Imambi Vs. Azeeza Bee
EmailAppeal: Civil Appeal No. 2633 of 2000
(Arising out of S.L.P. (C) No. 5565 of 1999)
(Arising out of S.L.P. (C) No. 5565 of 1999)
Petitioner: Imambi
Respondent: Azeeza Bee
Apeal: Civil Appeal No. 2633 of 2000
(Arising out of S.L.P. (C) No. 5565 of 1999)
(Arising out of S.L.P. (C) No. 5565 of 1999)
Judges: A.P. MISRA & D.P. MOHAPATRA, JJ.
Date of Judgment: Jul 04, 2000
Head Note:
CIVIL LAW
Civil Procedure Code, 1908
Section 47 with Specific Relief Act 1963 – Section 16(c) and Transfer of Property Act, 1882 – Section 53A – Tenant purchasing from wife/co-owner – Husband obtaining eviction decree – Execution by seller/wife – High Court upholding right of tenant to get sale-deed in respect of half-share – Execution by both parties – Tenant admittedly put in possession – Yet, execution of seller/wife allowed – High Court on revision holding that tenant continues to be tenant irrespective of sale-deed – Status of tenant – If that of owner and he can not be evicted. Held that after sale deed, she became co-owner with landlord. Hence High Court order set aside. Abdul Alin’s case followed
(Paras 5, 7)
Cases Reffered:
1. Abdul Alin v. Sheikh Jamal-Uddin Ansari and Ors. (1999 (1) SCALE 175)
JUDGEMENT:
ORDER
1. Leave granted.
2. Heard learned Counsel for the parties. The short facts are that the building in which the appellant resides, belongs to Azeeza Bee and her husband A. Khareemuddin.
3. The husband of respondent, Azeeza Bee, executed an agreement of sale in favour of the appellant in respect of the disputed building. However, when the sale deed was not being executed the appellant filed a suit for specific performance before the III Assistant Judge, City Civil Court, Madras, which was dismissed. On the other hand, the husband of the said respondent earlier filed a petition for the eviction of the appellant on the ground of his bona fide need. This petition was decreed. The appellant filed an appeal which was also dismissed. Thereafter, the respondent entered into an agreement with the appellant on 22nd November, 1981 representing that she is the full owner of the property. However, a suit for specific performance was dismissed by the trial court as aforesaid. The matter came to the High Court. In the meanwhile, on the basis of the eviction order passed earlier, execution petition was filed by the respondent. The same was dismissed by the executing court on the ground that the appellant’s predecessor has obtained an agreement for sale with the respondent-decree holder. This order was challenged in revision before the High Court. It is pertinent to mention during the pendency of this revision before the High Court. It is pertinent to mention during the pendency of this revision before the High Court respondent’s husband died and she was impleaded as his legal representative. All these matters were clubbed together by the High Court and were disposed of by a common order dated 4th December, 1996. The High Court upheld the right of the appellant to get her sale deed executed to the extent of half share only. It also ordered to proceed with the execution in respect of the other half share in accordance with law.
4. In view of this the execution petition of the respondent was again restored. Thereafter, the appellant also filed execution petition for the execution of sale deed as per aforesaid High Court order. This was allowed on 30.3.1998 and sale deed in pursuance was executed on the 17.4.1998 for undivided half share. The appellant thereafter filed suit for partition and injunction. The appellant is admittedly put in possession of the same also. The appellant’s case is, because of this now nothing survived in Execution petition no. 1095 of 1992 of the respondent. In spite of this, the executing court allowed respondent’s execution petition and directed appellant to deliver the possession to the respondent. Against this, appellant filed a Revision Petition before the High Court, which was also dismissed. The High Court held, it had already decided by its earlier order that the appellant continues to be the tenant, notwithstanding the said agreement of sale against this order present appeal is filed.
5. Thus, only question which arises for our consideration is, whether status of a tenant would continue to be so even after an agreement of sale is executed by such tenant with the landlord in respect of the same tenanted premises. Having heard learned Counsel for the parties, we find the matter is covered by the decision of this Court. The status of such tenant, after execution of the said agreement of sale ceases to be such which is changed to that of a purchaser and when a sale deed is executed, as in this case of the half share of the said property, such tenant becomes co-owner with the landlord. This Court held to the similar effect in Abdul Alin v. Sheikh Jamal-Uddin Ansari and Ors. (1999 (1) SCALE 175).
6. In view of this we hold the High Court committed error in law in recording to the contrary and dismissed the Revision Petition of the appellant.
7. We accordingly set aside the order of the High Court dated 27.1.1999 and allow the initial application of the appellant under Section 47 C.P.C. We are also informed, that a preliminary decree has already been passed in respect of the half share in the partition suit filed by the appellant. Accordingly this appeal is allowed. Costs on the parties.
1. Leave granted.
2. Heard learned Counsel for the parties. The short facts are that the building in which the appellant resides, belongs to Azeeza Bee and her husband A. Khareemuddin.
3. The husband of respondent, Azeeza Bee, executed an agreement of sale in favour of the appellant in respect of the disputed building. However, when the sale deed was not being executed the appellant filed a suit for specific performance before the III Assistant Judge, City Civil Court, Madras, which was dismissed. On the other hand, the husband of the said respondent earlier filed a petition for the eviction of the appellant on the ground of his bona fide need. This petition was decreed. The appellant filed an appeal which was also dismissed. Thereafter, the respondent entered into an agreement with the appellant on 22nd November, 1981 representing that she is the full owner of the property. However, a suit for specific performance was dismissed by the trial court as aforesaid. The matter came to the High Court. In the meanwhile, on the basis of the eviction order passed earlier, execution petition was filed by the respondent. The same was dismissed by the executing court on the ground that the appellant’s predecessor has obtained an agreement for sale with the respondent-decree holder. This order was challenged in revision before the High Court. It is pertinent to mention during the pendency of this revision before the High Court. It is pertinent to mention during the pendency of this revision before the High Court respondent’s husband died and she was impleaded as his legal representative. All these matters were clubbed together by the High Court and were disposed of by a common order dated 4th December, 1996. The High Court upheld the right of the appellant to get her sale deed executed to the extent of half share only. It also ordered to proceed with the execution in respect of the other half share in accordance with law.
4. In view of this the execution petition of the respondent was again restored. Thereafter, the appellant also filed execution petition for the execution of sale deed as per aforesaid High Court order. This was allowed on 30.3.1998 and sale deed in pursuance was executed on the 17.4.1998 for undivided half share. The appellant thereafter filed suit for partition and injunction. The appellant is admittedly put in possession of the same also. The appellant’s case is, because of this now nothing survived in Execution petition no. 1095 of 1992 of the respondent. In spite of this, the executing court allowed respondent’s execution petition and directed appellant to deliver the possession to the respondent. Against this, appellant filed a Revision Petition before the High Court, which was also dismissed. The High Court held, it had already decided by its earlier order that the appellant continues to be the tenant, notwithstanding the said agreement of sale against this order present appeal is filed.
5. Thus, only question which arises for our consideration is, whether status of a tenant would continue to be so even after an agreement of sale is executed by such tenant with the landlord in respect of the same tenanted premises. Having heard learned Counsel for the parties, we find the matter is covered by the decision of this Court. The status of such tenant, after execution of the said agreement of sale ceases to be such which is changed to that of a purchaser and when a sale deed is executed, as in this case of the half share of the said property, such tenant becomes co-owner with the landlord. This Court held to the similar effect in Abdul Alin v. Sheikh Jamal-Uddin Ansari and Ors. (1999 (1) SCALE 175).
6. In view of this we hold the High Court committed error in law in recording to the contrary and dismissed the Revision Petition of the appellant.
7. We accordingly set aside the order of the High Court dated 27.1.1999 and allow the initial application of the appellant under Section 47 C.P.C. We are also informed, that a preliminary decree has already been passed in respect of the half share in the partition suit filed by the appellant. Accordingly this appeal is allowed. Costs on the parties.
