Dhavan, J.:— This is a plaintiff's second appeal from the concurrent decisions of the courts below dismissing his suit for specific performance of an agreement for reconveyance of the two plots of land. It raises several important questions of law. The facts are these. The plaintiffs, on 14th September 1954 sold the two plots to the respondents for a sum of Rs. 2,500/-, and there was a simultaneous agreement that the defendants would re-convey the land to the plaintiffs if the latter were willing to pay Rs. 2,500/- for it Soon after this agreement, the village in which the land is situate came under consolidation and the two plots in dispute were allotted to a third person as a part of his consolidated holding. It is common ground that during the entire proceedings for consolidation, the plaintiff did not exercise their option to re-purchase the land. On 3rd February 1960 after the consolidation was complete and the aforesaid third person had taken possession of the land, the plaintiffs exercised their option and served notice on the defendant-respondents to re-convey the land to them at the agreed price. The defendants took no notice of this demand and the plaintiffs filed the present suit for specific performance. The defendants resisted it and raised several pleas in defence. They contended that they were no longer owners of the plot in dispute and it was impossible for them to perform the contract. They also pleaded that the agreement was void under Sec. 168-A of the Consolidation of Holdings Act which in effect provides that a transfer of any fragment situate in a consolidated area is void unless the transferee has a plot contiguous to the fragment or unless the whole of the plot which the fragment is a part is transferred. They also took a number of other pleas—as for example, that the agreement to re-convey the land was obtained by undue influence, but it is not necessary to mention them as they were rejected by both the courts below and not pressed in this appeal.

2. The trial court held that there was an agreement to re-convey the land but it had become void under Sec. 168-A of the U.P Zamindari Abolition and Land Reforms Act and could not be enforced. It dismissed the suit with costs. The appellate court confirmed this decision and the plaintiffs have come here in second appeal.

3. Mr. Hari Krishna Agarwal, who holds the brief of Mr. Shanti Bhushan argued this appeal with great tenacity, contended that the view of the courts below that the agreement to re-convey was hit by Sec. 168-A is erroneous. Learned counsel pointed out that this section was enacted by an amending Act which contain a saving section which exempted all obligations already incurred from the operation of Sec. 168-A.

4. Sec. 168-A was included by the U.P Land Reforms Amendment Act, XVIII of 1956 and runs thus:

“Transfer of fragments. (1) Notwithstanding the provisions of any law for the time being in force, no person shall transfer whether by sale, gift or exchange any fragment situate in a consolidated area except where the transfer is in favour of a tenure-holder who has a plot contiguous to the fragment or where the transfer is not in favour of any such tenure-holder the whole of the plot to which the fragment pertains is thereby transferred. (2) The transfer of any land contrary to the provisions of sub-Sec. (1) shall be void. (3) When a bhumidhar has made any transfer in contravention of the provisions of sub-Sec. (1) the provisions of Secs. 167 and 168 shall mutatis mutandis apply.”

Sec. 23 of the amending Act provided: “23-Saving—(i) Any amendment made by this Act shall not affect the validity, invalidity, effect, or consequences of anything already done or suffered or any right, title or liability already acquired, accrued or incurred or any jurisdiction already exercised, and any proceeding instituted or commenced before any court or authority prior to the commencement of this Act shall, notwithstanding any amendment herein made, continue to be heard and decided by such court or authority.

(ii) An appeal, review, or revision from any suit or proceeding instituted or commenced before any court or authority prior to the commencement of this Act shall notwithstanding any amendment herein made lie to the court or authority to which it would have laid if instituted or commenced before the said commencement.”

5. Reading the two sections together it is plain that Sec. 168-A cannot apply to any right acquired or obligation or liability incurred before the commencement of the amending Act. Therefore, even if an agreement violated the provisions of Sec. 168-A, it was not void if the rights and obligations under it were created before the amendment. In the present case the defendants gave an option of re-purchase to the plaintiffs and incurred the obligation to re-convey the land within seven years provided the plaintiffs offered Rs. 2,500/- within this period. This was a pre-existing obligation saved from the mischief of Sec. 168-A. Both the courts below appears to have over-looked Sec. 23 amending Act altogether.

6. The next question is whether the agreement was discharged by frustration, or to give the doctrine its proper name under the Indian law, by impossibility. Mr. G.N Sharma contended that the agreement has become void under Sec. 56 of the Contract Act. He relied upon the second paragraph of this section which provides “A contract to do an act which after the contract is made becomes impossible, or by reason of some event which the promiser could not prevent, unlawful becomes void when the Act becomes impossible or unlawful.” Learned counsel pointed out that the defendants had agreed to re-convey a specific plot of land, but as a result of the consolidation proceedings which they could not prevent they were deprived of the ownership of these plots which were allotted to another person. Learned counsel argued that the defendants, having been deprived of the ownership of the plots by the operation of the law, the contract had become impossible of performance.

7. In reply to this argument Mr. Agarwal relied on Sec. 30 of U.P Consolidation of Holdings Act: This section runs thus:

“Rights after consolidation: With effect from the date on which a tenure-holder, in pursuance of the provisions of Sec. 26, enters into possession of the plots allotted to him, his rights, title, interest and liabilities in his original holding shall be extinguished and he shall have the same rights, title, interest and liabilities subject to modifications, if any, specified in the final consolidation scheme in the plots allotted to him under Sec. 25.”

8. Mr. Agarwal pointed out that though the defendants were no longer the owners of the specific plots, which they were agreed to re-convey, they were allotted other plots, and they are therefore under an obligation to convey the new plots to the plaintiffs. He relied on the words “his (the tenure-holders’) rights, title, interest and liabilities in his original holding shall be extinguished and he shall have the same right, title, interest and liabilities—in the plots allotted to him.” Counsel pointed out that the defendants were under a liability to re-convey the old plots to the plaintiff, and this liability attached itself to the new plots when they entered into possession of these plots after allotment. Therefore, the agreement to re-convey the old plots was saved from the effect of impossibility by virtue of Sec. 30.

9. The flaw in this argument is the wrong meaning given to the word “liabilities” by learned counsel. Sec. 30 provides that after a tenure-holder takes possession of the plots allotted to him, his “rights, title, interest and liabilities in his original holding (my emphasis) shall be extinguished and he shall have the same rights, title, interest and liabilities— in the plots allotted to him (my emphasis).” The effect of this section is to extinguish all rights and liabilities in the old plots and to create equivalent rights and liabilities in the new plots. The word liability means legal liabilities—as for example, the liability to pay land revenue, and so on. Similarly the word ‘right’ means legal rights in the land—as for example, the rights of a bhumidhar. Sec. 30 provides that if under the Consolidation proceedings a sirdar is deprived of his clot and given in exchange a plot of a bhumidhar, his rights under the new plots will be those of sirdar and not a bhumidhar, and similarly his liabilities will be of those of a sirdar and not as a bhumidhar. But agreement to convey land does not create a liability in the land but only a personal right which can be enforced against the person making the agreement. Such a liability does not attach itself to the new plots by virtue of Sec. 30.

10. If learned counsel's argument is accepted it may lead to some strange results. Suppose A agreed to purchase a plot belonging to B. After consolidation B gets another type of chak. If the rights and liability of the person under the agreement are transferred from plot to plot A will be compelled to purchase a plot which was not even within the contemplation of the parties at the time of the agreement. I think Sec. 30 was not intended to compel a purchaser of one plot to accept a substitute plot.

11. My view that rights and liabilities refer to legal right and liabilities is supported to some extent by Sec. 31 which deals with incumbrances. It provides in effect that if a particular holding is subject to any mortgage, this mortgage shall be transferred and attached to the corresponding holding allotted under the scheme of consolidation of holding. Now mortgage obviously creates legal rights and obligation. Sec. 31 deals with a particular case while the general principle has been laid down in Sec. 30.

12. In my opinion where a person agrees to convey a particular plot of land to another, and subsequently under a scheme of consolidation he is deprived of the ownership of the plot and allotted another in lieu it, and the agreement to transfer is not saved by the exceptions enumerated in Sec. 168-A of the U.P Zamindari Abolition and Land Reforms Act, the agreement becomes void and impossible of performance, and is not saved by Sec. 30 of the U.P Consolidation of Holdings Act which provides for the transfer of legal rights and liabilities in respect of his plots to the new of course this would not apply where a person agrees to transfer his entire holding in a village and is subsequently allotted a different holding in lieu of it, or agrees to transfer a contiguous plot as permitted under Sec. 168-A. It may be that in such a case the transferee can compel him to transfer the holding allotted to him in lieu of the one originally held by him. It is not necessary for me to consider this question as the impugned transfer is not of such a nature. I hold that the plaintiffs suit must fail on the ground of impossibility of performance.

13. But there is another ground, A decree for specific performance is an equitable remedy to be granted in the judicial discretion of the court, and the court may, for sufficient reasons, refuse to order specific performance even if the plaintiff has proved the contract. In this case I feel that the plaintiffs are not entitled to a decree for specific performance. The agreement was made in 1954 and it is common ground that consolidation proceedings started thereafter. They lasted for several years but throughout this period the plaintiffs sat back and did not exercise their option, though they knew that the plots in dispute were being allotted to the defendant. If they had exercised their option during the proceedings and made a claim before the consolidation authorities the latter would have been compelled to deal with it on merit. But they waited until the consolidation scheme was completed and the plots were allotted to another person. Today if the contract is enforced this is conceded by the learned counsel—the result will be a reversal of the consolidation proceedings. I think the court should not enforce an agreement of re-conveyance if in enforcement will lead to this result—a result which could have been avoided if the plaintiff had exercised his option at the proper time. The U.P Consolidation of Holdings Act was passed to over-come the evil of fragmentation which is one of the contributory causes of the terribly low rate of production in the country. The court should not enforce a contract if the effect will be to reverse, even partially, a process of consolidation already achieved, if it feels that the plaintiff by the exercise of a little more vigilance could have prevented it.

14. The appeal is dismissed. In the circumstances of the case I direct the parties to bear their own costs throughout.

Appeal dismissed.