RAJENDRA NARAYAN DAS AND ORS. Vs. MINATUNNISA BIBI

JUDGEMENT

(1.) ONE Balakrushna Das had 2 sons, deceased Girish Chandra Das and Rajkrushna Das. The five Petitioners are the sons of Girish Chandra. On 12th of August, 1946, the Petitioners filed T.S. No. 32 of 1946 in the Court of Subordinate Judge, Cuttack for partition of all their joint family properties including the disputed house which is situate in Choudhury Bazar in Cuttack town claiming - /8/ - annas interest in the entire property. On 30th of October, 1946, Rajkrushna sold the entire disputed house to Bharat Industrial Bank which was impleaded as a party to the partition suit. The suit was dismissed by the Additional Subordinate Judge on 22nd of December, 1948. On 5 -7 -1955, the First Appeal No. 18 of 1949 filed by the Petitioners was allowed and a preliminary decree for partition was passed. It may incidentally be stated that the judgment of the be High Court was confirmed by the Supreme Court on 7 -5 -1964 dismissing Rajkrushna's appeal No final decree has yet been passed. During the pendency of the First Appeal, Rajkrushna entered into an agreement for sale 24 -4 -1951 in respect of the disputed house with Minatunnisa Bibi (Opposite party). It may be noted that Rajkrushna had no interest by that time as he had sold the house to' Bharat Industrial Bank on 30 -10 -1946. Sometime in 1951, one Sridhar Panigrahi in execution of a decree against the Bharat Industrial Bank brought to sale -/8/ - annas interest in the disputed house. The opposite party filed an application under Order 21, Rule 58, Civil Procedure Code on 1 -2 -1954 on the basis of the agreement for sale dated 24 -4 -1951. This application was dismiss on 3 -2 -1954. On 22 -5 -1954, opposite party filed T.S. No. 18/37 of 1957/54 in the Court of the Subordinate Judge, Cuttack under Order 21, Rule 63, Code of Civil Procedure Code. In that suit, Sridhar Panigrahi, Bharat Industrial Bank and Rajkrushna were made parties. Petitioners were, however, not made parties to the suit. On 22 -6 -1954, the opposite party took a sale deed from Rajkrushna in accordance with the agreement dated 24 -4 -1951. T.S. NO',18/.37 of 1957 /54 is dismissed on 0 -1 -1958.F. No. 43 of 1958 filed by Opposite party ended In a compare on 13 -12 -1961. Under the compare Bharat Industrial Bank and Sridhar Panigrahi abandoned their claim to the disputed house in favour of the opposite party on payment of certain amount. As the Petitioners were not parties to the suit, they were also not parties to the compare. On 22 -2 -1962, the opposite party filed T.S. 16 of 1962 against Rajkrushna for recovery of possession. This suit was decreed on terms of compare on 16 -4 -1962. The Petitioners assert that they were forcibly dispossessed from the entire disputed house which was in exclusive possession of themselves and their tenants in execution of the aforesaid decree on 1 -6 -1'3(12. They filed miscellaneous Case No. 106 of 1962 on 19 -6 -1962 under Order 21, Rule 100, Code of Civil Procedure Code. The tenants also filed certain miscellaneous Cases which do not constitute the subject matter of this application. The learned Subordinate Judge allowed the application under Order 21, Rule 100, Code of Civil Procedure with the following direction:

(2.) MR . Mohapatra for the Petitioners contents that the Petitioners were in exclusive possession of the disputed house through themselves and through the tenants and that though Rajkrushna had -/8/ - annas interest in the disputed house, he not being in physical possession of any portion of the house, the opposite party was entitled to symbolic possession under Order 21, Rule 35(2), Code of Civil Procedure in execution of the decree in T.S. No. 16/62 and that the Petitioner was entitled to be restored to the possession of the entire house under Order 21, Rules 100 and 101, Code of Civil Procedure Code. Mr. Mohanty, on the other hand contends that on 1 -6 -1962, the Petitioners were dispossessed in execution of the decree in T.S. 16/62 even though they had -/8/ - annas interest in the disputed house. Once they were dispossessed in execution of the decree, even if wrongly they cannot be put back into physical possession but would be entitled to be put into joint possession under Order 21, Rule 35(2), Code of Civil Procedure and they would work out their rights either in a properly constituted partition suit or in course of the final decree proceedings arising out of T.S. No. 32/46. He also contends that Rajkrushna and not the Petitioners was in exclusive possession of the disputed house. The rival contentions require careful examination.

(3.) MR . Mohanty, however, contends that even on the assumption that the Petitioners were in exclusive possession of the disputed house on the date of delivery of possession, they are not entitled to be put back into physical possession of the house and are merely entitled to be put into joint possession which would be symbolical one. If this contention would be correct there would be no necessity for remanding the case and as such it requires examination. For proper appreciation of Mr. Mohanty's contention Order 21, Rules 100 and 101 may be quoted: