SHRIRAM Vs. SMT. RADHA KHAREY AND OTHERS

JUDGEMENT

(1.) This appeal is preferred by the appellant before this Court challenging the order dated 12.12.2012 passed by the learned Additional District Judge, E.C. Act, Jhansi in Misc. Case No. 43 of 2001, Shriram Vs. Smt. Radha Kharey and others by which the application under Sec. XXI, Rule 97, 101 read with Sec. 151 Civil Procedure.Code. filed by the plaintiff appellant is dismissed by the Court.

(2.) The brief facts which give rise to this Appeal are that third party Sri Ram moved an application under Sec. XXI, Rule 97, 101 read with Sec. 151 Civil Procedure.Code. alleging therein that he is the tenant of two rooms, latrine and bathroom at second floor of house no. 98 new number 127 situated at Mohalla Laxman Ganj, Jhansi at a monthly rent of Rs. 300.00. On behalf of opposite party earlier the rent was received by husband of Smt. Radha Kharey plaintiff-opposite party (hereinafter called 'respondent') late Sri Anil Kharey and after his death the respondent started receiving rent but no receipt of the rent was issued to him. The rent up to the month of April 2011 was paid by the appellant and the rent for the month of June and July, 2011 was sent through money order but on refusal the rent was deposited under Sec. 30 of Act No. 1972 in Misc. Case No. 40 of 2011, Sri Ram Vs. Radha Khare . The portion under tenancy of appellant is adjacent to the portion of one Kamlesh Sahu and there is no door in between them. In suit no. 18 of 2009, which was instituted against Kamlesh Sahu, a compromise was arrived at between the Respondent and Kamlesh Sahu and a decree for eviction of Kamlesh Sahu was passed on 14.07.2011. When the Amin Deewani came to deliver the possession of the portion under tenancy of Kamlesh Sahu, he tried to evict the appellant from his tenanted portion in the garb of above said decree. It has further been alleged that the appellant along with his family is residing in the said house and obtained ration card from the said address. Several other documents have been issued at the present address of the appellant. There is no relevancy from the tenanted portion of Kamlesh Sahu and both the portion are different and independent. The appellant filed several documents regarding his possession but the court has passed the order to deliver the possession with the help of police on 02.08.2011. When the appellant come to know of this fact, he moved the present application with the allegation that the decree passed in S.C.C. Suit No. 18/2009 is not binding upon him. He was not party to the suit and the decree holder in the garb of the decree wants to evict him from his tenanted portion.

(3.) The decree holder (respondent) filed objections against the said application stating therein that the said application under Order 21 Rule 97 read with Sec. 151 Civil Procedure Code has been moved on false and fabricated grounds in collusion with judgement debtor of SCC Suit No. 18 of 2009. The appellant Sri Ram is the real brother of the judgement debtor Kamlesh Sahu and his wife Ranjana Sahu is the real sister of Smt. Rakha Sahu wife of Kamlesh Sahu, judgement debtor. They are in collusion of each other and have got this application moved only to delay the delivery of possession. The boundaries of tenanted possession of Kamelsh Sahu are mentioned in the plaint and the wife of Kamlesh Sahu filed written statement in the eviction suit. She did not disclose this fact that the appellant was also a tenant of the portion of house in dispute. It has been specifically pleaded that the appellant is the real brother of judgement debtor and he has never been a tenant of any portion of house in question nor he has paid rent to respondent or his husband late Anil Khare. The alleged deposit of rent under Sec. 30 of U.P. Act No. 1972 is not binding on her. The application is not maintainable and is liable to be dismissed.