An agreement for sale is not a transfer within the meaning of Section 164 of the U. P. Zamindari Abolition and Land Reforms Act.

S.P. Singh, J.

1. THE petitioner was served with a notice under Section 10 (2) of the Ceiling Act. Amongst the various objections that he took up, only two are relevant for the purposes of the present petition. One was that there has been an incorrect classification of certain plot of land as irrigated land, while in fact they were not so; and secondly that in 1967 he had entered into an agreement for sale of certain plots of land, and subsequently those plots of land were transferred to various persons in pursuance of a decree passed by the Civil Court on 17-8-1974. These objections did not find favour with the Prescribed Authority. It held that the agreement for sale was fictitious, and that the sale was not affected for adequate consideration. As regards the objection regarding the classification of some plots as irrigated land, it was repelled on the ground that the Lekhpal appearing on behalf of the State had deposed that the classification of land as shown in the notice was correct. An appeal was filed against this order. THE appellate authority held that an agreement for sale would not come within the purview of Section 164 of the U. P. Z. A. and L. R. Act, the land which was subsequently transferred could not be excluded for the purposes of finding out the surplus area of the petitioner. THE issue regarding demarcation of land also appears to have been raised before the appellate authority, because it has given a direction to the Prescribed Authority to demarcate surplus land after giving an opportunity to the petitioner. Counsel for the petitioner contended that as the agreement to sell had been entered into before the appointed date, it was saved by Section 164 of the U. P. Zamindari Abolition and Land Reforms Act, and the land comprised in that agreement could not be taken into account for the purposes of fixation of the surplus land. I am unable to accept this contention. Section 164 of the U. P. Zamindari Abolition and Land Reforms Act runs as under :- "164. Transfer with possession by a bhumidhar to be deemed a sale. Any transfer of any holding or part thereof made by a bhumidhar by which possession is transferred to the transferee for the purposes of securing any payment of money advanced or to be advanced by way of loan, and existing or future debt or the performance of an engagement which may give rise to a pecuniary liability, shall, notwithstanding anything contained in the document of transfer or any law for the time being in force, be deemed at all times and for all purposes to be a sale to the transferee and to every such sale the provisions of Secs. 154 and 163 shall apply.

2. BEFORE this provision applies, the transaction in question has to be a transfer. An Agreement to sell cannot be held to be transfer as contemplated by this section, for no title passes to another person as a result of the transaction. This apart, even assuming that such an agreement would fall within the purview of Section 164 of the Act, inasmuch as the instrument evidencing it was not a registered one, no title at all could pass under this document as the consideration in the agreement to sell was in excess of Rs. 100/-. This contention must, therefore be rejected. Counsel, however, contended that the petitioner had led evidence by way of filing a Khasra for 1378 and 1380 F. to establish that the land was not irrigated as contemplated by Section 4-A of the Act, and both the Prescribed Authority and the Appellate Authority have omitted to look into this evidence. In paragraph 9, it has been averred that all the grounds taken in the present petition were urged before the Appellate Authority but the Appellate Authority failed to give any finding on the contention raised. Ground no. 9 of the grounds taken in the petition raises the contention that the land was not irrigated land. In paragraph 8 of the counter-affidavit, it has been averred that all the grounds taken in the present petition were Urged before the Appellate Author