The rights of a transferor are extinguished on the date of the transfer contrary to Section 168a of the Act, and the relief of specific performance is discretionary and may not be granted if the transferee is a bona fide purchaser without notice of the agreement to sell.

( 1 ) THIS appeal, among the other questions, involves with the interpretation of Sections 166, 167, 168. 168a and 189 clause (aa) (Sect n 189 (aa) of U. P. Zamindari Abolition and Land Reforms act. 1950 (the Act) as they stood in 1966. The question is that in case of a transfer contrary to the Section 168a of the Act, when do the rights of transferor come to an end? Are they extinguished on the date of making the transfer contrary to Section 168a of the Act or upon ejectment in a suit filed by the Gaon Sabha? the FACTS

( 2 ) SRI Fateh Bahadur Singh [the plaintiff) filed a suit for the specific performance of a contract against Sri Jang Bahadur Gupta. Smt. Kalawati Devi and Mithilesh Kumari (the defendant Nos. 1, 2 and 3 respectively) with the allegations that :

* The defendant No. 1 was the owner of the plot (Chak) No. 249 (area 10 bigha 12 biswa 10 biswansi ). He contracted to sell it to the plaintiff within five years by an unregistered contract to sell dated 5. 4. 1966 for Rs. 5. 000, out of which Rs. 4. 000 was given as the earnest money. * The defendant No. 1 sold half share in plot No. 249 to the defendant No. 2 for Rs. 1. 000 on 2. 9. 1966 (the first sale deed) and remaining half in favour of the defendant No. 3 on 21. 12. 1966 for Rs. 2,000 (the second sale deed ). These sale deeds, apart from other reasons, are illegal as they are of a fragment in a consolidated area and are hit by Section 168a of the Act. * The plaintiff came to know about the sale deeds in the month of May, 1970, when he received the notices for mutation in respect of the sale deeds and thus filed the suit for specific performance of his contract.

( 3 ) THE case went to the Apex Court once and has come back on remand. The defendant No. 1 did not put appearance in any of the Courts. Only the defendant Nos. 2 and 3 are contesting the suit. They allege that :

* There is no agreement to sell in favour of the plaintiff. * They are bona fide purchasers, for valuable consideration, and without knowledge of the agreement to sell. * The sale deeds are not hit by Section 168a of the Act.

THE FINDINGS OF THE COURTS BELOW

( 4 ) THE trial court after considering the evidence on record decreed the suit for recovery of the earnest money with interest but dismissed it for the specific performance of the contract on the following findings :

(i) The defendant No. 1 executed the contract to sell in favour of the plaintiff on 5. 4. 1966 and also received Rs. 4,000 as the earnest money. (ii) The defendant Nos. 2 and 3 are bona fide purchasers for value in good faith of the land without any notice of the contract to sell and are protected under Section 41 of the Transfer of property Act (the TPA ). (iii) Half share of plot No. 249 (area 5 bigha 6 biswa 5 biswansi) is a fragment in a consolidated area. The sale deeds are in favour of the defendant Nos. 2 and 3, who are mother and daughter. There is community of interest and there is no fragmentation of the plot No. 249. The sale deeds are not hit by Section 168a of the Act.

( 5 ) THE plaintiff filed an appeal. It was dismissed. The appellate court agreed with the trial court on the first three findings but disagreed with the third finding, though it did not change the fate of the case. The appeal was dismissed. The appellate court so far as the third finding is concerned has held that:

* The first sale deed dated 2. 9. 1966 in favour of the defendant No. 2 is of a fragment situate in a consolidated area and is hit by Section 168a of the Act : it is void. * The rights of the defendant No. 1 in respect of the land that was subject matter of the first sale deed are extinguished under Section 189 (aa) of the Act on the date of the transfer. * The second sale deed dated 21. 12. 1966 was of a fragment in a consolidated area but as it is of the entire share of the plaintiff on that date, it is not hit by Section 168a of the Act and is valid. * The suit for specific performance of the contract cannot be decreed thou