Judgement

SHAH, J. :- The appellant agreed to sell to the respondent Survey Nos. 5 and 12 of village Pattihal in District Belgaum, Mysore State, admeasuring 41 acres 26 gunthas of jirayat land for Rs. 32,000. The appellant having failed to execute a conveyance of the land, the respondent commenced an action in the Court of the Civil Judge, Senior Division, Belgaum, for a decree for specific performance of the agreement and for possession of the land. The Trial Court dismissed the suit holding that the agreement, if enforced, would result in "transgression of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948". In appeal, the High Court of Mysore granted a decree for specific performance. With certificate granted by the High Court, this appeal has been preferred by the appellant.

2. The Trial Court and the High Court have concurrently found that the appellant failed to prove that the contract was abandoned by mutual agreement and nothing more need be said about the plea raised by the appellant. Two questions survive for decision in this appeal;

(1) Whether enforcement of the contract would result in transgression of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948; and

(2) Whether the civil Court had jurisdiction to entertain the suit for specific performance.

(3) By section 5 of the Bombay Tenancy and Agricultural Lands Act 67 of 1948, as it stood at the relevant time, it was provided;

"(1) For the purposes of this Act, the ceiling area of land shall be-

(a) 48 acres of Jirayat land, or

(b) 24 acres of seasonally irrigated land or paddy or rice land, or

(c) 12 acres of perennially irrigated land.

(2) where the land held by a person consists of two or more kinds of land specified in subsection (1), the ceiling area of such holding shall be determined on the basis of one acre of perennially irrigated land being equal to two acres of seasonally irrigated land or paddy or rice land, or four acres of jirayat land. "

(3A) Section 34 (1) of the Act provided;

"Subject to the provisions of Section 35, it shall not be lawful, with effect from the appointed day, for any person to hold, whether as owner or tenant or partly as owner and partly as tenant, land in excess of the ceiling area."

The expression "to hold land" is not defined in the Tenancy Act. It is defined in the Land Revenue Code, and by virtue of Section 2 (21) of the Tenancy Act it has the same meaning which it has under the Bombay Land Revenue Code, 1879, i.e., "to be lawfully in possession of land, whether such possession is actual or not": Section 3 (11) of the Bombay Land Revenue Code, 1879 Section 35 provided that :

"where on account of gift, purchase, assignment, lease, surrender or any other kind of transfer inter vivos or by bequest except in favour of recognised heirs and land comes into the possession of any person and in consequence thereof, the total land held by such person exceeds the area, which he is authorised to hold under Section 34, the acquisition of such excess land shah be invalid.

Explanation.-* * * *"

The material part of S. 84C provided:

"(1) Where in respect of the transfer of acquisition of any land made on or after the commencement of the Amending Act, 1955, the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of this Act, the Mamlatdar shall issue a notice and hold an inquiry as provided for in Section 84B and decide whether the transfer or acquisition is or is not invalid.

(2) If after holding such inquiry, the Mamlatdar comes to a conclusion that the transfer or acquisition of land is invalid, he shall make an order declaring the transfer or acquisition to be invalid.

3. On the declaration made by the Mamlatdar under sub-section (2),-

(a) the land shall be deemed to vest in the State Government, free from all encumbrances lawfully subsisting thereon on the date of such vesting, and shall b