MAYARANI CHAKRABORTY Vs. MIHIR KUMAR BHATTACHARYA

JUDGEMENT

(1.) This Court has heard the learned Advocates for the respective parties on CAN 1274 of 2008. The stay application has been filed with a prayer for stay of all further proceedings in title suit No. 2 of 1986 pending in the learned Second Court of Civil Judge (Junior Division), Baruipore' during the pendency of the present second appeal. The said T.S. No 2 of 1986 is an eviction suit in which the present respondent is the plaintiff and the present petitioners are the defendants. It appears that the predecessor of the present respondent, namely, one Kalyani Bhattacharya was the owner of the suit property and she had inducted the predecessor of the present petitioner (2) series, namely, one Prafullya Kumar Chakraborty, as a tenant in the suit premises. The said Kalyani Bhattacharya filed the aforesaid eviction suit against the said Prafullya Kumar Chakraborty who was the husband of the present petitioner No. 1, that is, Mayarani Chakraborty. On the death of the said Kalyani Bhattacharya the present respondent, that is, Mihir Kumar Bhattacharya was substituted in the said eviction suit. The present respondent, during the pendency of the said eviction suit, allegedly sold the suit property "to the said Mayarani Chakraborty by a registered sale deed dated 31.3.1992. But, subsquently, the present respondent filed a suit being Title Suit 59 of 1996 against the said Maayarani Chakraborty and her husband Prafullya Kumar Chakraborty for a declaration that the said sale deed dated 31.3.1992 was without consideration, void and it had no binding effect upon the present respondent, that is, Mihir Kumar Bhattacharya. The said Title Suit 59 of 1996 was decreed by the learned Civil Judge (Junior Division), 2nd Court, Baruipore declaring in favour of the present respondent and an appeal was filed by the defendants in the said suit being title appeal 8 of 2001 but such title appeal was dismissed by the learned Lower Appellate Court. The appellants/ petitioners have preferred the present second appeal challenging the judgment and decree passed by the learned Lower Appellate Court. The appeal has already been admitted by an Hon'ble Division Bench of this Court. The application being CAN 1274 of 2008 has come up for a final hearing after filing of affidavits by the respective parties.

(2.) The learned Counsel appearing on behalf of the appellants/petitioners submitted that since the appellant/petitioner No. 1 has purchased the suit property from the respondent and on the death of her husband (Prafullya) Prafullya's heirs including his wife and children have been substituted in place and stead of Prafullya in the aforesaid eviction suit there has been a merger of interest and in this connection the said learned Counsel referred to the provisions of section 111(d) of the Transfer of Property Act. He submitted that in the present circumstances the respondent herein cannot proceed with the aforesaid eviction suit and the fate of the said eviction suit very much depends upon the final decision in the instant second appeal. He submitted that in case the appellants/petitioners succeed in the present second appeal and it is found that the sale of the suit property by the plaintiff/ respondent in favour of the appellant/petitioner No. 1 is valid then, in that event, the respondent herein cannot get a decree for eviction against the appellants/petitioners. He submitted that it is imperative that this Court should stay all further proceedings in the said eviction suit. He submitted that it would not be proper to allow the present respondent to proceed with the eviction suit after he has sold the suit property to the appellant/petitioner No. 1. He submitted that at present parties in both the proceedings, that is, in the said eviction suit and in the present second appeal, are the same and this Court should pass an order of stay as prayed for by the petitioners.

(3.) He cited a decision reported at (Pir Bakhsh vs. Mohamed Tahar). The said learned Advocate relied on the said reports as it appears from the said reports the Hon'ble Court took the view that in a suit for ejectment by the registered proprietor of the land it is not a relevant defence that the plaintiff has agreed to sell the land in the suit to the defendant but if such contract for sale is still enforceable the defendant may found upon it to have the suit stayed and by suing for specific performance obtain a title which will protect him from ejectment.