GOPALJI PRASAD KESHARI Vs. MOHAMMAD REYAZ

JUDGEMENT

(1.) In both the applications a common question of law and facts is involved, they have been heard together and are being disposed of by this common judgment.

(2.) Civil Revision Application No. 1954 of 1989 has been filed against the order dated 13-6-1989 passed in Miscellaneous Case No. 29 of 1983 and Civil Revision Application No. 1960 has been filed against the order dated 13-6-1989 passed in Miscellaneous Case No. 32 of 1983.

(3.) The short fact of the case is that the petitioner filed Eviction Suit No. 280 of 1975 against one Farooque Mian for his eviction from the suit premises. The suit was decreed on contest. Farooque Mian filed an appeal against the aforesaid judgment and order which was dismissed. He thereafter filed a second appeal which was also dismissed. The petitioner, thereafter, filed an Execution Case No. 64 of 1979 for execution of decree. During the pendency of the execution case Md. Reyaz and Md. Iliyas, sons of the judgment-debtor, Farooque Mian, filed a petition under Ss. 47 and 151 of the Code of Civil Procedure (hereinafter referred to as the Code in the execution case stating, inter alia, therein that Abdul Quadir was the landlord, who had two sons, namely, Abdul Hasim and Abdul Malik. They had purchased half share in the suit premises from Abdul Hasim on 6-9-1969 after the death of his father and are in possession thereof and hence the execution case for effecting delivery of possession is not maintainable to the extent of half share on which they are in possession. On the said petition Miscellaneous Case No. 29 of 1983 was registered. Subsequently a petition was filed by them for treating the miscellaneous case under O. 21, R. 97 of the Code which was allowed. The judgment-debtor, Farooque Mian also filed a petition stating, inter alia, therein that the execution case is not maintainable to the extent of half portion of the suit premises as his two sons, namely, Md. Reyaz and Md. Iliyas have purchased half of the suit premises on. 6-9-1979 from Abdul Hasim one of the sons of Abdul Quadir. On the said petition Miscellaneous Case No. 32 of 1983 was registered. The petitioner in both the miscellaneous cases filed an application stating, inter alia, therein that the miscellaneous cases are not maintainable.