PREM CHAND Vs. ADITYA KUMAR

JUDGEMENT

(1.) Heard Sri M.D. Singh Shekhar, learned senior counsel assisted by Sri R.D. Tiwari, learned counsel for the petitioner and Sri P.K. Jain, learned senior counsel assisted by Sri M.K. Jain, learned counsel for sole respondent. The first order which has been challenged is dated 21.9.2012 passed by Civil Judge (J.D.) Hapur in execution case No. 30 of 1986 Dr. Aditya Kumar Sharma v. Prem Chand. Against the said order petitioner filed Civil Revision No. 43 of 2012 which was dismissed by A.D.J. Hapur on 18.4.2013, which has also been challenged through writ petition.

(2.) Petitioner is defendant judgment debtor and sole respondent is plaintiff decree holder. Plaintiff filed suit for eviction against defendant in the form of O.S. No. 323 of 1977 Dr. Aditya Kumar Sharma v. Prem Chand, for possession stating therein that plaintiff was landlord and defendant was his tenant over the property in dispute dimension of the property were given as 57' X 74'. Munsif Hapur decreed the suit for possession on 31.5.1986 directing the defendant to deliver possession of the land in dispute to the plaintiff after removing the construction. Appeal filed against the said order was dismissed. Thereafter Second Appeal No. 444 of 1996 was filed by the petitioner in this High Court. During pendency of first appeal before lower appellate Court execution of the decree remained stayed. However before grant of stay order Execution case No. 30 of 1986 had been filed. In the second appeal execution of the decree was stayed through order dated 19.1.1998. However, the said stay order was modified on 15.4.2010 and it was directed that apart from the land admeasuring 57' x 38', judgment debtor should be dispossessed from the remaining land i.e. 57' x 36'. Thereafter, proceedings of the execution recommenced. Through the impugned orders objection of the petitioners judgment debtor were rejected hence amin was directed to deliver possession over 57' x 36' land.

(3.) In the objections question of jurisdiction of the trial Court was also raised. In this writ petition also the main point which has been argued by learned counsel to the petitioner is that the Civil Court had no jurisdiction to pass the decree as it was a dispute between landlord and tenant and suit should have been filed before the J.S.C.C. As far as this question is concerned, it was raised in the suit also and is also sub judice in the aforesaid second appeal. A full bench of this Court reported in Manzurul Haq v. Hakim Mohsin Ali, 1970 AIR(All) 604 has held that jurisdiction of J.S.C.C. is preferential and not exclusive and decree for eviction passed against the tenant by regular Civil Court is not nullity.