Judgment

JAGANMOHAN REDDY, J.: - On a difference of opinion in the Allahabad High Court between Dwivedi, J. (as he then was) and Gulati, J. in First Appeal Nos. 304/69 and 182/70 they were referred to Khare, J. from whose judgment in effect this is an appeal by certificate. The question for determination is, where in a suit for partition between co-owners, one of whom had constructed on the land which is the subject-matter of the suit buildings at considerable cost, should the remedy be a direction for partition or only for payment of compensation at the market value. The land in dispute admeasuring about 1731 1/9 sq. yds. is a valuable land situated on the Grand Trunk Road in the city of Aligarh. It belonged to the estate of Babu Bajrang Bahadur, the proprietor of Bhagwati Prasad s estate which was under the management of the Court of Wards. The Collector of Aligarh granted a lease of this land on the 10th February, 1931 to M. S. Bansal for a period of 10 years on a rental of Rs. 15/- per month for the construction of a cinema house on that land. On 9-9-1937 before the expiry of the term of the first lease, another lease for 30 years was executed by the Collector in favour of M. S. Bansal at a monthly rent of Rs. 19/-. It was one of the terms in both the original and the subsequent lease that on the expiry of the term of the lease, the land would be restored to its original condition and the material and construction that may be existing, would be removed. In the course of tile subsistence of these leases, Roop Narain, the grandfather of the respondents became the owner of this land. He executed a Will in terms of which one half share in the aforesaid plot was bequeathed to the respondents and the remaining half share to Rajendra Narain. After the death of Roop Narain, the half share in the plot in question was sold by Rajendra Narain for Rs. 8,0001to M/s. M. S. Bansal (Private) Ltd., (hereinafter referred to as Bansals ) by a sale deed D/-13-9-1958, and consequently Bansals became the owners of half share of the plot. Bansals who had been lessees of the entire plot, were after the sale, not only the lessees of the Cinema Hall known as the Ruby Theatre and buildings but were owners of half the land in which they were built. On the expiry of the second lease on 8-9-l967, the respondents gave a notice on 12-9-1967 to Bansals terminating the lease. Bansals, however, sent a reply on 30-10-1967 alleging that in 1961 there had been an oral agreement of sale of the half share of Mathur Brothers the respondents, in its favour pursuant to which a sum of Rs. 2,500/- had been paid as earnest money towards the consideration of Rs. 20,000/-. The respondents denied the oral agreement set up by the appellant Bansals, and on 31-10-1967 filed a suit for partition. Eleven months thereafter, on the 26th September, 1968 Bansals filed a suit for specific performance of the sale agreement alleged to have been arrived at between the parties in 1961 and offered to pay the consideration of list 17,500/-. The trial Court dismissed the suit for specific performance on the ground that M. S. Bansal was not authorised to enter into the agreement on behalf of Bansals and consequently, the agreement is not binding either on Bansals or on the respondents. In the suit filed by the respondents, it was held that no partition could be directed as the equity was in favour of Bansals. Accordingly both the suits were dismissed in respect of which two appeals were filed, one by each of them. First Appeal 304/69 was filed by the respondents who were plaintiffs in the partition suit and First Appeal 182/70 was filed by Bansals, plaintiffs in the suit for specific . performance. Both the learned Judges, Dwivedi, J. (as he then was) and Gulati, J. were agreed for different reasons that the suit for specific performance could not be decreed and accordingly that appeal was dismissed. In the appeal against the judgment dismissing the partition suit, as already adverted to,