KUNDAN Vs. 1ST ADDL DIST JUDGE BULANDSHAHR

JUDGEMENT

(1.) Aggrieved by the order of the 1st Additional District Judge, Bulandshahr dated 28-7-1987 in Revision No.166 of 1985, Suresh Chand, decree-holder v. Kundar, judgment-debtors, the petitioner has approached this Court under Article 226 of the Constitution. The petitioner is defendant judgment-debtor in a suit for specific performance of the contract.

(2.) The dispute between the parties related to the sale of sirdari plot No.465 of mauja Amarpur measuring 4 bighas 8 biswas. On the basis of an agreement to sell dated 8-4-1969 the plaintiff had brought a suit for specific performance of the contract. The defence in the suit was that the defendant-judgment debtor had not entered into the alleged agreement. The trial Court had dismissed the suit but in appeal the suit was decreed and the Second Appeal also failed on 28-11-1984. The plaintiff-opposite party No.3 in the present writ petition filed an execution which was numbered as Execution Case No.5 of 1985. The judgment-debtor-petitioner had raised a plea that the disputed plot had acquired the nature of a grove and the value or the plot together with the trees had amounted to Rs. 1 lakh, therefore, the sale of the trees could not be done in favour of the plaintiff-opposite party. The other pleas raised by the judgment-debtor are continued in annex. '2' attached with the writ petition. The agreement to sell has been contained in Annex. '1' attached with the writ petition. The trial Court had accepted the plea raised by the petitioner as is evident from the order dated 17-8-1985 contained in Annexure '3' attached with the writ petition. Against the order of the trial Court, the plaintiff-decree-holder had preferred a revision petition which has been allowed by the revisional Court as is evident from the certified copy of the judgment dated 28-6-1987contained in Annex. '4' with the writ petition.

(3.) Before me the learned Counsel for the petitioner has contended that the revisional Court has patently erred in observing that the trees standing over the disputed plot would go with the land sold. According to the learned Counsel for the petitioner, there was no agreement for the sale of the trees in favour of the plaintiff-opposite party and, therefore, the observation of the revisional Court in this regard suffers from patent error of law and deserves to be quashed.