BRISHKETU SARAN SINHA, J.

(1.) The petitioner-plaintiff in the court below, filed Title Suit No. 203/97 of 1974/77 against the opposite party-defendant for specific performance of contract for sale on the basis of a registered agreement dated 30th March, 1974. According to the petitioner, the agreement was to the effect that the opposite party would sell his land having an area of 4.27 acres in village Parsurampur for Rs. 20,497.50 paise. The details of the land were mentioned in the plaint. On the date of the execution of the agreement, a sum of Rs. 2,500/- was also paid to the opposite party. The agreement provided that the opposite party would execute the sale deed by the end of Jeth, 1974, and the advance would be adjusted towards the total consideration.

(2.) During the pendency of the suit the opposite party filed a petition on 16th January, 1978, to the effect that the suit had abated in view of the provisions of Section 4 (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act XXII of 1956) to which a rejoinder was filed by the petitioner. By order dated 18th February, 1978, Shri M.A. Mohnavi, 4th Additional Subordinate Judge, Sasaram, held that the suit was covered by the provisions of Section 4 (c) of the Consolidation Act and, hence, had abated.

(3.) Aggrieved by the aforesaid order the plaintiff-petitioner has filed this revision application. It is not disputed that on the basis of a gazette notification dated 17th January, 1972, consolidation operations have started in village Parsurampur and are continuing.

(4.) Mr. Tara Kant Jha, appearing for the petitioner, has urged that the suit, being a suit for specific performance of contract for sale, does not come within the mischief of Section 4 (c) of the Consolidation Act which reads thus:--

"Every proceeding for the correction of records and every suit and proceedings in respect of declaration of rights or interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under this Act, pending before any court or authority whether of the first instance or of appeal, reference or revision shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated."

The provisos to this section are not being quoted as they are not relevant.

(5.) By going through the aforesaid provision it is manifest that every suit and proceeding in respect of declaration of rights or interest in any land in which a consolidation proceeding is going on, will stand abated. Therefore, it has to be seen whether in the instant case the suit related to a declaration of rights or interest in any land.

(6.) Admittedly, the suit is for the enforcement of a contract for sale and the subject matter of sale is the land which is situated in village Parsurampur. The last two paragraphs of Section 54 of the Transfer of Property Act read thus :--

"A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."

This provision clearly lays down that a contract for sale of immoveable property does not create any interest in or charge on such property. Therefore, a contract for sale of land does not, of itself, create any interest in or charge on such land.

(7.) In the case of Shiva Prasad Singh v. Beni Madhab Chowdhury (AIR 1922 Pat 529 [LQ/PatHC/1922/58] ), Das, J. with whom Adami, J. agreed, pointed out the broad distinction between a charge and mortgage in the following terms:--

"that whereas a charge only gives right to payment out of a particular fund or property without transferring that fund or property, a mortgage is in essence a transfer of an interest in specific immoveable property."

In the case of Rambaran Prosad v. Ram Mohit Hazra ((1967) 1 SCR 293 [LQ/SC/1966/175] ), it was observed by Ramaswami, J., speaking for the Court, (at page 301 of the Report) that a mere contract for sale of immoveable property does not create any interest in the immovable property. It is obvious, therefore, that the suit does not relate to any right or interest in land and does not come within the mischief of Section 4 (c) of the Consolidation Act.

(8.) The view that I have taken also finds support from a Division Bench decision of the Allahabad High Court in the case of Sri Ram v. Dhani Ram Gupta (AIR 1974 All 358 [LQ/AllHC/1974/114] ). One of the questions that fell for decision in that case was whether a suit to execute a sale deed with regard to land could be said to be in relation to the land" Section 9 (1) (a) of the U.P. Consolidation of Holdings Act also relates to rights in relation to the land--their liabilities in relation to the land. It was held that the rights which are created by a contract for sale are purely personal rights and they do not attach to the land and it is only after a sale deed is executed that rights in relation to the land arise.

(9.) It is not necessary to refer to a single Judge decision of the Calcutta High Court in the case of Rabindra Nath Banerjee v. Harendra Kumar Chakravarty (AIR 1956 Cal 462 [LQ/CalHC/1956/20] ) apart from stating that in Mullas Transfer of Property Act, Fifth Edition, at page 312, it has been stated that this decision is not correct.

(10.) For the reasons given above, this application is allowed and the order dated 18th February, 1978, passed in the aforesaid title suit is set aside. As no one has appeared for the opposite party, I would make no order as to costs.