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2018 Supreme(All) 1794
IN THE HIGH COURT OF ALLAHABAD
SUNITA AGARWAL, J.
Smt. Meena Devi - Appellant
Versus
Board of Revenue U.P. - Respondent
Writ-B No. 1579 of 2018
Decided On : 12-01-2018
For the Appellants :Rahul Mishra and Abhishek Mishra, Advocates
For the Respondents:C.S.C, Mahesh Narain Singh and Punit Kumar Gupta, Advocates.
The operative status of a decree of specific performance is subject to pending appeal findings and the execution of a sale deed.
Headnote:
Specific Performance - Land Dispute - Transfer of Property Act, 1882 - Section 52
Fact of the Case:
The petitioner filed a suit for specific performance of an agreement for land. After the judgment debtor's death, her heirs sold the land to respondent no. 4. The petitioner objected, citing a decree of specific performance and claimed possession over the land.
Finding of the Court:
The court found that the decree of specific performance was not operative as it was subject to pending appeal findings. The petitioner's claim for possession and objection to mutation of names was rejected.
Issues: Validity of decree of specific performance, possession of the petitioner, mutation of names, applicability of Transfer of Property Act, 1882
Ratio Decidendi: The decree of specific performance was not operative until pending appeal findings were determined. The petitioner's objection to mutation was premature as it required the execution of a sale deed.
Final Decision: The writ petition was dismissed as devoid of merits.
SUNITA AGARWAL, J.
1. Heard Sri Rahul Mishra learned counsel for the petitioner and Sri Shashi Nandan learned Senior Counsel assisted by Sri Punit Kumar Gupta learned counsel for the respondent no. 4.
2. With the consent of learned counsel for the parties the writ petition is being decided at the admission stage itself without calling for a counter affidavit.
3. By means of the present petition, the order dated 15. 11. 2017 passed by the Board of Revenue, Meerut and the order dated 09. 04. 2010 passed by the Additional Commissioner, Meerut Division, Meerut in revision filed by the respondent no. 4 against the order dated 02. 02. 2009 passed in appeal filed by the petitioner has been challenged.
4. It appears that the petitioner had filed a suit for specific performance of agreement executed by Smt. Rafiqan who was the original tenure holder of the land in question.
5. The said suit was decreed on 17. 05. 1996 in the appeal filed by Smt. Rafiqan, on 23. 04. 2008, on an application moved by the appellant namely the judgment debtor, issue no. 1 framed by the trial court was re-framed and four new issues namely issue nos 2-A to 5-A were framed and were remitted back to the trial court for recording fresh finding on those issues after taking evidence of the parties. The issues and amended issue no. 1 framed by the appellate court as noted above are as under:-
1- D;k Áfroknuh us fnukad 10-4-1980 dks oknh ds i{k esa foØ; lafonk fd;k rFkk 5144@& :i;s vfxze Hkqxrku ds :i esa ÁkIr fd;s tSlk fd okni= dh /kkjk&1 esa mfYyf[kr gS\
2- D;k oknh foØ; lafonk dh 'krksZ ds vuqlkj vuqikyu djus ds fy, ges'kk rS;kj jgk gS rFkk vc Hkh gS ;fn gka rks bldk ÁHkko\
3- D;k okn dky ckf/kr gS\
4- D;k dfFkr foØ; vuqcU/k] Áfrokfnuh ij ck/;dkjh ugha gS ;fn gka rks bldk ÁHkko\
5- oknh dk vuqrks"k D;k gS\
6- D;k Áfrokfnuh ds ifr Jh vCnqy 'kdwj e`rd }kjk] fookfnr Hkwfe dk iathd`r fgcsukek fnukad 29-11-1971 ds vk/kkj ij] Áfrokfnuh dks fookfnr Hkwfe dk cSukek ;k eqgk;nk c; dk vf/kdkj ugha Fkk tSlk fd Áfrokn i= dh /kkjk&12 ,oa mldh mi/kkjkvksa esa dgk x;k gS ;fn gka rks bldk ÁHkko\
7- D;k okn ds nks fHkUu&fHkUu dkj.k mRiUu gksus ds dkj.k] ,d gh okn ;ksftr djus ds dkj.k] ;g okn la/kkj.kh; ugha gS tSlk fd Áfrokni= esa dgk x;k gS] ;fn gka rks bldk ÁHkko\
8- D;k Áfrokfnuh us 5000@& :i;s C;kt lfgr oknh dks okil dj fn, gSa tSlk fd Áfrokn i= esa mfYyf[kr gS] ;fn gka rks bldk ÁHkko\
la'kksf/kr okn fcUnq la[;k&1
^^D;k Áfroknuh us fnukad 10-04-1980 ,oa fnukad 24-4-1981 dks Á'uxr lEifRr ds foØ; ds vuqcU/k i= oknh ds i{k esa fu"ikfnr djrs gq;s Øe'k% vfxze /kujkf'k ds :i esa vadu 5]144@& :i;s ,oa vadu 40]000@& :i;s fofHkUu frfFk;ksa ij ÁkIr fd;s] tSlk fd okni= esa vfHkdfFkr gS\**
6. It appears that in the meantime, Smt. Rafiqan, the judgment debtor died and the names of her heirs were recorded in the records of rights namely the revenue records. They had executed a sale deed in favour of the respondent no. 4 on the basis of which mutation proceedings were drawn by respondent no. 4. In the said mutation proceeding, objections was taken by the petitioner that she was holding a decree of specific performance passed by the competent court whereby the judgment debtor namely Smt. Rafiqan was directed to execute sale deed in her favour. It was also contended by the petitioner therein that in an injunction suit filed by Smt. Rafiqan subsequent to passing of the decree dated 17. 05. 1996, the competent court had returned findings regarding possession of the petitioner over the land in question.
7. On a query made by the Court, learned counsel for the petitioner drew attention to the Court to the judgment and decree dated 17.05.1996 passed in the suit for specific performance namely Original suit no. 1279 of 1988.
8. A perusal of the said decree indicates that no issue was framed on the question of possession nor there is a finding regarding the possession having been delivered to the petitioner at the time of execution of the agreement to sell. There is no finding at all. The findings re
