SURESH CHAND Vs. KUNDAN

JUDGEMENT

(1.) Kundan and Mohar Singh were the co-sharers of Plot No. 645 measuring 4 bighas 8 biswas situated at Village Amarpur in the district of bulandshahr. Kundan and Mohar Singh executed an agreement for sale of the said land in favour of the appellant on 8-4-1969. Since the vendors did not execute the sale deed, the appellant brought a suit for specific performance of agreement for sale of the land. The said suit was dismissed by the trial court. However, the first appellate court allowed the appeal of the appellant and the suit for specific performance was decreed. Thereafter, defendant Kundan and mohar Singh, preferred a second appeal before the High Court. During pendency of the appeal before the High Court, Mohar Singh executed a sale deed with respect to his half share in the land in dispute, in favour of the appellant. Subsequently, second appeal filed by Kundan and Mohar Singh was dismissed by the High Court, Since Kundan did not execute the sale deed despite the decree, the appellant put the decree for execution. In the said execution case, Kundan filed an objection, inter alia, on the ground that what was agreed to be transferred was land and not the trees standing thereon, and that since the trees had not been agreed to be sold, the possession of the land cannot be delivered to the decree-holder. The executing court upheld the objection of Kundan.

(2.) Aggrieved, the appellant filed a revision petition before the District judge, Bulandshahr. The Additional District Judge, Bulandshahr who heard the matter was of the view that there was no existence of full-grown trees on the land at the time of agreement for sale and thus by virtue of Section 8 of the Transfer of Property Act (hereinafter referred to as "the Act") , the trees standing on the land shall be deemed to be vested in the plaintiff. Consequently, the order of the executing court was set aside and the revision petition filed by the appellant was allowed. However, on the writ petition filed by Kundan before the High Court at Allahabad, the order passed by the revisional court was set aside and the case was sent back to the revisional court to enable the parties to arrive at some compromise between themselves. The High Court, however, held that if no compromise was arrived at between the parties, the appellant would be entitled to hold the land purchased by him and defendant Kundan shall be entitled to reap the fruits of the trees standing on the land. In these terms the writ petition was disposed of. It is against the said judgment of the High Court, the appellant is in appeal before us.

(3.) Mr E. C. Agrawala, learned counsel appearing for the appellant referred to Sections 3 and 8 of the Act and Section 3 (26) of the General clauses Act. On the strength of these provisions, learned counsel argued that when the land was agreed to be sold there were only some plants and saplings on the land and there was no existence of the trees on the land and during the long period of litigation of 25 years if some plants and saplings have grown into full-fledged trees, the same would be treated as benefit arising out of the land, and in view of Sections 3 and 8 of the Act, the trees are now vested in the appellant. We find substance in the arguments of learned counsel for the appellant. Section 3 of the Act defines the expressions