Poonam Srivastav, J. - (1.) ON the request of the learned counsel for the appellant, record of the lower court was summoned by this Court vide order dated 2.3.1989. Record of the lower court is available. Learned counsels for the respective parties have agreed to argue the appeal finally at the stage of admission itself. The appeal is listed under Order XLI, Rule 11, C.P.C. but I proceed to hear the appeal finally.
(2.) HEARD learned counsels for the respective parties. The instant case has a very long chequered history. The contesting defendant/respondent is a decree-holder and auction purchaser of the property in dispute consequent to execution proceeding in Original Suit No. 144 of 1967, against one Kamal Chand, respondent No. 2. This was a simple money decree. In Execution Case No. 9 of 1969, the shop in question was auctioned in favour of respondent No. 1, Kamal Chand, respondent No. 2, claimed the property to be his exclusive property pursuant to the family partition dated 29.9.1966 but the said property was attached on 3.5.1968, for satisfaction of the decree. The auction sale dated 29.10.1969 was confirmed by the court below on 3.2.1970 and the sale certificate was prepared. Paper No. 6/1C relates to delivery of possession and is part of the record in Misc. Case No. 161 of 1970. The appellant, Arvind Kumar, filed an objection under Order XXI, Rule 96, C.P.C. in Misc. Case No. 161 of 1970 on 6.7.1970. The objection of the appellant was that he is a tenant of the property in question w.e.f. 15.6.1968 by virtue of a registered rent deed. This rent deed dated 15.6.1968 was brought on record but the learned Munsif recorded a finding that the appellant is in possession on the basis of the said rent deed, which was subsequent to the attachment of the property made on 3.5.1968. The learned Munsif in his judgment and order dated 27.11.1971 held that execution of the rent deed is hit by Section 64 of C.P.C.
(3.) THE appellant, Arvind Kumar, filed an appeal against the order dated 27.11.1971, which was also dismissed on 24.11.1972. The appellant did not challenge the orders passed in misc. cases in the execution proceedings, but instead preferred to institute a suit for injunction numbered as Original Suit No. 409 of 1972 in the Court of Additional Munsif V, Bareilly. The basis of injunction was that shop in question originally belonged to Pt. Mathura Prasad. After his death, his sons Ram Niwas and Kamal Chand and daughters Maya Devi and Sakuna Devi inherited the property being his heirs. The property came in possession of Ram Niwas, who executed a rent deed on 15.2.1966 in favour of the appellant at the rate of Rs. 20 per month. Subsequently, the disputed shop fell in the share of Kamal Chand, defendant/respondent No. 2 consequent to a family settlement and, therefore, another registered rent deed was executed on 15.6.1968. The claim of the appellant is that he is a tenant since the year 1966, i.e., much before attachment, therefore, Section 64, C.P.C. will have no effect whatsoever on his right and the plaintiff/appellant could not be evicted otherwise than in accordance with law.;