Bhaskar Bhattacharya, J.

1. This second appeal is at the instance of a Defendant in a suit for specific performance of contract and is directed against the judgment and decree dated July 13, 1989 passed by the learned Additional District Judge, Alipore in Title Appeal No. 594 of 1987 thereby modifying the judgment and decree dated June 22, 1987 passed by the learned Munsif, First Court, Sealdah in Title Suit no, 153 of 1982.

2. The Respondent filed, the aforesaid suit for specific performance of a contract for sale of a land at the price of Rs. 14,000.00 on the allegation that since the Defendant was minor at the time of execution of the agreement, the father of the Defendant executed the said agreement on behalf of the Defendant after taking earnest money of Rs. 2,000.00.

3. The further case of the Respondent was that the father obtained necessary permission from the learned district Judge for disposing of the suit property and also undertook to apply before the Urban Land Ceiling Authority under Section 26(1) of the Urban Land Ceiling and Regulation Act, 1976. The Respondent deposited the sum of Rs, 14,000.00 before the learned District Judge along with a draft Kobala but at that point of time the father of the Appellant disclosed that the petition under Section 26(1) of the aforesaid Act filed by the Appellant was rejected by the competent authority and he preferred an appeal before the Board of Revenue, and the Board of Revenue after hearing the appeal directed the competent authority to make an enquiry and dispose of the application within 60 days from the date of communication of the order. The Respondent alleged that inspite of giving full assistance the Respondent failed and neglected to take any step as per the order of the Board of Revenue.

4. The aforesaid suit was contested by the Appellant by filing written statements thereby denying the material allegations made in the plaint. The Appellant contended that after passing of the order by the Board of Revenue, his father met the Respondent several times in his chamber as he was all along willing to take steps in accordance with the order passed by the Board of Revenue. Accordingly he asked the Respondent to return the relevant documents lying with him but the Respondent refused to hand over those documents. He further contended that for non-co-operation of the Respondent he could not make the application ready. The Appellant was ready to refund the money which was deposited by the Respondent.

5. The learned Trial Judge on consideration of the materials on record arrived at a conclusion that the Board of Revenue in its order held that the entire matter was required to be reviewed and asked the Appellants father to file another application under Section 26(1) of the Urban Land Ceiling and Regulation Act, 1976. The learned Trial Judge further found that as all the documents were lying with the Respondent, the father of the Appellant could not file fresh application as per order of Board of Revenue. Therefore, the learned Trial Judge finally held that there was no fault on the part of the Appellant for not obtaining requisite sanction from the Urban Land Ceiling Authority. Having arrived at such finding the learned Trial Judge passed a decree for refund of earnest money with interest @ Rs. 12% p.a. and also permitted the Respondent to withdraw the sum of Rs. 14,000.00 which was lying in the court of District Judge.

6. Being dissatisfied with the aforesaid judgment and decree passed by the learned Trial Judge, the Respondent preferred an appeal being Title Appeal No. 594 of 1987 which was heard by the learned Additional District Judge, 10th Court, Alipore and the learned Additional Disrict Judge by his judgment and decree dated July 13, 1989 was pleased to allow the said appeal thereby modifying the decree passed by the learned Trial Judge and instead of granting a decree for refund of earnest money, passed a decree for specific performance of contract.

7. While passing such decree the learned First Appellate Court held that it was for the fault of the Appellant that no fresh application as directed by the Board of Revenue was filed before the competent authority for permission under Section 26(1) of the aforesaid Act. The iearned First Appellate Court held that as per direction of the Board of Revenue the Appellant was under obligation to disclose whether he himself, his son or his wife possessed any vacant land in any place in India except the suit land. Therefore, the custody of the title deed of the suit property with the Respondent did not preclude the Appellants father from filing a fresh application in terms of the direction given by the Board of Revenue. Therefore, according to the first appellate court, the father of the Appellant deliberately did not file fresh application as per direction of the Board of Revenue and for such fault the Respondent could not suffer. Thus, after reversing the finding of the learned Trial Judge that the Appellant was not negligent for not preferring fresh application as per direction of the Board of Revenue, the first appellate court passed a decree for specific performance of contract after modifying the decree of refund of earnest money granted by the learned Trial Judge 8. Being dissatisfied with the aforesaid judgment and decree passed by the learned first appellate court the Defendant has preferred the instant second appeal.

9. Mr. Chowdhury, the learned advocate appearing on behalf 6f the Appellant has made three fold submissions in support of the instant second appeal. The first submission of Mr. Chowdhury is that in the suit, the Respondent having prayed for alternative remedy by way of refund of earnest money and the said relief having been granted by the learned Trial Judge, it was not open to the Respondent to prefer any appeal before the learned District Judge. I find there is a Division Bench decision in Reajuddin Patwari v. Syeed Abdul Jubbar : A.I.R. 1924 Cal. 445 [LQ/CalHC/1922/281] which supports the contention of Mr. Chowdhury, However, in view of decision in Ramesh Chandra Chandiok v. Chunilal Sabbarlal : A.I.R. 1971 S.C. 1238 in my opinion the said Division Bench decision is no longer a good law. After the aforesaid decision of the Supreme Court as stated above, the contention of Mr. Chowdhury has no force.

10. The second submission of Mr. Chowdhury is that the finding of the learned first appellate court that the Appellant was negligent in not preferring a fresh application as per direction of Board of Revenue for permission was on the face of it bad as the said finding was based on non-consideration of the materials on record. After going through the materials on record I cannot agree with the submission made by Mr. Chowdhury. It will appear from the order of the Board of Revenue that the member of the Board of Revenue remanded the case with a direction to the Appellant to file another application under Section 26(1) of the Urban Land Ceiling and Regulation Act, 1976 before the competent authority mentioning therein whether there is any other land in his name or in the name of any other person belonging to his family and the competent authority was directed to make an enquiry and dispose of the application within the period of 60 days from the communication of that order. Therefore, the defence of the Appellant that as the original title deed was lying with the Respondent he could not comply with the direction of the Board of Revenue cannot be accepted. What he was required to do was to disclose, whether he had got other property in India, whether in his own name or in the name of any member of his family. Therefore, the Appellant cannot take the plea that as the title deed of the suit property was lying with the Respondent, he could not disclose the said fact before the competent authority as per direction of the Board of Revenue. Therefore, in my opinion, the learned first Appellate Court rightly arrived at the finding that it was for the negligence of Appellant that a fresh application was not filed before the competent authority under Section 26(1) of the aforesaid Act. A finding that a particular person is negligent is essentially a finding of fact and said finding having been arrived at by the first appellate court on consideration of materials on record, I find no reason to interfere the said finding in the instant second appeal as Mr. Chowdhury would not draw my attention to any important peace of evidence which escaped the notice of the learned first Appellate court in arriving at such conclusion. Suffice it to say, the said finding cannot be said to be a finding without any evidence. Thus, the second contention raised by Mr. Chowdhury fails.

11. The third contention of Mr. Chowdhury is that in the absence of a requisite permission by competent authority under Urban Land Ceiling and Regulation Act, 1976 no effective decree for specific performance can be passed by a Court.

12. Mr. Mukherjee, the learned advocate appearing on behalf of the Respondent on the other hand has contended that even without such permission there is no bar in passing a decree for specific performance of contract. In support of such contention Mr. Mukherjee relies upon the decisions Ajit Prasad Jain v. N.K. Widhani A.I.R. 1990 Del. 42 [LQ/DelHC/1989/332] and C.S. Logamathan v. P.L. Kapoor : 83 I.T.R. 430.

13. After hearing the learned advocates appearing on behalf of the parties, in my opinion, the mere fact that no permission under Section 26(1) of the Urban Land Ceiling and Regulation Act, 1976 has yet been granted by the competent authority by itself could not payment the court from passing a decree for specific performance of contract. In my opinion, procedure in such a case will be to pass a decree for specific performance of contract with a further direction to the Defendant to make necessary application for permission within a specified time and to further direct that within one month from the receipt of the sanction from the competent authority the Defendant will convey to Plaintiff the property in suit. A further direction should also be given in the decree that in the event sanction is refused, the Plaintiff will be entitled to get an alternative remedy for refund of earnest money with interest and permission to withdraw money which is lying in deposit with the district Judge as passed by the learned Trial Judge, While arriving at the aforesaid conclusion I have followed the decision of Chandnee Widya Vati Madden v. C.L. Katial : A.I.R. 1964 S.C. 978. The aforesaid case was one for specific performance where one of the terms was that the vendor should obtain necessary permission from the Government before the sale. In the said case vendor made application but subsequently withdrew the same and as such no permission was granted by the Government. The learned Trial Judge dismissed the suit for specific performance of contract but decreed a particular sum by way of damages although the learned Trial Judge found that the Plaintiff was all along ready and willing to perform his part of the contract and that it was the Defendant who had backed out of it. On appeal by Plaintiff, the High Court came to the conclusion that in the facts and circumstances of the case the Plaintiff was entitled to a decree for a specific performance of contract subject to the grant of sanction by the Chief Commissioner. The Supreme Court while affirming the finding of the High Court passed a decree in the line I have indicated above. Therefore, in my opinion, the learned first Appellate Court rightly granted a decree for specific performance of contract. I, however, modify the said decree to this extent that the Appellant is also directed to file fresh application under Section 26(1) of the Urban Land Ceiling and Regulation Act, 1976 within one month from date, and the deed will be registered within one month from date, and the deed will be registered within one month from the receipt of the sanction. The decree is further modified to the effect that in the event sanction is refused by the competent authority, the alternative decree for damages as awarded by the learned Trial Judge will be passed.

14. In the decision reported in Ajit Prasad Jain v. N.K. Widham (Supra), the learned Judge in para.21 of the judgment gave a wrong quotation of the decision reported in Chandnee Widya Vati Madden v. C.L. Katial {Supra). The learned Judge totally overlooked the fact that the Apex Court incorporated in the decree itself the condition of grant of permission. Thus, I cannot agree with the view taken in that decision.:

15. In the decision reported in C.S. Logamathan v. P.L. Kapoor (Supra) the Delhi High Court observed that the provision of Section 230A of the Income Tax Act did not apply to transfer executed by the order of the court. I am not prepared to apply the principle laid down there to Section 26(1) of the Urban Land Ceiling and Regulation Act.

16. Mr. Mukherjee lastly contended that as the registration of the sale deed has already been made as per direction of the 1st Appellate; Court, this Court should not modify the decree passed by the 1st Appellate Court and it is for the Appellant to file a fresh suit if he wants to challenge the registration. I am at a loss to appreciate the submission of Mr. Mukherjee. If the registration has been made as per decree passed by the 1st Appellate Court and the said decree is modified in further appeal, the Respondent cannot take advantage of such registration to defeat the right of the Appellant.

17. Thus, there is no merit in the instant appeal. However, the decree passed by the learned first Appellate court is modified to the extent as indicated above.

18. There will be no order as to costs.