O.N.KHANDELWAL, J. - (1.) THIS appeal has been filed under Section 104 read with Order XXI, Rule 103, C.P.C. challenging the order dated 11.10.2002, passed by the IVth A.D.J., Agra in Execution Case No. 1 of 1976. The respondent decree holders have appeared and raised preliminary objection that this appeal is not maintainable.
(2.) RAJ Narain, the grand father of the appellant was the owner of property No. 4/157 Belanganj, Agra, in respect of which he executed a registered document on 17.4.1954, by way of family settlement and created a trust in respect of his 1/5 share in favour of his wife and three minor sons (namely Kishan Chand, Bishan Chand and Mahesh Chand). The trust was to be managed by his wife and such of his sons who attained majority from time to time. It was further provided that after all his sons attained majority, they may nominate anyone of themselves as trustee. The remaining 4/5 share of the property belonged to the wife and his three minor sons. But the sons (after attaining the majority) and their mother Smt. Kapuri Devi transferred the entire properties on 15.7.1968 (including the said trust property) in favour of Sri Bishamber Nath Agarwal. However, the vendors continued to 'occupy the same on rent at the rate of Rs. 300 per month. When the vendors/tenants defaulted in payment of rent, their tenancy was terminated by serving a legal notice. The vendors immediately instituted a Civil Suit No. 293 of 1973 for the declaration that they are owners and not the tenants giving a different interpretation to the recitals made in the sale deed. On the other hand the vendee Bishamber Nath filed an Eviction Suit No. 30 of 1973. However, both the parties compromised in the matter. The rate of rent was enhanced. Bishamber Nath also agreed to execute a reconveyance deed within a period of two years, provided the plaintiffs of O.S. No. 293 of 1973 paid Rs. 1,02,120 by 31.10.1975. It was also stipulated that in case the plaintiffs fail to pay the entire agreed amount and rent within this period, no reconveyance deed will be executed and they will have to vacate the premises.
(3.) AFTER the expiry of the aforesaid period, vendors filed a Suit No. 439 of 1975 on 29.11.1975, against Bishamber Nath Agarwal for specific performance of contract alleging therein that he has not executed the sale deed in pursuance of the compromise. On the other hand, Bishamber Nath filed the execution application No. 1 of 1976 for the eviction of the vendor -tenants. But this execution was stayed on account of the filing of the aforesaid suit which was ultimately decreed on 15.4.1983 by IVth A.D.J., Agra. Consequently the Execution case No. 1 of 1976 filed by Bishamber Nath was struck off.;