RAUF KHAN Vs. SARA BIBI

JUDGEMENT

(1.) THIS revision is directed against the order passed by the Munsif, First Court, Cuttack refusing to stay the proceedings of Execution Case No. 135 of 1984.

(2.) THE facts necessary for decision of the civil revision may be stated in brief. One Zahirunissa was the owner of the suit house situate in Cuttack town. Opposite Party No. 1 claiming to be the sister and next heir of Zahirunissa filed House Rent Control Case No. 50 of 1982 before the House Rent Controller, Cuttack for eviction of the petitioner and two others named Kadan Khan and Karim Khan. The House Rent Controller, by order, dated 6.3.1984 passed an order of eviction. Against the said order, the petitioner preferred House Rent Control Appeal No. 15 of 1984 and the two others, namely Kadan Khan and Karim Khan preferred House Rent Control Appeal No. 24 of 1984 before the Chief Judicial Magistrate, Cuttack. Both the appeals were dismissed and the order of eviction was upheld. The petitioner challenged the aforesaid orders in a writ petition bearing O.J.C. No. 308 of 1985 in the High Court, but subsequently withdrew the same. Opposite party No. 1 filed Execution Case No. 135 of 1984 against the petitioner and the two others for execution of the eviction order on 11.5.1984. During pendency of the Execution case, the petitioner instituted Title Suit No. 7 of 1985 in the Court of the Munsif, First Court, Cuttack praying for a declaration that opposite party No. 1 was not the sister of Zahirunissa and had no title or interest in respect of the suit house and for permanent injunctions restraining her and others from interfering with his peaceful possession thereof. In the suit, he claimed that he was the son of Zahirunissa's brother groomed as her foster son and was the next heir, whereas opposite party No. 1 was an imposter. On 25.6.1973, a year before her death Zahirunissa had executed a Will in his favour in respect of the suit house. He had instituted O.S. No. 3/26 of 1983 in the Court of the District Judge, Cuttack praying for grant of letters of administration in his favour which is sub-judice in the Court of the Subordinate Judge, First Court, Cuttack. In view of the pendency of O.S. No. 3/26 of 1983 and pendency of Title Suit No. 109 of 1985 in which the title and possession of the petitioner shall be finally adjudicated and because of the indisputed position that he is in possession of the suit house, the petitioner filed a petition under Order 21, Rule 29 of the Code of Civil Procedure ('Code' of short) for stay of Execution Case No. 135 of 1984 till the disposal of the suits. Opposite party No. 1 in her counter, apart for denying the relationship of the petitioner with Zahirunissa, averred that she should be allowed to enjoy the fruits of the eviction order passed in her favour.

(3.) THE following points arise for consideration :-