B.L. Loomba, J. - (1.) IN this writ petition under Article 226 of the Constitution of India, controversy relates to a portion of house No. 970/ 971/972 situate in mohalla Sadar Bazar, Lucknow. This property has been the subject matter of long drawn litigation between the parties. Smt. Mohd. Jehan Begum (respondent No. 3 in this writ petition) along with another, filed Suit No. 23 of 53 in the Court of Civil Judge, Lucknow under Section 9 of the Specific Relief Act. The case set up by her was that the disputed part of the house came in her share and possession after the death of her husband in partition amongst the co -owners and she had let out to one Prem Kant Srivastava. The tenant indicated his intention to vacate the house but before he could actually vacate and deliver possession to her the defendants broke open the room and took unauthorised possession of this property on 26.8.56 The defendants in the suit, including the present petitioner Shafiqur Rahman Khan (defendant No. 9 in the suit) pleaded, through their joint written statement, that they were in fact in possession of this property and had been paying house and water tax in respect thereof. They denied the alleged partition and the exclusive possession of the plaintiffs and according to them, Smt. Mohd. Jehan Begum married one Ahmad Mirza alias Majjan in March. 1965 and her rights were lost on account of remarriage The said suit was decreed by the Civil Judge by his judgment and order dated 18.5.62 (copy of the judgment has been provided by learned counsel for the respondent). In proof of the claim of partition, a map was put by the plaintiffs which contained the signatures of respondent Smt. Mohd. Jehan Begum and defendant No. 1 in the suit Smt. Zohra Khatoon. It also contained the signatures of one Mohd. Akram Husain, Advocate and Shri Zahurul Hasan the then Revenue Secretary in the U.P. Government. The map was said to have been prepared and also signed by one Abdul Razzaq, Amin, who had by then died. Shri Mohd. Akram Husain, Advocate appeared as witness to testify the factum of partition and the signatures of the parties and the witnesses in proof thereof including the marking of the disputed property by the red colour in the map. According to him the partition was done by metes and bound through the intervention of Shri Fazular Rahman Khan and Zahurul Hasan and partition walls were put up to separate the portion in suit and she was put in actual possession thereof. It was also testified that the plaintiff remained in actual possession of this property. Prem Kant Srivastava also appeared in the witness box to testify that he remained in occupation of this property from August 1955 to 26.8.56 as tenant of plaintiff Smt. Mohd. Jehan Begum. One Kailash Nath Kapoor, Advocate also appeared as a witness for the plaintiff. From the side of the defendants there was the sole testimony of Smt. Zubeda Khatoon, defendant No. 2 daughter of defendant No. 1 Smt. Zohra Khatoon She did not deny the occupation of Prem Kant Srivastava but according to her the portion was not separated by any partition wall. Upon the evaluation of the evidence, the learned Civil Judge accepted the plaintiff's case as to the partition and her exclusive possession and also the fact that she was dispossessed by the defendants within six months of their filing of the suit. The suit was, accordingly, decreed and the defendants were required to deliver back possession of the disputed property forthwith.
(2.) AGAINST the judgment of Civil Judge, Lucknow dated 18 -5 -62, a revision was filed before this court which was dismissed on 17.1.64. Difficulties arose in the execution of the decree. Objections were raised as to the identity of the disputed property. The Civil Judge rejected the objections and held that the decree could be executed and possession delivered on the basis of partition map treating it as part of the decree. Revision No. 149 of 74 was allowed by the Additional District Judge on 19 -4 -79 with the observation that the partition walls having already been demolished the property could not reasonably be identified on the basis of boundaries. The matter reached High Court Through W.P. No. 33 of 1980 which was decided on 30 -6 -80. The High Court agreed with the Civil Judge and held that the decree could be executed with the help of map Ext. 3. However, it was directed that the executing court could satisfy that Ext. 3 was actually the map which was filed before the court through which the property was subjected to partition. The matter was eventually taken by defendants judgment -debtors before the Supreme Court in Civil Appeal No. 1649 of 1980. The Supreme Court set aside the judgment of the High Court and restored the judgment of Additional District Judge subject to the following modifications: - - (1) With the help of Ext, 3 and such other evidence as the parties may adduce, the court would determine whether decree -holder had established satisfactorily the identity of the property in regard to which they had obtained decree under execution. (2) If the identity of the property was established but not otherwise, the decree would be executed and the decree holder would be put in possession of the property. The Judgment -debtor, of course, had the liberty of showing that the decree was not executable. After the decision by the Supreme Court the matter came up for consideration and disposal before the then District Judge, Lucknow in Misc. Case No. 62C of 1973 arising out of Execution Case No. 12 of 1964. This misc. case was decided by the then District Judge, Sri Kamleshwar Nath, by order dated 29 -4 -82, (Annexure -1) to the counter -affidavit dated 4 -5 -89 of the respondent Smt. Mohd. Jehan Begum, in this writ petition (factual position about the litigation after the judgment of the civil Judge dated 18 -5 -62 has been stated above on the basis of what is contained in the judgment of District Judge. Lucknow dated 29 -4 -82).
(3.) THE District Judge, Lucknow went into all the necessary details about the boundaries and structural details of the house in the context of the partition map, Ext. 2, and the material which was brought before the court by evidence of the parties. It appears, report of the Advocate Commissioner had also been obtained in the matter. A categorical finding was recorded that the map Ext. 3 correctly indicated the property in respect of which the suit was filed and the plaintiff decree holder was entitled to be put in possession. The objection under section 47 CPC was, accordingly dismissed and Shri Syed Mohd. Ibne Ali, Advocate, was appointed to deliver possession of the property to the decree holder. Long last, this respondent Smt. Mohd. Jehan Begum was put in possession of this property on 23 -3 -83.;