H.L.Agrawal, J.

1. This second appeal is by the defendant.

2. The short question falling for decision in this case is, whether the Court below could pass a decree for specific performance of the contract for sale executed by the defendant in favour of the original plaintiff in respect of 1.68 acres of his raiyati land on 28-7-1962 in view of the restrictions imposed by Section 46 of the Chota Nagpur Tenancy Act.

3. The facts of the case are as follows :

The original plaintiff and the defendant both belong to backward classes and are residents of two different villages situate within the Pergana of Jharia. in the district of Dhanbad. The plaintiffs case is that on the 28th July, 1962 the defendant approached him (the original plaintiff having died, his heirs have been substituted in his place) and took an advance of Rs. 400.00 from him for paving off his debts and executed an agreement for sale of the land described in the schedule of the plaint in favour of the plaintiff for a consideration of Rs. 599/-. The defendant received a sum of Rs. 400.00 as advance on the same date and it was agreed that the final deed of sale would be executed by the defendant in favour of the plaintiff by 13-2-1963. The agreement has been marked as Exhibit 3 in the suit.

The further case of the plaintiff is that the defendant also put the plaintiff in possession over one of the plots, namely plot No. 3. having an area of 0-16 acre, over which the plaintiff erected boundary walls. As the defendant did not execute and register the sale deed in pursuance of the agreement aforesaid, the plaintiff instituted a title suit, after due service of notice, in the Court of the Munsif. First Court. Dhanbad.

4. The defendant challenged the genuineness of the agreement (Ext. 31 and he has given a, different story for executing a receipt of Rs. 400/-. The Court of appeal below has not accepted this defence of the defendant as correct and has held that the agreement was genuine and valid. This finding arrived at by the final Court of fact could not be challenged in this Court in a second appeal, and as such it is not necessary to give details of this aspect of the defendants case.

5. The further defence put forward by the defendant, and which has been pressed in this Court, as stated above, was that the agreement in question was hit by the provisions of Sec. 46 (1) (b) of the Chota Nagpur Tenancy Act, (hereinafter to be referred to as the Act), and, as such, the same could not be enforced.

6. The trial Court dismissed the plaintiffs suit, accepted the case of the defendant and held that the agreement (Exhibit 31 was not a genuine and valid document and that the suit was not maintainable in view of the provisions of Section 46 of the Act. On appeal, the learned Subordinate Judge has reversed both the findings of the trial Court and has held that the agreement for sale (Ext. 3) was a genuine and valid document and there was no bar in passing a decree in favour of the plaintiff for specific performance of the said agreement on account of the provisions of Sec. 46 (1) (b) of the Act.

7. In order to decide the point at issue, it will be useful to quote the relevant provision of Sec. 46 of the Act :

"46. (1) No transfer by a raiyat of his right in his holding or any portion thereof-- (a) xxxxx

(b) by sale, gift or any other contract or agreement, shall be valid to any extent."

The above restriction in the case of an occupancy raiyat, who is a member of the scheduled castes or backward classes, has been however, not made absolute and transfer has been made permissible with the previous sanction of the Deputy Commissioner. Proviso (D) to Sec. 46 reads as follows :

"an occupancv raiyat who is a member of the scheduled castes or backward classes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift, will or "lease to another person who is a member of the scheduled castes or, as t