MOHAMMAD HUSSAIN Vs. SYED MD JALALUDDIN

JUDGEMENT

(1.) THIS first appeal has been filed by the Plaintiff -Appellant challenging Judgment and decree dated 26th July, 1988, by which the learned 5th Subordinate Judge, Motihari (East Champaran) dismissed Title Suit No. 76 of 1983, filed by the Appellant for a decree of specific performance of contract against the Defendant -Respondents and for directing Defendants No. 1 and 2 to execute and get registered deed of sale with respect to suit property in favour of the Plaintiff -Appellant on receiving the balance consideration money amounting to Rs. 18,000,within the period prescribed by the Court, failing which, the same be executed and registered through the agency of the Court.

(2.) THE suit premises, as detailed in Schedule -I of the plaint, is 14. dhurs of land out of Plot No. 328, appertaining to Khata No. 30 and 10 dhurs of land out of Plot No. 331, appertaining to Khata No. 142, alongwith a tiled house standing thereon bearing Holding No. 254 of Ward No. 13, Tauzi No. 1351. Thana No. 169 situated in Mohalla Agarwa under Motihari Police Station within the district of East Champaran.

(3.) BOTH the aforesaid suits, namely, title suit and eviction suit, were tried together as analogous cases and were decided by a common judgment dated 26th July, 1988, by which while title suit filed by the Appellant for specific performance of contract was . dismissed, eviction suit filed by Respondent No. 1 for eviction of tenant Md. Manzoorul Haque was decreed. The decree, by which Eviction Suit No. 1 of 1984 filed by Respondent No. 1 wasdecreed, was not challenged either by the said tenant/occupant Md. Manzoorul Haque or by the present Appellant, who was Defendant No. 2 in the eviction suit and hence it attained finality. However, for executing the said eviction decree, the Plaintiff of the eviction suit, who is Respondent No. 1 in the instant appeal, filed Execution Case No. 7 of 1988 against the said tenant, in which the tenant, who was Defendant No. 1 in the eviction suit, filed a petition that he had already vacated the suit premises. Thereafter, the Appellant, who was intervenor -Defendant No. 2 in the eviction suit, filed a petition, which was numbered as Misc. Case No. 16 of 1992 for dispossal of Execution Case No. 7 of 1988 and the Executing Court by its order dated 28th November, 1997 allowed the.said miscellaneous case and rejected the execution case, holding that the decree of the eviction suit had become infructuous and not executable as the tenant/occupant had vacated the suit premises. Against the said order, the Decree Holder of the eviction suit, namely, Respondent No. 1 filed Civil Revision No. 395 of 1998, which was dismissed by this Court on 31st July, 1998. Against the said order passed by the High Court, the Decree Holder of the eviction suit (Respondent No. 1) filed Civil Appeal No. 2098 of 2000 before the Hon ble Supreme Court, which is pending.