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Judgment
M. Katju, J.
The writ petition has been filed against the impugned order dated 281991, Annexure 10 to the writ petition.
I have heard Sri Swami Dayal for the petitioner and Sri B. D. Mandhyan for the respondent.
The facts of the case are that one Sri Abdul Rashid Khan was the owner of the following properties:
(i) Mohalla KotaHouse No.2, Khurja, Bulandshahr.
(ii) Mohalla SalmahakanHouse No. 99, Khurja Bulandshahr
(iii) Crown Engineering worksland and building khurja Bulandshahr.
Abdul Rashid Khan had four sons including the petitioner and respondent No. 2. On his death his properties devolved in his four sons. It is alleged in paragraph 4 of the petition that on 3151974, an agreement in writing was executed between the petitioner and the respondent No. 2 by which it was agreed that the respondent No.2 would transfer his one fourth share both in house No.2 as well as in house No.99 for a consideration of Rs. 13.000A and Rs. 1100/respectively. It was further agreed that the petitioner would transfer his share in the land and building of Crown Engineering works in favour of respondent No. 2 for a consideration of Rs, 42,210/ True copy of the said agreement is Annexure1 to the writ petition. Subsequently, it is alleged that there was a family partition on 3131975 between the four sons of Abdul Rashid Khan and by virtue of this partition it is alleged that the petitioner because the owner of 3/4th share in house No. 2. He also came to acquire 3/4 th share in house No. 99. True copy of the partition deed is Annexure2 to the petition. In Crown Engineering Works the petitioner and his brother were partners and this firm was dissolved and the petitioner was given one bigha land besides the construction existing thereon and it was this property which was agreed to be transferred to respondent No. 2 under the agreement dated 3151974 for a consideration of Rs. 42,270.
Subsequently, on 17101975, another agreement was executed between the petitioner and the respondent No. 2. Under this agreement, the terms of the earlier agreement dated 3151974 were radically changed. It was agreed in this subsequent agreement dated 17101975 that the respondent No. 2 would transfer his l/4th share in house No. 2 for a consideration of Rs. 13.000/ but it was also provided that the petitioner was to sell his 3/4 share in house No. 99 for a consideration of Rs. 6,000/. As regards the share of the petitioner in Crown Engineering Works, It was provided that the petitioner would transfer his share, i.e one bigha land and the construction thereon for a consideration of Rs.42,000/ in favour of respondent No. 2 True copy of the agreement dated 17.10.1975 is Annexure3 to the petition. It is alleged in paragraph 8 of the petition that this agreement dated 17101975 was obtained by the respondent No. 2 by undue influence and duress upon the petitioner.
In paragraph 9 of the petition, it is alleged that since the respondent No. 2 refused to perform the terms of the agreement dated 3151974, the petitioner was compelled to file suit No. 252 of 1976 for specific performance of the agreement. True copy of the plaint of that suit is Annexure4 to the petition. In paragraph 10 of the petition, it is mentioned that the petitioner served a notice dated 20101975 to the respondent No. 2 repudiating the agreement dated 17101975. In paragraph 11 of the petition, it is alleged that as a counter blast to the petitioner''s, suit, the respondent No. 2 also filed a suit for specific performance of the agreement dated 17101975 being suit No. 103 of 1979. In this suit the respondent No. 2 claimed a decree for specific performance of the agreement dated 17101975.
Both the above suits were consolidated and ultimately the trial court dismissed the petitioner''s suit No. 252 of 1976 and decreed the suit No. 103 of 1979 filed by the respondent No. 2 This judgment was delivered on 1101981. In this judgment, the trial court held that the agreement dated 17101975 prevailed over the agreement dated 3151974 and that there was no coercion in the execution of the agreement dated 17101975. Against the judgment in suit No. 103 of 1979, the petitioner filed an appeal No. 2 of 1982 in the High Court while against the judgment in suit No. 252 of 1976 the appeal was filed in the District Court, which was subsequently transferred to the High Court, and was registered as FAFO No. 273 of 1983.
These two appeals were ultimately decided by the High Court on 2521986. True copy of the judgment of the High Court is Annexure7 to the writ petition. A perusal of the judgment of the High Court shows that the High Court has decreed the suit No. 252 of 1976 for specific performance of the contract to sell dated May 31, 1974 in respect of l/4th share in house No. 2 by the respondent in favour of the appellant Ahsanul Rashid Khan (the petitioner in the present writ petition) for a consideration of Rs 13000/ and for possession. As regards suit No. 103 of 1979, the High Court directed that it shall stand decreed for specific performance of the agreement to sell dated 17101975 in respect of house No. 99 for a consideration of Rs. 6000/ and in respect of the land and construction pertating to the Crown Engineering Works to the defendant in dispute for a sum of Rs. 42,000/ besides possession over the same. Against this judgment dated 2521986, a special leave petition was filed in the Supreme Court being SLP No. 7553 of 1986 which was dismissed on. 251994 by the Supreme Court. A photostat Copy of the order of the Supreme Court is Annexure SA 1 to the supplementary affidavit filed by the petitioner.
In pursuance of the judgment of this Court dated 2521986 (which was upheld by the Supreme Court), the petitioner filed an execution application for execution of the sale deed in respect of l/4th Share in house No. 2. by the respondent No. 2 and for mesne profits. It is alleged in paragraph 30 of the writ petition that since the petitioner had become owner of the 3/4th share in house No. 2 and he got the remaining 1/4th share by virtue of the judgment and decree of this court dated 2521986, he is entitled to physical possession of house No. 2. and he moved an application under Section 144, CPC. The Courts below rejected both the applications, against which the petitioner filed an appeal in the court below being appeal No. 39 of 1989 and a revision being Civil Revision No. 124 of 1989. True copy of the order of the Vth Add. District Judge dated 281991 passed in the revision is Annexure 10 to the petition. It is this order which is assailed in this writ petition.
I have carefully perused the impugned order dated 281991. The learned Addl. District Judge was of the opinion that in the judgment dated 25286 the High Court did not pass a decree of possession of the entire house No. 2 situated in Mohalla Kote, Khurja Bulandshahr but only l/4th share therein. Hence, according to the learned Addl. District judge, the petitioner is not entitled to the possession over the entire house No. 2 as the decree was in respect of l/4th share of the said house.
I am unable to agree with the order dated 281991 of the learned Addl. District Judge. The petitioner had initially 1/4 share in house No. 2 and subsequently, by virtue of the family partition on 3131975, he acquired the share of his brothers Rizwanul Rashid Khan and Sultanul Rashid Khan and thus the petitioner acquired 3/4th share in house No. 2. Thereafter, by virtue of the agreement dated 17101975 whose specific performance has been decreed by the High Court, vide judgment dated 2521986, the petitioner is entitled to the remaining l/4th Share in house No. 2. Thus the petitioner has become entitled to the entire house No. 2. The respondent No. 2 had only l/4th share in house No. 2 and this he agreed to transfer to the petitioner by the agreement dated 17101975 whose specific performance has been decreed by this Court.
Thus, now the respondent No. 2 has no interest at all in house No. 2 and hence he has no right to remain in possession thereof. The respondent No. 2 has lost all interest in house No. 2 after the agreement dated 3151974 and 17101975 particularly since the specific performance of that agreement has been decreed by this Court by the Judgment dated 2521986 which has been upheld by the Supreme Court.
Learned counsel for the respondent No. 2 Sri B. D. Mandhyan contended that the possession of house No. 2 cannot be given to the petitioner unless suit for partition is filed by the petitioner. This plea, in my opinion, is not available to the respondent No. 2 since he cannot claim any petition as he has now no title or interest in house No. 2. If the respondent No. 2 had still any interest in house No. 2, he could certainly have claimed that he cannot be evicted without any partition. But as I have pointed out above, the respondent No. 2 had only l/4th share in house No. 2 and after the agreements dated 3151974 and 17101975, which have been ordered to be specifically enforced, he has now no interest in house No. 2
Shri Mandhyan then contended that the judgment of this Court dated 2521986 had decreed the suit for specific performance of the agreement to sell dated 3151974 in respect of only onefourth share in house No. 2 and for possession. He contends that there is no decree for possession over the whole house No. 2 in favour of the petitioner. This argument overlooks two facts: (i) The petitioner had already become owner of threefourth share in house No. 2 after the partition dated 3131975, and hence when he acquires the remaining onefourth share he is entitled to possession over the entire house, since ordinarily possession follows title : (ii) The respondent No. 2 had originally only onefourth share in house No. 2, and hence after the judgment of this Court dated 2521986 he has no share in it at all. Hence he has now no right to remain in possession.
Shri Mandhyan then contended that the suit was only for specific performance, and hence a decree for possession could not be passed. This argument overlooks prayerB of the plaint in suit No. 252 of 1976. Moreover, the judgment of this Court dated 2521986 cannot be brushed aside or ignored. On a fair reading of the said judgment, the only conclusion one can reach is that the petitioner''s suit for specific performance in respect of house No. 2 including the prayer for possession has been decreed. At any event, it is always open for this Court to mould the relief in order to do justice. The agreements in question were of the years 1974 and 1975, and it has taken over 20years to enforce these agreements. If now the petitioner is driven to file another suit for possession which takes another twenty years to be finally decided, it will make a mockery of justice.
Hence I quash the impugned order dated 281991 and direct the execution Court as well as respondent No. 2 to comply with the judgment of this Court dated 2521986. The respondent No. 2 shall handover possession of house No. 2 to the petitioner within two months of the date of this judgment. Petition allowed. No order as to costs.