BABU Vs. IXTH ADDITIONAL DISTRICT JUDGE AND OTHERS

JUDGEMENT

(1.) INITIALLY Abdul Ghafoor, predecessor -in -interest of respondent Nos. 3 to 6, which term includes their legal representatives also, was owner of the house in dispute. He sold the said house through registered sale deed on 1.12.1966 to petitioner Babu (since deceased and survived by legal representative). On the same date, Babu executed an agreement for reconveyance in favour of Abdul Ghafoor. Since that very date i.e. 1.12.1966 Abdul Ghafoor was permitted to reside in the house in dispute as tenant on monthly rent of Rs. 75/ - per month. Abdul Ghafoor filed suit for specific performance of agreement for reconveyance dated 1.12.1966, which was dismissed by Trial Court, Munsif Ghaziabad on 25.1.1973. However, the suit was decreed by Ist Appellate Court i.e. Additional Civil Judge Ghaziabad in C.A. No. 72 of 1973 allowed on 14.1.1975 and the said decree was maintained by this High Court in Second Appeal No. 441 of 1975 dismissed on 2.10.1980. Thereafter Abdul Ghafoor (or respondent Nos. 3 to 6) filed Execution Application (Ex Case No. 23 of 81) for execution of decree for specific performance. In the said Execution Application petitioner filed objections under section 47, C.P.C. mainly contending therein that the decree for specific performance had been attached in execution of another money decree, which had been obtained by him against respondent Nos. 3 to 6, hence the said decree for specific performance could not be executed. It may be mentioned that Abdul Ghafoor (or respondent Nos. 3 to 6) had also deposited the balance sale consideration and rent till 14.1.1975 after C.A. 72/73 was allowed on 14.1.1975. The objections of petitioner under section 47, C.P.C. were accepted by Revisional Court (Revision No. 252/82 was allowed by ADJ on 20.5.1983). Thereafter, matter was brought to this Court in the form of Writ Petition No. 7615 of 1983. The said writ petition was also dismissed on 6.2.2001. Now the position is that the said execution instituted by respondent Nos. 3 to 6 stands consigned to record.

(2.) MEANWHILE , petitioner filed suit for eviction against tenant -respondents before JSCC, being Suit No. 48 of 1982, stating, therein that no rent had been paid, hence the tenant was liable to be evicted, JSCC/Civil Judge, Ghaziabad dismissed the suit for eviction. However, it decreed the suit for recovery of arrears of rent (suit decided by JSCC, V Additional C.J., Ghaziabad on 24.9.1986). Relief of eviction was denied on the ground that suit for specific performance filed by the tenant had been decreed and notice was not served on all the tenants. Against the judgment and decree passed by the Trial Court/JSCC, both the parties filed revisions being SCC Revision No. 165 of 1986 and SCC Revision No. 172 of 1986, 9th ADJ, Ghaziabad on 7.5.1990 dismissed the revision of the landlord/petitioner and allowed the revision of the tenant. Suit for eviction was also dismissed. This writ petition by landlord is directed against the aforesaid judgment of Revisional Court dated 7.5.1990.

(3.) ACCORDINGLY , writ petition is allowed. Judgment and order passed by the Revisional Court in both the revisions dated 7.5.1990 is set aside. Judgment and decree of the Trial Court in so far as it is against the petitioner is set aside and suit of the plaintiff petitioner is decreed in toto.