SURESH CGATURBHUJ ZANVAR Vs. TUKARAM BALA JADHAV

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution of India is filed challenging the order passed by the Joint Civil Judge, S.D.Satara, below Ex.1 in Reg. Darkhast No.108 of 1981.

(2.) IT appears that the petitioner entered into an agreement in respect of plot of land situate at Satara and in that behalf he filed Reg.Civil Suit No.50/66 in the Court of Civil Judge, SD, Satara. The suit ended in dismissal in regard to prayer for specific performance of the agreement and alternative relief was granted. That decree was challenged in Civil Appeal No.192 of 1967 in the District Court Satara and the learned District Judge, Satara, set aside that decree and remitted the suit to the trial court for deciding it in accordance with law, by giving opportunity to the plaintiff to amend the plaint and thereafter to lead evidence. After remand, again the suit came to be dismissed on 20th September 1968, so far as relief of specific performance was concerned. That decree was again challenged in Civil Appeal No.399 of the 1982 in the District Court, Satara. The District Judge, Satara, confirmed the decree refusing specific performance with certain modification with which there is no controversy in the present petition. However, the petitioner preferred Second Appeal in this Court and this Court (Aggarwal, J.) by his judgment and order dated 18th October 1977 set aside the decision of the Courts below and granted decree for specific performance in favour of the present petitioner. It also appears from the contents of the execution petition that in pursuance of that decree, sale deed was executed in favour of the petitioner in respect of the suit property. It then appears that the present execution proceeding, viz. Regular Darkhast No.108 of 1981 was filed, with a prayer that the property be got measured by appointment of the Commissioner in accordance with description given in the sale deed and that possession of the same be either handed over to the petitioner or confirmed and further sum was sought to be recovered from the judgment debtor. Notice came to be issued to the judgment debtor and thereafter the Executing Court, after hearing both sides, came to the conclusion that in part performance of the agreement, the petitioner-plaintiff was already put in possession and throughout he was held to be in possession even by the High Court. Therefore, there is no question of delivery of possession. So far as prayer for measurement of the property is concerned, the Executing Court directed that petitioner may get the land measured by appropriate authority. On such finding, the Executing Court dismissed the Darkhast, and the same is challenged in this petition.