence of his possession the learned judge stated that there was no discussion as to whether a person in unlawful possession can be granted the relief of permanent injunction, and in the view that the transaction is invalid, he revered the decree of the trial Court and dismissed the suit. The plaintiff has therefore, come up in second appeal. 6. In S. A. 541/63, the defendant executed an agreement of sale of agricultural lands on 7-4-1958 in favour of the plaintiff, and obtained part consideration. The plaintiff promised to pay the balance of sale consideration at the time of registration of the sale deed after the defendant obtains permission of the Tahsildar under Section 47. The plaintiff was thereafter put in possession of the suit lands. But since no permission was obtained the plaintiff filed the suit for specific performance. The defendant denied that he ever executed the agreement in favour of the plaintiff or put the plaintiff in possession. The trial Court held that the agreement was true and that possession was given but that the transaction was hit by Section 47. The appellate court confirmed the
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findings on fact and dismissed the appeal following the decision of Gopal Rao Ekbote, J. in 1963-1 Andh WR 165 (supra). 7. In S. A. No. 641/63 the suit for specific performance was decreed by the trial court, directing the defendant to obtain permission under Section 47, but this decree was reversed in appeal relying on the judgment of Gopal Rao Ekbote J., to which we have referred. 8. In S. A. 753/63 the plaintiff filed the suit for a declaration of his right in respect of an agricultural land and for possession alleging that in 1952, as a protected tenant he purchased the suit land from the landholder and obtained a certificate Ex. A-1, from the Collector and that since then he has been in possession of the property till 1955, when the defendant caused obstruction and trespassed into the suit land. The defendant pleaded that though the plaintiff has purchased the suit land he did not have sufficient funds to pay the sale price and, therefore, he borrowed Rs. 800/- from, the defendant. Subsequently, the plaintiff could not repay the debt and therefore, entered into an agreement to sell the property in satisfaction of the debt in pursuance of which he executed an agreement in March, 1954 the defendant has been in possession and it is wrong to say that he had interfered with the possession of the plaintiff. The trial court dismissed the suit on the ground that the trespass pleaded in 1955 in 1955 is not true. The District Judge on appeal thought that his was not a correct approach, allowed the appeal and decreed the suit of the plaintiff for declaration of his right to an for possession of the suit property, holding that Section 53-A of the Transfer of Property Act cannot be invoked in cases where a transfer is not valid unless it is preceded by permission from the Collector. he relied on the decision of Gopal Rao Ekbote, J., in 1963-1 Andh WR 165 (supra). 9. In S. A. 881 of 1964 the respondent filed the suit for specific performance of an agreement of sale of the suit agricultural land. The trial court dismissed the suit holding that the agreement was not proved and that the decree for specific performance cannot be maintained. The learned Chief Judge City Civil Court on appeal reversed that decree holding that the agreement was proved, and granted specific performance. The defendant preferred the second appeal. 10. In A. S. 26/63 , the plaintiff filed the suit for a perpetual injunction on the allegations that the defendant agreed to sell the suit land to the plaintiff for Rs. 6,000/- under an agreement of sale dated 25-1-1954 received part consideration of Rs. 4,000/- and passed a receipt and gave possession of the land to the plaintiff. The defendant received the balance of sale consideration on 5-6-1967 and took a receipt. Since the defendant did not execute a registered sale deed, the plaintiff filed the suit for specific performance, and it was decreed with the consent of the defendant. The plaintiff was in continuous possession of the suit land since then. However, the defendant did not take permission of the collector in pursuance of the decree; and on the other hand, started to interfere with the peaceful possession and enjoyment of the suit land by the plaintiff. Since the plaintiff is in possession of the suit land in pursuance of a lawful agreement of sale, he is entitled to have his possession protected. The defendant denied that the plaintiff is in possession of the suit land. he never entered into any agreement of sale with the plaintiff and did not revise any consideration from him. He did not file any written statement in the District Munsif's Court and the decree passed by that Court is a nullity as it has no jurisdiction to pass such a decree. The suit land was given to the plaintiff and another Kashinath in 1963 under a Khandgutta for 7 years, and after termination of the said period the defendant was put in possession of the suit land and he cultivated it in 1961. Mere agreement of sale does not confer any right on the plaintiff, and the suit agreement is also void as the permission of the Collector was not obtained as required by the Tenancy Act. The subordinate Judge, Nizamabad held that the prior decree was without jurisdiction and it was, therefore, null and void; that the agreement of sale entered into was also null and void, as according to him, actual alienations as well as agreements of sale entered into after the commencement of the Tenancy Act are subject to the restrictions imposed in Sections 47 and 48 of the Tenancy Act are subject to the restrictions imposed in Sections 47 and 48 of the Tenancy Act and sanction of the Collector has not so far been obtained permitting the defendant to alienate the suit land to the plaintiff. In this view he dismissed the suit, against which the
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plaintiff filed the appeal. 11. In C. R. P. 1792/66 one Rayala Venkatappaiah executed an agreement of sale in favour of the petitioner agreeing to sell his agricultural land within 6 months after obtaining permission from the Collector under Section 47 and obtained part consideration thereof. After his death his legal representatives filed a petition under Section 98 of the Tenancy Act for summary eviction of the petitioner on the ground that the petitioner's procession was unlawful. the Sub-Collector held following the decision of Gopal Rao Ekbote J., cited above that the petitioner's possession was unauthorised and directed eviction which was confirmed by the Collector on appeal. Against this order, the petitioner filed the C. R. P. 12. The Tenancy Act, which is applicable to the Telangana area of the erstwhile Hyderabad State in its preamble state: "Whereas it is expedient to amend the Law regulating the relations of landholders and tenants of agricultural land and the alienation of such land, and whereas it is also expedient to enable landholders to prevent the excessive sub-division of agricultural holding, to empower Government to assume in certain circumstances the management of agricultural lands, to provide for the registration of Co-operative Farms and to make further provision for matters incidental to the aforesaid purpose." This Act was struck down by a decision of this Court in Inamdars of Sulhnagar v. Government of Andhra pradesh, , as a result of which an Ordinance Validating it was issued and later an Act, being of 1961 was passed after obtaining the permission of the President, as required by Clause (3) of Art, 31 of the Constitution. the reason for the 1950 Act being struck down was that Chapter IV beginning with Section 61 dealing with acquisition and requisition of lands brings the Act within the range of Art 31 and since it was not reserved for the consideration of the President and was not assented to by him, the proceedings initiated under that Act were held to be null and void. 13. Section 47 of the Act reads thus-"(1) Notwithstanding anything contained in any other law for the time being in force or in any decree or order of a court, no permanent alienation and no other transfer of agricultural land shall be valid unless it has been made with the previous sanction of the Tahsildar: Provided that the Tahsildar may declare a permanent alienation or any other transfer of agricultural land to be valid if the permanent alienation transfer took place before the commencement of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1954 and possession o the land transferred was given to the vendee before such commencement if application for sanction is made within one year after such commencement. (2) Applications for such previous sanction shall be made and disposed of in accordance with such procedure as may be prescribed." The proviso was added by Act 3 of 1954, which came into force on 4-2-1954. Section 48 deals with general restrictions on grant of sanction and provides that in the case of permanent alienation or transfer the Tahsildar shall not sanction the same. Firstly if the area of the land held by the alienor or transferor after the alienation or transfer would be less than a family holding determined under Section 4 for the local area concerned, provided that where the alienor or transferor as the case may be is not an agriculturist or intends to give up the profession of an agriculturist or is alienating the whole of the land in his possession or that the transfer is being made by an agriculturist for good and sufficient reasons subject to his retaining a basic holding, the requirements of sanction may be dispensed with ; and secondly if the area of the land held by the alience or transferee after the alienation or transfer would exceed three times the family holding so determined after excluding therefrom certain areas specified therein and thirdly, in the case of a mortgage, the Tahsildar shall not sanction the same if the terms of the mortgagee are such that possession of the land is to be or may be delivered to the mortgage are such that possession of the land is to be or may be delivered to the mortgagee as security for the money advanced or to be advanced. In 1959, by Act 39/59, the Legislature added Section 48-A, whereunder restrictions were imposed on permanent alienation or transfer of land acquired by a protected tenant under Section 38 or Section 38-D of the Act. In Section 49, additional restrictions were
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imposed where the alienee or transferee is a non-agriculturist. Section 50 which was added by Act 3/54 along with the addition of the proviso to Section 47 deals with cases in which restrictions imposed by Sections 47, 48 and 49 shall not apply. This section is as follows:"The restrictions imposed by Sections 47, 48 and 49 shall not apply to-(a) a permanent alienation or transfer of agricultural lands made with the previous permission of the Tahsildar for any non-agricultural use; (b) registered sales of agricultural lands before the commencement of this Act; (c) agreement to sell agricultural lands entered into before the commencement of this Act, if possession of the lands had been transferred to the vendee before such commencement in pursuance of such agreements". 14. It is contended by the learned advocates on behalf of the appellants and respondents who support the proposition that a suit for specific performance will lie and Section 53-A of the Transfer of property Act can be used as a shield to protect the possession where under agreement of sale possession is delivered to the purchaser even though no permission of the Tahsildar was obtained, that the relief sought and the defence put forward could be validly sustained because what Section 47 inhibits is permanent alienations and other transfers without the permission of the Tahsildar which means alienations and transfers according to law and not possession, while on the other hand, the learned advocates for the contrary proposition contend that the words "permanent alienation" or "other transfer" having regard to the history of legislation and what was intended to be achieved by the Tenancy Act, would include delivery or transfer of possession in whatever manner effected if it is done without the permission of the Tahsildar. 15. Sri Subbarayudu and Sri Madhava reddy, who appear for the respondent in S. A. 340/63 and for the appellant in S. A. 753/63 and for respondent in A. S. 26/63 contended that though agreement simpliciter unaccompanied by delivery of possession is not hit by Section 47 suits for specific performance can be maintained. If such an agreement is followed by possession without the prior sanction of the Tahsildar, the possession would be unauthorised and no specific performance of suit can be maintained. Mr. Madhavareddy further contends in A. s. 26/63 that if this court came to the conclusion that the trial court was wrong in law in holding that the suit for injunction is not maintainable it should remand the case for further enquiry as to whether the agreement was executed and whether possession was delivered as both these were denied. 16. Sri Waghray for respondents in S. A. 881/64, apart from the contention that no decree for specific performance can be given has contended that the appellate Court has erred in reversing the finding of the trial court. He further contends that it is for the plaintiff to show that the provisions of Sections 48 and 49 have been complied with. 17. Before we deal with the decisions which are said to be in conflict, we propose to examine the provisions of the Act to ascertain what is the true intent and purpose of Section 47 and what is intended to be prohibited if the previous sanction of the Tahsildar is not obtained, i.e., whether it is transfer of legal title or mere delivery of possession, that is prohibited. In other words does the terms "permanent alienation" and "other transfer" connote also transfer of possession. 18. The term 'permanent alienation' has been defined in Section 2 (o) to include any sale, exchange or gift and any transfer of a right of occupancy or of the patta of a holding but excluding any disposition by will. Section 2(p) defines 'prescribed' as meaning prescribed by the rules made under the Act. it may be noted that there is no definition as we have seen, includes the several kinds of transfers referred to therein namely, sale, exchange or gift which under the general law, namely the transfer of Property Act would come within the definition of transfer of property. Transfer of a right of occupancy or a patta of a holding in so far as the Land Revenue Act (Hyderabad Act 8 of 1317F) is concerned, would equally be a transfer of all that is necessary to
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effectually transfer agricultural land and vest a title in the person to whom it is transferred. It may be noted that a mere sale or conveyance effected in accordance with the general law, viz., by a written instrument duly stamped and registered if it is immoveable property of more than Rs. 100/- value by itself, in so far as agricultural land is concerned, is not completely efficacious until the patta is mutated in the name of the vendee. While a sale, exchange or gift vests legal title in the vendee on execution of the conveyance, in so far as payment of revenue to the government is concerned, it can only be recognised on the vendee's name being mutated in the registers of pattas which could be effected on the presentation of a deed of sale, exchange or gift duly executed in accordance with law. the right of occupancy it is stated by the learned advocates is the mere act of giving possession in that any person who is in possession can be said to be an occupant having a right of occupancy and therefore permanent alienation connotes a transfer of possession. It is difficult for us to accept this contention. 19. The definitions in the Land Revenue Act 8 of 1317F, have been referred to. Section 2 (8-A)defines 'occupation' as meaning possession; Section 2 (8-B) "To occupy land" means "to possess or to take possession of land." Section 2 98-C) 'occupant' means a holder in actual possession of unalienated land other than an asami shikmi; provided that where the holder in actual possession is an asami shikmi, the superior holder shall be deemed to be the occupant". Section 2 98-D) defines "occupancy" to mean a portion of land held by an occupant. These definitions in Section 2 (8-A), (8-B), (8-C) and (8-D) were added by the Record of Rights-in-land Regulation, in 1358 F. From these definitions it is sought to be contended that mere possession itself connotes occupancy and therefore a person who has a right to possession has occupancy rights. But this argument recognises the notion that possession in so far as a right of occupancy is concerned cannot be divorced from the right to possession. The latter right is something distinct from a right under an agreement which is given in contemplation o the vesting of title. It is the perfected title alone that can confer an indispensable right of possession or make it 'authorise' within the meaning of Sec. 98. If possession is given in contemplation of an effective legal conveyance on payment of the full consideration, and if the full consideration is not paid or is refused to be paid, possession will at once become wrongful or unauthorised. It cannot be said that the legislature has included in permanent alienation the term 'right of occupancy'. A reference to Section 58 of the Land Revenue Act would further show that a right of occupancy is heritable and transferable. This has reference to Section 54, under which it is provided: "Any person desirous of taking up unoccupied land must, previously to entering upon occupation, by submitting a petition to the Tahsildar, obtain his permission in writing. (2) On such a petition being submitted the Tahsildar may, subject to the rules framed by Government in this behalf from time to time, give written permission for occupation." A person who is in occupation of a land having complied with the terms of this provision would be said to have a right of occupancy, which is heritable and transferable, though, under Section 58-A of that Act, notwithstanding anything contained in Section 58, Government may, by notification in the Jarida, declare that in any village or tract of H. E. H.'s Dominions, occupancies granted under Section 54 after the date of the said notification shall not be transferable without the previous sanction of the Taluqdar. In another sense, the right of a pattadar who dies intestate and without leaving any heirs, is considered a right of occupancy of land held by a deceased pattadar, according to that section, has to be auctioned and the sale proceeds, after deducting the expenses of sale, have first to be appropriated towards payment of land revenue, if any is due, and the remainder has to be dealt with as unclaimed property. it is therefore, obvious from these provisions of the Land Revenue Act that any person who is legally entitled to be in possession, whether with the permission of the Tahsildar in respect of vacant lands under Section 54 or of a pattadar who is in possession, has a right of occupancy, which is heritable and transferable under Section 58. It is this right of occupancy that is included in the definition of "permanent alienation" in Section 2 9o0 of that Tenancy Act. Indubitably, the patta of an agricultural land itself is evidence of the right of the holder, a transfer of which is also deemed to be a permanent alienation. We do not, therefore, consider that there is any justification in the submission that both permanent alienation and other transfer would include and connote also a mere possession without the right to
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it. 20. Next it is further contended that the subsequent addition of the proviso to Section 47 would itself indicate what the Legislature meant, namely, that the Legislature had intended to validate possession and consequently, possession itself without the fulfillment of these conditions and without the permission of the Tahsildar would be interdicted. We cannot accept this contention as having any force. This proviso was added presumable to remove the hardship which may have been caused by a strict interpretation of the provisions of Section 47, that where transactions generally effected prior to the commencement of the Act not only by transfer of a valid title, but also followed by possession, if previous permission of the Tahsildar is not taken for execution of the sale deed, patta of the agricultural land would not be mutated. Any legalistic arguments that the provisions have only prospective force and not retrospective force though having validity, might nonetheless create hardship to the many transferees who may be anxious to have their pattas transferred and are met with the objection by revenue authorities that since the alienations or transfers have been effected without the prior permission of the Tahsildar, they are not valid. The addition of this proviso to Section 47 as well as Section 50 was therefore made in 1954. 21. It is further contended that if the proviso to Section 47 covered all those alienations, what was the need for Section 50. The answer is simple, namely, that it was generally intended to remove the bar of Sections 47, 48 and 19 dealing with the requirements of permission, minimum holding or restrictions where the alienee or transferee is a non-agriculturist. Under Sec. 50 (b) and (c) of the Tenancy Act, registered sales of agricultural lands before the commencement of the Act and agreement to sell agricultural lands entered into before the commencement of the Act if possession of the lands has been transferred to the vendees before such transferred to the vendees before such commencement in pursuance of the agreements of sale, are exempt from the provisions of Sections 47, 48 and 49. Mere registered sales, it may be noted, without possession, though entitling the vendee to obtain possession through Courts, might make the possession subsequent to the Act wrongful or unauthorised within the meaning of Section 98 because the alienation was without prior permission. Similarly, agreement to sell agricultural lands followed by possession without the execution of a valid document of tittle and without the prior permission of the Tahsildar, may make the alienation invalid. It is these categories of cases that are exempt. it cannot be denied that the word "other transfer" of agricultural lands in Section 47 would cover transfers other than those mentioned in the definition permanent leases etc., Which, under the Transfer of Property Act. confer rights in property, and it is, therefore, obvious that the Legislature does not want any right to e conferred in land without permission of the Tahsildar. That is the reason why in Section 48(2) it is provided that the Tahsildar is prohibited from giving sanction to a mortgage if the terms of the mortgage are such that possession of land is to be or may be delivered to the mortgage are such that possession of land is to be or may be delivered to the mortgage as security for the money advanced or to be advanced, which clearly goes to show that unfortunality mortgages with possession would have to be effected with prior consent of the Tahsidar. This conclusion also militates against the proposition that the words " other transfer" connote mere transfer of possession without a right therein. 22. Section 98 of the Tenancy Act vested a power in the Collector of summary eviction of any person unauthorisedly occupying or wrongfully in possession of land, (a) the transfer of which either by the act of parties or by the operation of law is invalid under the provision of that Act, or (b) the management of which has been assumed under the said provisions, or (c) to the use and occupation of which he is not entitled under the said provisions. if the transfer without the permission of the Tahsildar is invalid. Which satisfies the conditions in Clause (a) then the possession delivered thereunder would be deemed to be unauthorised or wrongful. the words "possession" and "transfer" have been used not as identical or synonymous terms, but as connoting different concepts. This summary remedy vested in the Collector is in consonance with the principle and policy of law, namely, that no permanent or other right in agricultural lands shall vest in any one unless it be with the prior consent of the Tahsildar. If these provisions were not incorporated therein, there is no way in which the limitations of holding or ceiling on land and the protection to be given to poor and
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indigent agriculturists from being bought out by money lenders or more powerful sections of the community could be enforced. 23. It is clear therefore that a person who is in possession of agricultural lands who is not entitled to the use or occupation of those lands under the provisions of the Act or by any valid transfer, can be said to be unauthorisedly in occupation. Even persons who dispossess a true owner under a claim of title which is not valid or a landlord who dispossesses his permanent tenant without sanction of Tahsildar would also be in wrongful possession. No assistance can be derived from the provisions of the Prevention of Agricultural Land Alienation Act, (Hyederabad Act 3 of 1349-F) though the definition of the expression "permanent alienation" under Section 2 (c) of that Act is more or less identical, except that even wills were included therein in the category of permanent alienations. The subsequent amendment in the Tenancy Act is in conformity with the provisions of general law, namely, that a will being ambulatory and operating from the death, can hardly be said to effect transfer of any rights within the meaning of the transfer of Property Act, which contemplates transfers inter vivid between living persons. Even under Section 4 of that Act, it is provided that notwithstanding anything contained in any other Act for the time being in force, no permanent alienation of land shall take effect as such, unless and until sanction is given thereto by the Tahsildar and that such sanction May be given even after the permanent alienation of land is completed in any other manner. Of course the Taluqdar's sanction under Section 4 was not necessary if the alienor does not belong to the agricultural classes, or where the alienor and the alience belong to the same agricultural group etc. it is unnecessary to consider the provisions of that section, as nothing useful would be derived therefrom, except that under the provisions of the Act, even expost facto sanction can be given, while the tenancy Act is more rigorous in that it requires the sanction of the Tahsildar as a condition precedent for the validity of a permanent alienation or other transfer. 24. An examination of these several provisions may be summed up as follows: What is prohibited and what is invalid is transfer or alienation of legal right, title or interest, which confers a right, title or interest, which confers a right to possession, of agricultural land if it is without the permission of the Tahsildar. An agreement to enter into transactions to confer such a right, title and interest, if the provisions of law are complied with, namely, after obtaining the permission of the Tahsildar, are not prohibited, nor do they by themselves confer a right to possession so that if any possession is delivered ink pursuance thereto, it cannot be said that, that possession has been delivered in conformity with the statute or in a manner that would be according recognition thereunder. 25. If our conclusion on a reading of the provisions is right, then ex facie there can be no bar to the maintain ability of a suit for specific performance of an agreement to direct the defendant (seller) to apply for permission under Section 47 and after he obtains it to execute a sale deed. This result would follow whether or not there was a specific term in the agreement that permission would be obtained under Section 47 and that thereafter, a sale deed will be executed. 26. In 1963-a Andh WR 165 (supra), the respondents had filed an application under Section 98 of the Tenancy Act before the Revenue Divisional officer, Adilabad, for eviction of the petitioner, alleging that they had sold certain lands to the petitioner under a private contract, and after the petitioner had got possession of the lands, did not give the respondents the full consideration agreed for. It was contended that inasmuch as permission under Section 47 had not been given by the Tahsildar for the alienation, the contract was invalid, and consequently it was prayed that the petitioner may be summarily evicted from the land. the defence of the petitioner was that he had purchased the lands and therefore he cannot be evicted, and at any rate, he expressed his willingness to perform his part of the contract. The Revenue Divisional Officer directed eviction, and on appeal, the Collector confirmed that order and dismissed the appeal. In the revision filed against that order, it was contended before Gopal Rao Ekbote J., relying on Sharfudding v. Sama Yelluga, 1957 (2) Akndh WR 478 that the provisions of the Tenancy Act are mainly to regulate the relationship between landlords and tenants and that the procedure of summary eviction under Section 98
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Cannot be pressed into service to evict a person in possession in terms of an agreement of sale, inasmuch as the Act did not purport to "affect the rights interest between two persons setting up rights of ownership to a particular land or the dispute between the owner and a trespasser or a person other than a tenant." The argument proceeded that under the scheme of the Act, a land-holder who wants to take possession of the land from a tenant or a protected tenant, can proceed in the manner prescribed under the Act that is, file an application before the Tahsildar, and to that extent if any question arises whether a particular tenant is a protected tenant, the exclusive jurisdiction to decide that question is also conferred on the Tahsildar, and that in such case only the Civil Court has no jurisdiction, but in all other cases where there is a dispute of title, the matter should go to the Civil Court. This contention was rejected, and it was held that the Act is comprehensive in its scope and takes within its fold what is compendiously known as 'land reforms' and not only what is called 'tenancy reforms', and that the term 'land reform' covers a variety of different policies, of which the learned Judge enumerated six varieties. At page 169, after setting out the substance of Section 47, the learned Judge observed; "Any contract of sale, which falls within the ambit of Section 47 will be invalid, if previous sanction of the Collector is not obtained and inasmuch as the transfer is invalid, the person in possession of the land will be considered to be occupying the same unauthorisedly or unlawfully. The Collector therefore, has jurisdiction to direct summary eviction of such a person. The conclusion therefore, is inescapable that under Section 98 the petitioner has a remedy and the Collector has jurisdiction to entertain the petition in those circumstances and direct summary eviction." 27. Now it is patently clear, as we have already noticed, that what section 47 prohibits is permanent alienations or other transfers of agricultural land without the previous sanction of the Tahsildar, and not the entering into contracts of sale, as such, with great respect, we cannot agree that contracts of sale fall within the ambit of Section 47 or are invalid, if previous sanction of the Tahsildar is not obtained. We may, however, state that no exception can be taken to the subsequent statement that since the possession in pursuance of the agreement of sale is invalid as there is no alienation or transfer of land with the prior sanction of the Tahsildar, a person in possession of the land will be considered to be occupying the same unauthorisedly or unlawfully, as in that case no transfer of agricultural land was purported to have been effected,and in the facts and circumstances of that case, under general law also, the possession would be unlawful, the moment the transferee commits a breach of the condition to pay the balance of consideration. This itself would empower the Tahsildar, under Section 98 to evict the person in possession who is in unauthorised occupation. Finally in dealing with a contention pressed by the learned advocate in that case that Section 98 does not destroy the petitioner's common law right to file a suit against the land-holder who has sold his land to him, Ekbote, J., said at page 169: "If he has any such right and that is de hors of the Act, he may adopt the remedies available to him. His contention that the respondents ought to have filed a regular suit, however, has no substances obviously because section 98 of the Act provides a summary remedy to him. He has chosen to avail of the remedy and no fault can be found therefor." This observation that the Tenancy Act does not debar a person from availing of any remedy which is de hors that Act, can also be supported by Sections 2(2) and 104 of the Act which saves any other laws. Section 2(2) provides: "In any provision of this Act which is expressed in whatever form words to have effect notwithstanding anything contained in any other law, the reference to any other shall be read as including only laws with respect to matters enumerated in List II in the Seventh Schedule to the Constitution of India." Similarly, Section 104 provides that the Act and any rule, order or notification made or issued thereunder shall have effect notwithstanding anything inconsistent where with contained in any other enactment with respect to matters enumerated in List II in the Seventh Schedule which are not inconsistent with the provisions of the Tenancy Act will have validity. One of us (Jaganmohan Reddy, J.) sitting singly in Pichamma v. Guraviah, 1956 Andh LT 993, was considering a case where the question was whether the jurisdiction of Civil Courts is barred from entertaining a suit under Section 9 of the Specific Relief Act for possession by reason of Section 99 of the Tenancy Act. After setting out the provisions of Section 99, it was observed : "The essential thing bars the jurisdiction of the civil courts is that which is required to be settled or decided or dealt with by a Tahsildar, Tribunal, or Collector or by the Board of Revenue or Government under the provisions of the Act. It is, therefore,
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necessary to see whether the remedy sought for by the revision petitioner is required to be settled or decided under the provisions of the aforesaid Act." After referring to Section 2(2) and Section 104 and a decision Mohd. Abdul Khader v. Sedam Asru, ILR (1955) Hyd 695= (AIR 1955 Hyd 271), it was held that a suit under Section 9 of the Specific Relief Act is outside the purview of the Tenancy Act, and as such Section 99 has no application and the civil suit is not barred. It was further held following a decision of the same High Court in Gandipalli Rama Krishna Rao v. Mucha Badrappa, ILR (1954) Hyd 855, that even to cases arising under the Indian Penal Code or Criminal Procedure Code, which are Central enactments Sections 99 does not apply and that they can be enquired into by criminal Courts in spite of a tenancy certificate granted by the Tahsildar. At page 994 it was observed: "Here the land-holder has been ejected from her possession. There is no provision in the Tenancy Act whereunder she could apply for restoration of possession and it, therefore, follows that she must have recourse to the civil or criminal law and seek remedy in a civil or criminal Court as the case may be." The view expressed by Gopal Rao Ekbote. J., that if there is any remedy available de hors the Act, the plaintiff could always avail of it, is in consonance with the view enunciated in the above case. 28. In the subsequent decision of Gopal Rao Ekbote, J., in 1965-2 Andh WR 61 (supra), the facts were the plaintiff filed a suit for declaration of his title and recovery of possession on the basis of title. The defendant resisted the suit contending, inter alia, that the plaintiff executed an agreement to sell the suit property and transferred possession in pursuance of the same and that he was entitled to protection under Section 53-A of the Transfer of Property Act. Before Gopal Rao Ekbote, J., in second appeal, it was contended that the agreement of sale without obtaining the permission of the Collector under Section 47 was illegal and that no protection can be given to such possession under Section 53-A. It was held that the contract contemplated by Section 53-A of the Transfer of Property Act is a valid and concluded contract and that if the contract is invalid under any law. Section 53-A cannot be pressed into service to protect the possession. It was further held that the provisions of Section 23 of the Contract Act attach illegality not only to transfers and alienations made in contravention of Section 47, but even to a device of an agreement to sell which, if permitted, would defeat the purpose of Section 47 and other relevant provisions of the Tenancy Act. In the result, it was held that the plaintiff would be entitled to recovery of possession of the property on payment of the amount which he received in pursuance of the agreement. No exception can be taken to the conclusions that since possession had been delivered pursuant to a contract of sale, which did not confer a right to possession ,that possession is unauthorised, Section 53-A cannot be used as defence; as such the Collector, under Section 98, could summarily evict him, and if instead of applying to the Collector the plaintiff had come to a civil Court, the result could not be any the different. However, with great respect, as we have said dealing with the earlier decision of Gopal Rao Ekbote, J., we are unable to accept the basis of the decision, namely, that Section 47 interdicts agreements to sell and that these agreements of sale were illegal under Section 23 of the Contract Act. 29. As noticed earlier, sub-section (2) of Section 47 provides that applications for previous sanction of the Tahsildar shall have to be made and disposed of in accordance with such procedure as may be prescribed. Rule 3 of the Rules made under this provision provides that an application under sub-section (2) of Section 47 requiring of a previous sanction of a permanent allenation (or other transfer, or in the case of a disposition by will, confirmation) by the Collector for agricultural land, may be made by the alienor or transferor, or testator or by the alienee or transferee, in Form I, and that it shall be signed and verified by or on behalf of the persons making it and shall be duly stamped. Rule 5 says that on receipt of an application under Rule 3, the Collector shall call upon the other party, ie., the alienor or transferor or alienee or transferee, as the case may be, to file within 15 days from the date of receipt of a notice in that behalf in Form II, a statement in Form I. The other provisions of that rule as well as rules 6 and 7 etc., deal with filing of affidavits by the alienor or alienee, settings out the economic holdings that he is prepared to sell or buy, as the case may be, and stating that he intends to take up the profession of an agriculturist, the conduct of enquiry, and Collector's satisfaction that the Government dues are paid. The Act in the first instance required permission to be obtained from the Collector, but the subsequent amendment of the Act substituted Tahsildar as the permission granting authority. It may further be noted that Item (4) of Form I requires the applicant to state whether he is the
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alienor or transferor, or the alienee or transferee, and item 5 requires particulars of name of the alienee or transferee, or alienor or transferor as the case may be, to be filled in. These rules and the Form would also indicate that there is some contractual relationship existing between the alienor and the alienee before the application for permission is made. If there is no agreement between the parties, any application by the alinee, at any rate, can have no effect, unless the alienor comes and admits that he intends to alienate the lands. Even if this can be done without a concluded agreement or contract of sale between the parties and permission is granted on the strength of a mere statement by the alienor before the Tahsildar, that permission by itself may not bind the alienor to execute a sale deed. It can easily be contended that the permission was obtained in contemplation of an agreement to be entered into between the parties, but in fact there was no concluded contract of sale. This would deprive the alienee of a right to obtain specific performance of the agreement. It could not have been the intention of the Legislature as indeed we have stated earlier, to render invalid contracts of sale which are not inconsistent with the subsequent compliance with the provisions of the Act. The relevant provisions of the Tenancy Act which we have referred to, are only regulatory and impose certain restrictions, and compliance with certain conditions. But there is no prohibition for entering into contracts of sale, as long as they do not contravene those provisions. 30. In order to invalidate an agreement, there must be an express statutory enactment prohibiting the same, or there must be something in the general law which would make the agreement invalid, and these may make the agreement itself invalid or some purpose which one or both of the parties intended to make of it. The law may also refuse to assist in any way a person who founds his cause of action upon such agreement or it may simply say that such an agreement is not to have legal effect. On the other hand, there are certain statues which do not prohibit entirely the making of a particular type of contract, but merely impose conditions as to its performance. If these conditions are not fulfilled, the party in default will not be able to sue on the contract. Anson on the "Principles of the English Law of Contract" (22nd Edn. p. 299) cities the case of Anderson Ltd. v. Daniel, (1924) 1 KB 138 where a vendor who sold fertilizer without the delivery to the purchaser of an invoice, specifically required by the Fertilizers and Feeding Stuffs Act, 1906, was unable to recover the price, as he could not rely on his own illegal performance. Such contracts are not, however, unlawful in their inception; there is nothing unlawful per se in a contract to sell fertilizer. There is no reason why the innocent party should not bring an action for non-delivery or for breach of warranty. He does not have to rely on the illegal performance in order to establish his cause of action. Their Lordships of the Supreme Court in Mrs. Chandnee Widya Vati v. Dr. C.L. Katil, , had occasion to deal with a case where the plaintiffs had entered into a contract of sale in respect of a house property in New Delhi belonging to the defendant, who built the same on a leasehold plot granted by the Government in 1935 to the defendant's predecessor-in-title. In the contract of sale, there was a term that the vendor shall obtain the necessary permission of the Government within 2 months from the date of the agreement and that if the said permission was not forthcoming within that time, it was called open to the purchasers to extend the date or to treat the agreement as canceled. The trial Court had held that the agreement was inchoate in view of the fact that previous sanction of the Chief Commissioner to the proposed transfer had not been obtained, and that therefore, no specific performance of the contract could be granted. The High Court reversed that finding, holding that the agreement was a completed contract for sale, subject to the sanction of the Chief Commissioner before the sale transaction could be completed. It relied upon a decision of their Lordships of the Privy Council in Motilal v. Nanhela, AIR 1930 PC 287. It pointed out that it was the duty of the defendant to apply for the necessary permission and if ultimately the Chief Commissioner refused to grant the sanction to the sale, the plaintiffs may not be able to enforce the decree for specific performance of the contract, but that was no bar to the court passing a decree for that relief. Their Lordships of the Supreme Court agreeing with this view, observed at page 979: "On the findings that the plaintiffs have always been ready and willing to perform their part of the contract and that it was the defendant who wilfully refused to perform her part of the contract, and that time was not of the essence of the contract, the Court has got to enforce the terms of the contract and to enjoin upon the defendant-appellant to make the necessary application to the Chief
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Commissioner. It will be for the Chief Commissioner to decide whether or not to grant the necessary sanction." 31. Whether there was a specific condition in the agreement for obtaining the permission or not, the result, in out view, would be the same, for the seller is bound to do everything in his power to effect a valid sale. We are, therefore, clear in our minds that the provisions of the Tenancy Act do not specifically or otherwise make contracts of sale invalid. Even where, in Tenancy Laws there is a condition that a valid alienation can be effected only on the fulfillment of certain conditions relating to ceiling, it was held by a Bench of the Mysore High Court in Neminath Appayya v. Jamboora, AIR 1966 Mys 154, that the agreement were not invalid, but are enforceable. That was a case where the plaintiff sued for specific performance of an agreement of sale executed by the defendant in his favour, under which he agreed to convey to plaintiff certain lands. Section 34 of the Bombay Tenancy and Agricultural Lands Act (67 of 1948) prohibits a person from holding land in excess of the ceiling area. This section is subject to Section 35, which declares that where the area of land in the possession of a person exceeds the ceiling area, in consequence of an acquisition made by any of the modes or processes referred to by it, the excess acquisition would be an invalid acquisition It was held, that the nullification of only the excess acquisition which is the limited aim of the section does not fit into the theory that it prohibits an agreement of sale whose implementation might assist the purchaser to be in possession of land exceeding the ceiling area; that there is nothing either in Section 34 or Section 35 expressly or impliedly prohibiting any such agreement of sale; that the agreement would fall within the third paragraph of Section 23 of the Contract Act only when it was possible to say that such illegal acquisition was the inevitable and necessary consequence of the performance of the agreement; that if such is not the position and by reason of many things which are possible, the plaintiff who wishes to sue on the agreement can ask for delivery of possession of the property which had been agreed to be sold to him without such delivery of possession producing any illegal acquisition to which Section 35 refers, the performance of the agreement would not defeat the provisions of the law, and that such an agreement can therefore, be enforced. By a parity of reasoning, in this case in our view, there is nothing in the contracts of sale of agricultural lands which contemplate performance of an unlawful act or that an unlawful or illegal act is a necessary consequence of the agreement. In Vita Food Products Incorporated Ltd. v. Unus Shipping Co. Ltd.. (1939) A. C. 277 Lord Wright observed at p. 293: "Each case has to be considered on its merits. Nor must it be forgotten that the rule by which contracts not expressly forbidden by statue or declared to be void are in proper cases nullified for disobedience to a statue is a rule of public policy only, and public policy understood in a wider sense may at times be better served by refusing to nullify a bargain save on serious and sufficient grounds. 32. It is therefore, apparent, and has been admitted by both Sri Subbarayudu and Sri K. M. R eddy that a mere agreement to sell simplicter, not followed by possession. can be enforced by a suit for specific performance and that is also our view on an examination of the various provisions and the law on the subject. Contract of sale followed by possession, under the general law, would, subject to the fulfilment of the requirements of Section 53-A of the Transfer of Property Act, have enabled a person in possession to use it as a shield to defend his possession. But having regard to the provisions of Section 47 read with Section 98, in the view we have taken, no right to possession capable of being upheld under the special enactment can be conferred by means of a permanent alienation or other transfer, unless the prior permission of the Tahsildar is obtained. For the purpose of Section 53-A not only should there be a valid contract of sale, but the transferee should in part performance of the contract, take possession of the property or any part thereof or the transferee being already in possession, continues in possession in part performance of the contract and has done some act in further acne of the contract, and further that the transferee has performed or is willing to perform his part of the contract. If any of these conditions are not fulfilled, the defence of Section 53-A will not be available. The possession refereed to here is lawful possession, not unauthorised or unlawful or wrongful possession. It is not necessary to negative the defence of Section 53-A that the contract of sale should also be void or illegal. Though the contract is lawful, as indeed we have held it so, since possession without the prior sanction of the Tahsildar in terms of the decree, a sale deed will have to be executed by him, or if not by him, by the Court, in which case the possession of the vendee would be legal. For these reasons, we are unable to agree with the
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decision of Munikanniah, J. in (supra), that the defence of Section 53-A would be available to a person who has entered into possession under a contract of sale without a valid right to possession under a permanent alienation or other transfer effected without obtaining the sanction of the Tahsildar. With great respect, we dissent from this decision. 33. Our views also supported by a judgment of Chandrasekhara Sastry. J., in C. R. P. 2046/63 dated 21-7-1946, short notes of which case were reported in 1964-2 Andh WR (SN) 43 (supra). In that case the question for determination was whether the agreement of sale is illegal without the previous sanction of the Tahsildar and whether a suit for specific performance is maintainable. The learned Judge referred to certain observations of Gopal Rao Ekbote. J., in 1963-1 Andh WR 165 (Supra), to which we have already adverted, and stated that the real question that was decided by Gopal Rao Ekbote J., in that case whether the remedy of the land-holder was only to file a regular suit for eviction in the civil Court or whether he could avail himself of the summary remedy provided by Section 98 of the Tenancy Act upon agreements of sale as defeating the provisions of Section 47 of the Tenancy Act. In dealing with these matters, he considered the decision Krishna Rao J., in (supra), who held that a suit for specific performance of an agreement to sell agricultural lands for which previous sanction of the Tahsildar is not obtained, is maintainable and that Section 47 does not bar such a suit. Following the decision of the Supreme Court in (Supra), Chandrasekhara Sastry, J., upheld the decision of the lower Court which decreed the suit for specific performance; and dismissed the revision petition. Subsequently in another case in (Supra), Krishna Rao, J. referred to the decision of Gopal Rao Ekbote, J., in 1965-2 Andh WR 61 (Supra) and stated that his decision in (Supra) he is unable to subscribe to the view that such an agreement Os sale is void. 34. It follows, therefore, that if possession is wrongful or unauthorised, Gnostic for a permanent injunction or for delivery of possession can be brought. But where in a suit for specific performance, the plaintiff who is in possession, asks for an injunction restraining the defendant from applying or the Tahsildar under Section 98 of the Tenancy Act for summary eviction, an injunction can be granted pending the suit, till such time as a decree is not passed, or if a decree is passed granting specific performance, till such time as permission under Section 47 is not refused. 35. On these conclusions, we will not deal with the appeals individuality. S.A. 340/63 arises out of a suit for permanent injunction. The suit is not maintainable, and the second appeal is accordingly dismissed with costs. 36. S.A. 541/63 is an appeal arising out of a suit for specific performance, in which both the Courts concurrently held that the agreement was true and that possession was given, but that the transaction is hit by Section 47. In the view we have taken the second appeal is allowed, the judgments and decrees of the Courts below are set aside and the suit is decreed with costs throughout, directing the defendant to apply for permission under Section 47 and on permission being granted, to execute a sale deed. 37. S.A. 541/63 is also allowed, and the decree of appellate court is set aside and that of the trial court decreeing the suit for specific performance restored. The appellant will have his costs both here and the Court below. 38. S.A. 753/63 which arises out of a suit for declaration of right and possession, on the ground that the defendant is in unauthorised occupation as the alienation made is without the permission of the Tahsildar the decree of the District Judge on appeal, reversing that of the trial Court which dismissed it, is confirmed. The defendant-appellant can have no right of defence under Section 53-A. The appeal is accordingly dismissed
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with costs. 39. S.A. 881/64 arises out of a suit for specific performance of an agreement of sale. The agreement contains a clause that the vendor will apply for and obtain permission of the Tahsildar under Section 47, but no permission was obtained. Sri Upendralal Waghray for the respondent contends firstly that no decree for specific performance can be given compelling the defendant to file a petition under Section 47, without the plaintiff showing that the provisions of Sections 48 and 49 relating or minimum holding etc., have been complied with; secondly, that the appellate Court has referred in reversing the finding of the trial Court that there is no evidence of execution of the agreement of sale Ex. A-1, and the same should be reversed as it is perverse; and thirdly, that if Section 53-A of the Transfer of Property Act cannot be availed of as a necessary corollary the suit for specific performance cannot be decreed. On the first point, it is obvious that when an application is filed for permission, it is for the Tahsildar to go into that question, since the revenue records are available with him, and a duty has been imposed upon him to satisfy himself on an enquiry whether provision of sections 48 and 49 have been complied with. A civil Court is not granting permission to sell or purchase; all that it is concerned with is to direct the defendant to apply for permission and on the permission being obtained, to execute a sale deed. That apart, this point has not been taken either in the suit or before the appellate Court; nor has it been taken as one of the grounds of appeal. On the second question, we cannot interfere in second appeal with the findings of fact; nor have we the least doubt that, that finding has been properly arrived at after a due appreciation of the evidence. The third point also, in our view, has no validity, having regard to what we have stated above. There is nothing inconsistent with the grant of specific performance in the manner stated by us. 40. Sri Upendralal Waghray has urged a further contention based on Section 50-B of the Tenancy Act introduced by the Amending Act introduced by the Amending Act, 6 of 1964. Section 50-B (1) is as follows:Notwithstanding anything in this Chapter, where any alienation or other transfer of agricultural land took place on or after the 10th June 1950, but before the 21st February, 1961, and where possession of such land was given to the alienee or transferee before the 21st February, 1961, he may, within one year from such date as may be prescribed, apply to the Tahsildar for a certificate declaring that such alienation or transfer is valid". The other provisions of that section deal with procedure to be followed on receipt of such an application. On the basis of this provision, he contends that the only course open to the vendee was to apply to the Tahsildar within one year from the date of the commencement of the amending Act, and that the civil Court has no jurisdiction to entertain a suit in respect thereof, as the exclusive jurisdiction under Section 99 is vested in the Tahsildar alone. It is not possible to read this Section as ousting the jurisdiction of the Civil Court. This provision is intended to legalise de facto transfers even without resort to Section 47. This being the intention of the amending legislation, and there being no express prohibition ousting the civil Court's jurisdiction, the civil Court's jurisdiction is not barred. Once the impediment under Section 47 is taken away, there is no bar for a party from approaching a civil Court for an alternative though expensive remedy, as its jurisdiction is not taken. Apart from this, this point was not raised in nay of the Courts below, and, if it has been raised, the purchaser would have had a choice to have resource to Section 50-B within one year after the commencement of the amending Act. This argument therefore, fails. The appeal is dismissed and the decree of the learned Chief Judge, City Civil Court, granting specific performance, id confirmed. The respondent will have his costs in this appeal. 41. A. S. 26/63 arises out of a suit for perpetual injunction. The suit as framed does not lie, and the appeal is accordingly dismissed with costs. Since we are dismissing the appeal, the further contention that there should be a finding on the question whether the agreement was executed and whether possession was delivered, need not be gone into.
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42. C. R. P. 1792/66 is also dismissed with costs, as the orders of both the Sub-Collector as well as the Collector, directing summary eviction under Section 98 cannot be interfered with, as there can be no alienation without the prior permission of the Tahsildar. In cases where we have allowed specific performance, four months' time is granted to the defendant to make the application. 43. Order accordingly.

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