VALMIKI J. MEHTA, J (ORAL)

1. By the present first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC), the plaintiff/appellant challenges the impugned judgment and decree dated 01.09.1999. The appellant/plaintiff had filed the suit praying for specific performance of an agreement to sell (Ex. PW-1/1) dated 13.4.1988 with respect to land measuring about 5 bighas 15 biswas bearing Khasra No. 496 situated in village Neb Sarai, Tehsil Mehrauli, New Delhi for a total consideration of Rs. 3,00,000/- of which Rs. 10,000/- was received at the time of entering into the agreement and the balance of Rs. 2,90,000/- was receivable at the time registration of sale deed. The trial court has dismissed the suit of the plaintiff/appellant.

2. The first reason for dismissal of suit was that the suit was barred by the limitation. The second reason for dismissal of the suit was that the respondent/defendant was not a Bhumidhar but an Assami under the Delhi Land Reforms Act, 1954 (hereafter “the said Act”) and thus did not have title to sell the land to the appellant. It was held that the agreement was barred by virtue of Sections 32 and 45 of the said Act.

3. On the issue of limitation, the trial court has observed that the sale deed was to be executed within four months of the entering into of the agreement to sell dated 13.4.1988. This period of four months is stated in the legal notice dated 20.6.1991, which is Ex. PW-1/2, issued on behalf of the appellant wherein in para 2 it is specifically mentioned that the sale deed had to be executed and registered within four months of the date of agreement to sell dated 13.4.1988. Clearly, no fault can therefore be found with the judgment of the trial court because the suit in this case ought to have been filed by 13.4.1991 but the suit was filed on 16.12.1991. No argument of much substance to challenge this finding and conclusion by the trial court has been raised before me by the counsel for the appellant so as to enable this Court to interfere in this finding on the issue of limitation.

4. The second issue for dismissing the suit was that the respondent was not a Bhumidhar but only an Assami and hence had no title which could be sold. A Bhumidhar is in effect a perpetual tenant under the Government whereas an Assami is only a tenant of the perpetual tenant i.e. a sub-tenant. The rights of an Assami are not transferable by virtue of Section 38 of the said Act and Section 45 of the said Act specifically lays down that transfer made in contravention of the said Act shall be void. It is an undisputed fact that the respondent is an Assami and till the date of passing of the impugned judgment and decree his rights have not crystallized as that of a Bhumidhar. There is no clarity even today as to the status of the respondent as a Bhumidhar of the the subject land. Accordingly, no fault can therefore be found with respect to the conclusion of the trial court holding that neither the respondent had title to the land being transferred and also that the agreement was barred by the provisions of the Delhi Land Reforms Act. Paras 24 and 25 of the judgment of the trial court dealing with the second issue reads as under :

“24. Now reverting back to the second aspect viz the effect of defendant being „Assami?. Reference to section 32 of the Delhi Land Reforms Act 1954 would suffice. The said section 32 of the Act provides that the interest of a „Assami? shall not be transferable except as expressly permitted by the Act. I have not been able to find any provision in the Act permitting the transfer of rights by „Assami? except section 91 which permits hypothecation of produce by „Assami? towards payment of rent. It is needless to mention that hypothecation involves transfer of interest.

25. Apart from the above section 45 of the Act specifically lays down that any transfer made by or on behalf of the „Assami? in contravention of the provisions of the Act shall be void. The effect of such transfer being v

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