SAMIULLAH Vs. MOHAMMAD YASIN AND OTHERS

JUDGEMENT

(1.) The plaintiff decree-holder has come up in appeal against an order of remand. The facts, in so far as they are relevant for our purposes, need to be set out first.

(2.) One Khalil was the owner of the disputed house bearing Municipal No. A-39/337, A registered agreement of sale was executed by him in favour of the appellant on 16-6-1975 for a consideration of Rs. 4000.00 out of which Rs. 2000.00 was received in advance. Requisite permission from the ceiling authorities was obtained on 31-10-1975. It appears that later on the aforesaid Khalil was unwilling to execute the sale deed and the plaintiff had to resort to civil action seeking a decree for specific performance in suit No. 15 of 1976. Despite contest, the suit was decreed on 27-5-1977 and in pursuance thereof sale deed was also executed by the court for and on behalf of the defendant on 29-4-1978. When the said decree was put into execution for obtaining delivery of possession, it was resisted by one Yusuf whose wife Amna Bibi claimed to have purchased the property from khalil through sale deed dated 27-7-1977. The property was later purchased by respondents 1 and 2 on 13-1-1978. In view of this resistance, the decree-holder moved an application under Rule 97 of order 21 which was opposed by respondents 1 and 2 on various grounds. It was assessed that by an oral agreement of sale dated 16-12-1974, Khalil had agreed to - sell the property to Amna Bibi for a consideration of Rs. 8000.00 and the sale deed date 22-9-1977 had been executed in pursuance of the oral agreement. It was also contended that the sale deed in favour of the objectors was of a prior date as the sale deed in plaintiff's favour was of 29-4-1978. It was also claimed that the objectors had purchased the property from Amna Bibi and were bona fide purchaser for value and as such not liable to eviction in execution of plaintiff's decree.

(3.) The trial court rejected these objections and ordered delivery of possession even against the respondents. Aggrieved by the said order, respondents 1 and 2 filed an appeal and by the order impugned herein the matter has been remanded by the appellate court. According to the appellant the order of remand was erroneous as no proper ground for remand existed. The matters for the reconsideration of which the remand has seen ordered had already seen discussed in details by the trial court after considering the evidence available on the record. The appellate court was quite capable in deciding the matter itself on that material without any prejudice to the parties. The respondent has countered this argument mainly on the ground that the trial court gave its finding any issue causing serious prejudice to the respondents that it had failed to decide the question whether Sec. 52 of the Transfer of property Act applied in the facts and circumstances of the present case and that on some other points also no clear finding had been recorded.