ivil Appeal No 2597 of 1983
From the Judgment and Order dated the 27th October 1980 of the Allahabad High Court in Second Appeal No 567 of 1973
KV Vishwanathan SR Setia KV Venkataraman and CS Vaidyanathan for the Appellants
Yogeshwar Prasad PK Bajaj Ms Rachna Gupta Ms Rani Chhabra for the Respondents
The Judgment of the Court was delivered by KN SAIKIA J
This appeal is from the Judgment of the Allahabad High Court dated 27101980 in Second Appeal No 567 of 1973 allowing the appeal and decreeing the suit of the first respondent for specific performance of contract dated 541966 wherein it was stipulated that the defendant No 1 second respondent had executed a fictitious sale deed dated 291966 for Rs1000 in favour of defendant No 2 Kalawati in respect of half of the suit chak and another sale deed dated 21121966 for Rs2000 in favour of defendant No3 Mithilesh Kumari
Accordingly the plaintiff first respondent prayed for directing the defendants 2  3 appellants herein to execute the required sale deed in case it was not possible for the court to get it executed by defendant No 1
The first respondent Feteh Bahadur sued the second respondent 703 Jang Bahadur and the appellants in OS No 278 of 1970 for specific performance of his contract whereunder the second respondent Jang Bahadur had agreed to sell his chak No 249 admeasuring 10 bighas 12 biswas and 10 biswansis to the first respondent of Rs 5000 out of which Rs 4000 were paid and the balance Rs 1000 to be paid within 5 years whereafter second respondent Jang Bahadur was to execute a sale deed in favour of the first respondent Fateh Bahadur
The Court of Munsif Fatehpur decrced the suit only for recovery of Rs 4850 plus pendent lite and future interest on Rs 4000
Fateh Bahadur s apeal therefrom having been dismissed by the Civil Judge he preferred second appeal No 567 of 1973 in the High Court of Judicature at Allahabad contending that the transfers in favour of defendant NOs
2  3 the appellants herein by Jang Bahadur were in contravention of the provision of Section 168 A of the UP Zamindari Abolition and Land Reforms Act 1950 UP Act No 1 of 1951 hereinafter referred to as the Act  and thus were void and that the view taken by the lower court that the title of Jang Bahadur came to an end since void transfers were made in favour of appellants Kalawati and Mithlesh Kumari and thus Jang Bahadur was no longer the holder of any title which could be conveyed to Fateh Bahadur was erroneous in law
Reliance was placed on a decision of the High Court in Parmanand vs Board of Revenue UP Allahabad reported in The defendants 2  3 who are appellants herein contended that the two transfers made by Jang Bahadur in their favour were not hit by the provision of Section 168 A of the Act inasmuch as the transfers were of a portion of the shares of Jang Bahadur in the plot in dispute
It was urged that for a transfer being hit by provision of Section 168 A of the Act the same should be in respect of a specific piece of land and not a share in a holding
Reliance was placed on a decision of the same High Court in Bibhuti vs Kashi Ram 1977 AWC 491
It was not disputed that the area of land transferred under the two sale deeds in favour of appellants Kalawati and Mithlesh Kumari amounted to fragments under the Act
The High Court considered the question as to whether a transfer which had been made not of the entire share of a holder in a holding but of a fragment would be hit by the provisions of Section 168 A of the Act and took the view that the two transfers made in favour of Kalawati and Mithlesh Kumari were clearly hit by the provisions of Section 168 A of the Act in view of the provisions of sub clause 2 of that section and that the benefit of Kalawati and Mithlesh Kumari only if the sale deeds executed in their favour could be looked into and as those sale deeds were void in the 704 eye of law it would be presumed as if no legal transfer took place in their favour and there being no legal transfer no question of applicability of Section 43 of the Transfer of Property Act arose
As Jang Bahadur executed the agreement of sale in favour of Fateh Bahadur and as the sale deeds in favour of Kalawati and Mithlesh Kumar were held to have been void Fateh Bahadur according to the High Court was entitled to a decree of specific performance against Kalawati and Mithlesh Kumari on payment of Rs 1000 within a period 2 months from the date of receipt of the record in the trial court failing which the court would execute the sale deed in favour of the plaintiff
The appeal was accordingly allowed and the suit decreed as above
Mr KV Vishwanathan the learned counsel for the appellants submits that the sale made by Jang Bahadur to the 2nd appellant Kalawati on 291966 being hit by the provisions of Section 168 A of the Act the subject matter of transfer ie 5 bighas 6 biswas and 5 biswansis of Plot No 249 in village Kichakpur got vested in the Government and the interest of Jang Bahadur in that part of the holding stood extinguished on the date of transfer ie 291966 that the sale made to Kalawati being void Jang Bahadur was left only with 5 bighas 6 biswas and 5 biswansis in Plot No 249 of village Kichakpur
Jang Bahadur having transferred that whole or entire portion to the first appellants Mithlesh Kumari by sale deed dated 21121966 such transfer being a transfer of the whole area of the Bhumidhar it would be covered by the proviso under Section 168 A and as such the sale would not be hit by the provisions of Section 168  that Sections 166 167168 168 A and 189 aa form a scheme and if the sale is hit by the provision of 168 A the result would be that on the date of sale the interest of the vendor in the subject matter of sale would stand extinguished under Section 189 aa and hence 189 aa is the provision which extinguishes the right of the vendor in that part of the holding which he contracted to sell in violation of Section 168 A and that the interest of the transferee would stand extinguished under Sections 167  168 when the Gaon Sabha or the landholder ejects the transferee from the premises
According to counsel harmoniously construing Sections 168 and 189aa it would be amply clear that while 189aa extinguishes the interest of the vendor on that part of the property which he contracted to sell in violation of 168 A on the date of transfer itself the interest of the transferee would be extinguished on ejectment from the suit premises and the High Court erred in directing the appellants to specifically execute the sale deed in favour of the first respondent
Ms Rachna Gupta the learned counsel for the first respondent
705 submits that as the sale deeds in favour of the two appellants have been held to be void the High Court rightly decreed the suit for specific performance against them on payment of the balance or Rs1000 and that he having been in possession of the land and the second respondent s fragmented sales having been found to be void even if the land would vest in the State the first respondent would not be divested automatically and the State has to seek possession in accordance with the law
The only question that falls for determination is what would be the effect of the two fragmented sales in favour of the appellants
In other words whether as a result of the two sales the entire holding of the bhumidhar Jang Bahadur would vest in the State or only the half in the first sale would vest in the State and the remaining half would thereafter constitute the whole in the hand of the bhumidhar Jang Bahadur and the second sale being of the whole of his remnant holding would be valid so as to convey and transfer right to the vendee Mithlesh Kumari
There is no dispute that the land of 10 bighas 12 biswas and 10 biswansis was itself a fragment as defined in clause 8a of Section 3 of the Act being less than 3125 acres
There is also no dispute that the suit land is in a consolidated area and that the appellants were not tenure holders
It would therefore follow that the two halves sold to the appellants were fragments of a fragment
The Act was passed as it was considered expedient to provide for the abolition of the Zamindari system which involved intermediaries between the tiller of the soil and the State in Uttar Pradesh and for the acquistion of their rights title and interest and to reform the law relating to land tenure consequent upon such abolition and acquisition and to make provision for other matters connected therewith
The original Act did not define fragment
The definition of fragment  was added by Section 2 of the UP Act XVIII of 1956 with a view to prevent fragmentation and promote consolidation of holdings in order to avoid uneconomic units
Sections 152 to 175 of the Act dealt with transfer
Section 152 provided The interest of a bhumidhar with tranferable rights shall subject to the conditions hereinafter contained be transferable
2 Except otherwise expressly permitted by this Act or 706 any other law for the time being in force the interest of a bhumidhar with non transferable rights shall not be transferable
3 A bhumidhar referred to in sub section 2 may in such circumstances as may be prescribed mortgage without possessions his interest in his holding as security for a loan taken from the State Government by way of taqavi or from a cooperative society or from the State Bank of India or from any other bank which is a scheduled bank within the meaning of clause e of Section 2 of the  or from the Uttar Pradesh State Agro Industrial Corporation Limited and may also transfer by way of gift the interest in his holding except the part thereof which has been so mortgaged to a recognised educational institution for any purpose connected with instructions in agriculture horticulture and animal husbandry
 The interests of sirdar or asami were originally not transferable as Section 153 said Except as expressly permitted by this Act the interest of a sirdar and asami shall not be transferable
 Sections 154 to 170 dealt with transfer of land by bhumidhar
Section 166 originally provided that any transfer made by or an behalf of a sirdar or asami in contravention of the provisions of that chapter was to be void
Section 166 has undergone amendments
The section was substituted by the present section by UP Act No XX of 1982 with effect from 361981
The present section says Every transfer made in contravention of the provisions of this Act shall be void
 What was the position in 1966 on the dates of the instant sales has to be known and correctly applied
Section 167 earlier provided for the consequences of void transfers in the following language 167
1 Where a sirdar or asami has made any transfer in contravention of the provision of this Act the transferee and every person who may have thus obtained possession of the whole or part of the holding shall be liable to ejectment on the suit of the Gaon Sabha or the landholder as the case may be
2 A decree for ejectment under sub section 1 may direct the ejectment of the sirdar or asami from the whole or part of the holding as the Court may having regard to 707 the circumstances of the case direct This section was also substituted by the same Act No XX of 1982 with effect from 361981
Section 167 now says 1671 the following consequences shall ensue in respect of every transfer which is void by virtue of Section 166 namely a the subject matter of transfer shall with effect from the date of transfer be deemed to have vested in the State Government free from all encumbrances b the trees crops and wells existing on the land on the date of transfer shall with effect from the said date be deemed to have vested in the State Government free from all encumbrances c the transferee may remove other movable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed
2 Where any land or other property has vested in the State Government under sub section 1 it shall be lawful for the Collector to take over possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom
For the purposes of taking over such possession or evicting such unauthorised occupants the Collector may use or cause to be used such force as may be necessary
 The position before the amendment has been shown to us to enable us to apply the relevant law to the facts of the case
Section 168 which dealt with consequences of ejectment under Section 167 has been omitted by UP Act No VIII of 1977 with effect from 2811977
What was the provision in 1966 is not clear to us
We are told that the section stood as follows in 1966 section 168
Consequences of ejectment under section 167
All the rights and interests of the sirdar and asami upon ejectment in a suit under section 167 in the holding or part thereof or in any improvement made therein or to get compensation for such improvements shall be extinguished
 But we have not been shown the enactment
708 Section 168 A was added by Section 9 of UP Act XVIII of 1956 subject to the saving contained in Section 23 thereof
This section now says 168 A Transfer of fragments
Notwithstanding the provisions of any law for the time being in force no person shall transfer whether by sale gift or exchange any fragment situate in a consolidated area except where the transfer is in favour of tenure holder who has a plot contiguous to the fragment or where the transfer is not in favour of any such tenure holder the whole or so much of the plot in which person has bhumidhari rights which pertains to the fragment is thereby transferred
2 The transfer of any land contrary to the provisions of sub section 1 shall be void
3 When a bhumidhar has made any transfer in contravention of the provisions of sub section 1 the provisions of Section 167 shall mutatis mutandis apply Section 168 A has undergone amendment by Section 2 of UP Act XXVIII of 1961 when for the words whole of the plot to which the fragment pertains is hereby transferred the present words the whole or so much of the plot in which the person has bhumidhari rights which pertains to the fragment is hereby transferrd were substituted
This amendment would not affect the instant case
Some words between 167  and shall  were omitted by UP Act XIII of 1977 with effect from 2811977
It may be necessary to know what those were
Sub section 1 of Section 168 A begins with a non obstante clause and it over rides the provisions of any law for the time being in force
The expession no person  would include the bhumidhar
The object of the section is to prevent fragmentation of land situated in a consolidated area and transfers that would result in fragmentation or further fragmentation shall be void and to such transfers Section 167 will mutatis mutandis be applicable
This section comes into play only when a fragment situated in a consolidated area is transferred
If transfer of a fragment is made in favour of tenure holder who has a plot contiguous to the fragment the purpose of law is not defeatd inasmuch as it will be consolidated with the contiguous plot of the transferee
When the land held by a person in a consolidated area is already a fragment then as was provided previous to the amendment in 1961 the whole of the plot to which the fragment pertained was to be 709 transferred
After the amendment the invalidity and applicability of Section 167 is limited to a case where the transfer is not in favour of any such tenure holder and to the whole or so much of the plot in which the person has bhumidhari rights which pertains to the fragment is thereby transferred
If the transferor had bhumidhari rights on the whole of the fragment the whole has to be transferred
If the person has bhumidhari rights only in a part of the plot that part on which he has bhumidhari rights can be transferred
The part on which the person has not bhumidhari rights is not covered by the provisions not because that would not result in further fragmentation but because he had transferable bhumidhari rights only on that portion and not on the other portion
There is no doubt that under sub section 2 transfer of any land countrary to the provisions of sub section 1 shall be void and under sub section 3 the provisions of section 167 shall mutatis mutandis apply
Section 189 deals with extinction of the interest of a bhumidhar with transferable rights and Section 190 deals with extinction of the interest of a bhumidhar with non transferable rights
Section 189 earlier provided 189
The interest of a bhumidhar in his holding or any part thereof shall be extinguished a when he died intestate leaving no heir entitled to inherit in accordance with the provisions of this Act b when the land compromised in the holding has been acquired under any law for the time being in force relating to the acquisition of land or c when he has been deprived of possession and his right to recover possession is barred by limitation The words bhumidhar with transferable rights were substituted in the first sentence by UP Act XVIII of 1977 with effect from 2811977
Clause aa was added by Section 50 of UP Act XXXVII of 1958 so that the amended section now reads 189
Extinction of the interest of a bhumidhar with transferable rights
The interest of a bhumidhar with transferable rights in his holding or any part thereof shall be extinguished 710 a when he dies intestate leaving no heir entitled to inherit in accordance with the provisions of this Act aa when the holding or part thereof has been transferred or let out in contravention of the provisions of this Act b when the land comprised in the holding has been acquired under any law for the time being in force relating to the acquisition of land or c when he has been deprived of possession and this right to recover possession is barred by limitation
 The substitution of the words bhumidhar with transferable right for the word bhumidhar would not make any difference when the bhumidhar had transferable rights but would make a difference where the bhumidhar has also lands with non transferable rights
Thus under the amended provisions the interest of a bhumidhar with transferable rights in his holding or in part thereof shall be extinguished when the holding or part thereof with bhumidhari rights has been transferred or let out in contravention of the provisions of the Act
In other words when he had bhumidhari rights on the entire holding and the same is transferred or let out in contravention of the provisions of the Act his interest shall be extinguished
If he had bhumidhari right only on a part thereof and it has been transferred or let out in contravention of the provisions of the Act his interest in bhumidhari right in that part shall be extinguished
The reason behind the provisions to make fragmentation is the need to prevent further fragmentation if the bhumidhar with his bhumidhari rights over a fragment tries to transfer the fragment his right over the fragment is extinguished
Will the same by the result if instead of transferring the entire fragment he transfers a fragment of a fragment If only a fragment of a fragment is so transferred would the whole fragment be vested in State Applying the law to the facts of the case in hand we find that the bhumidhar Jang Bahadur s land admeasuring 10 bighas 12 biswas and 10 biswansis was itself admittedly a fragment
Jang Bahadur entered into an agreement to sell the land on 541966 and the first respondent Fateh Bahadur on payment of advance of Rs 4000 is stated to have had possession of the land
That sale would attract the provisions of Section 168 A if it resulted in transfer of the fragment
The sales to the appellants
Kalawati defendant No 2 was dated 291966 and to Mith 711 lesh Kumari defendant No 3 was dated 21121966
These two sales would be covered by the old provisions of sections 166 and 167 which sections did not deal with the case of bhumidhar but only by sirdar or asami
But Section 168 A would be attracted and the provisions of Section 167 would mutatis mutandis be applicable
The High Court did not examine the facts of the case in light of the laws prevailing at the time of the sales
If the sales were in contravention of the provisions of law so as to entail invalidity of the sale and vesting of the land sold in the State the question whether in such a case specific performance of the contract would be justified or not would also be germane
While holding both the sales to the appellants to have been void the High Court did not take into consideration the exception as to transfer of the whole or so much of the plot in which the person has bhumidhari rights
 The High Court also failed to notice and apply clause aa of Section 189 which was added by Section 50 of UP Act XXXVII of 1958 and was applicable to the case
Festinatio justitiae est noverea informateeni
Hob 97 Hasty justice is stepmother of misfortune
Injustum est nisi tota lege inspecta de una aliqua ejus particula proposita judicare vel respondere
It is unjust to decide or respond to any particular part of a law without examining the whole of the law
But we are in time constraint
By consensus with the learned counsel for the parties we set aside the impugned order and remand this case to the High Court for disposal in accordance with the law applicable to the facts of the case expeditiously
The appeal is disposed of accordingly
We leave the parties to bear their own costs
VPR Appeal disposed of


Summary:
The State Transport Authority Bihar invited application for grant of Stage Carriage permits for the route named Bhukunda Chaibasa via Patratu Pithoria Kanke Ranchi Chakradharpur part of which that is Ranchi Chaibasa is covered under a notified Scheme dated 141960 duly in force under the Act
The Bihar State Road Transport Corporation a State Undertaking filed its objections claiming that no private operator could be permitted to operate the said route as part of the route being Ranchi Chaibasa was itself a notified route and grant of permits on the route in question would contravene the notified Scheme
Taking the view that the over lapping Ranchi Chaibasa route was restrictedly notified for direct services only the objections raised by the Corporation were rejected and permits for the route in question granted to respondents 3 and 4
Corporation s appeal to the State Transport Appellate Tribunal and thereafter Writ Petition before the Patna High Court being unsuccessful it has come in appeal by special leave against the judgment of the High Court dismissing the Writ Petition in limine
Allowing the appeal and quashing all the three orders this Court
HELD In the light of the observations made in Constitution 668 Bench decision of this Court in Adarsh Travels  case defining the word route  the Ranchi Chibasa route is identified as the line of travel on which State Undertaking on nationalisation is allowed to run its vehicles
The bracketed words direct service  occuring in seriol No 7 when contrasted with entries in serial nos
1 to 6 reveal that the total route of Ranchi Chaibasa without leaving any portion stood nationalised signifying by its name that Ranchi Chaibsa route is a straight and direct line of travel which would be traversed by a vehicle by the State Transport Undertaking between two termini rendering all kinds of services
Any further interpretation would frustrate the object of Chapter IV A whereunder the scheme is prepared
672G 673B If the interpretation put by the Patna High Court in Marwari Motor Service s case to the bracketed words direct service  is to be kept valid it would frustrate the very purpose of nationalisation for any person in that event could operate on a nationalised route by adding thereto or substracting therefrom some kilometerage and keep one terminus as a point of start or a point of ending on an un notified route and put forward his willingness to submit himself to the discipline called corridor restictions  which practice has been deprecated by this Court
673E F Ms Marwari Motor Service vs Chotanagpur Regional Transport Authority and Others AIR 1973 Patna Vol 60 273 referred to
Adarsh Travels Bus Service  Another vs Stat of UP  Others 1985 Suppl 3 SCR 661 followed