MOHD ALEEM Vs. MAQSOOD ALAM

JUDGEMENT

(1.) This revision is directed against the order dt. 11th Oct. 1984 passed by the Additional Civil Judge No. 1, Kota, in Execution Petition No. 28/83 whereby the Additional Civil Judge rejected the objections submitted by the petitioner and Mohammad Salim non-petitioner 4 against the petition filed by non-petitioners 1, 2 and 3 for execution of a decree passed by this Court in favour of Khurshid Alam (deceased). The non-petitioners 1, 2 and 3 are the heirs and the legal representatives of Khurshid Alam.

(2.) Khurshid Alam had filed a suit (Civil Suit No. 173/62) against his step mother, Smt. Fatima Begum, and his brother, Mazhar Ali, for the recovery of possession of a house situated in Ladpura, Kota City on the basis of a gift made in his favour by his grandfather, Madar Ali. The said suit was also for taking account of the mesne profits of the house from the date of the suit till the date of the delivery of the possession. In the said suit a decree for eviction was passed by the Civil Judge, Kota, in favour of Khurshid Alam and against Smt. Fatima Begum on 9th July, 1958. The Civil Judge also passed a decree for mesne profits from the date of the suit till the date of delivery of possession @ Rs. 80/- per month. Smt. Fatima Begum filed an appeal (Civil Appeal No.163/58) against the said judgment and decree and the same was dismissed by the District Judge, Kota by his judgment dt. 23rd May, 1960. Smt. Fatima Begum filed a second appeal (Civil Second Appeal No. 510/60). In the said appeal compromise was arrived at between Smt. Fatima Begum and Khurshid Alam on 8th Oct., 1966 whereby it was agreed that Khurshid Alam was the owner of the house in dispute and he maybe declared as such. In the said compromise it was also stated that in a part of the house in dispute Smt. Fatima Begum was residing and other part was in occupation of tenants and it was agreed that during her lifetime Smt. Fatima Begum shall remain in possession of the house in dispute and she would also be entitled to recover rent from tenants and to maintain herself from the said rent and that during the lifetime of Smt. Fatima Begum, Khurshid Alam would not have the right to recover the rent from the tenants or to induct a new tenant in the house and he will also give a notice to all the tenants to pay the rent to Smt. Fatima Begum during her lifetime. In the said compromise it was further agreed that after the death of Smt. Fatima Begum Khurshid Alam and his heirs would be entitled to take possession of the house and to recover rent and that Smt. Fatima Begum would not mortgage, sell or gift the property to anybody during her life but in case any tenant vacates the premises she would be entitled to induct a new tenant for her lifetime. It was also agreed that Smt. Fatima Begum would have no connection with ownership of the house and would not claim ownership of the same and would not do anything which may affect the proprietary rights of Khurshid Alam and his heirs. The second appeal of Smt. Fatima Begum was disposed of by this Court by order dt. 17th Oct., 1966 in terms of the said compromise and the decree of the lower Court was modified accordingly. After the passing of the said decree by this Court Khurshid Alam died on 19th Sept., 1969, Smt. Fatima Begum expired on 16th Nov., 1971. On 27th May, 1972 non-petitioners 1, 2 and 3 as heirs and legal representatives of decree-holder Khurshid Alam, filed the execution petition giving rise to this revision for the execution of the decree passed by this Court on 17th October, 1966 in Civil Second Appeal No. 510/60. In the said execution petition, the petitioners and non-petitioner 4 were impleaded as parties in the capacity of intermeddlers of the property in dispute which was in possession of the judgment-debtor. The petitioner and non-petitioner 4 are the sons of Smt. Nasibul Jahan Begum, the daughter of Smt. Fatima Begum. In the execution petition non-petitioners 1, 2 and 3 prayed for execution of the decree by delivery of possession of the property from the petitioner and petitioner 4 who were in possession of the same as intermeddlers as well as from the other tenants in occupation of the same. In the said execution petition objections were filed by the petitioner and non-petitioner 4 on 16th December, 1972. The non-petitioners 1, 2 and 3 filed a reply to the said objections. The petitioner and non-petitioner 4 as objectors produced oral as well as documentary evidence. After the evidence had been recorded the matter was transferred to the Court of Additional Civil Judge No. 1, Kota under order of the District Judge, Kota dated 25th January, 1982. By order dt. 11th Oct., 1984, the Additional Civil Judge rejected the objections of the petitioner and non-petitioner 4. Hence this revision.

(3.) I have heard Shri Ahmad Bux, the learned counsel for the petitioner and Shri S.M. Mehta, the learned counsel for non-petitioners 1, 2 and 3.