HARIHAR PRASAD SAH Vs. SARDAR JODH SINGH

JUDGEMENT

(1.) The appellants brought a redemption suit No. 78 of 1955 on October 11. 1955 in the Court of First Subordinate Judge, Muzaffarpur, against the mortgagee Babulal Jiwarajka, respondent No. 4 and respondents 1 to 3. It was alleged in paragraph 13 of the plaint that the defendants second party i. e. respondents 1 to 3 being tenants of defendant No. 1 (respondent No. 4) were bound by the terms settled between the plaintiffs and defendant No. 1 and were also bound by the decree of redemption to be passed in favour of the plaintiffs and, as such, they were impleaded as defendants to avoid future objections. In Clause (d) of paragraph 14 of the plaint it was prayed that a time be given to the defendants to give up possession of the disputed house mentioned in Schedule 1 and on expiry of the time the plaintiffs be given possession over the same. There is no denying the fact that the redemption suit which was brought against the defendants i. e. against the respondents of the present appeal was also a suit for khas possession. Respondents 1 to 3 who were defendants second party filed written statement in the suit. It was alleged that the defendants second party had taken settlement of the shops on the monthly rental basis from defendant No. 1 and were paying rent to him. Therefore, they were not necessary parties in the suit. No specific plea was taken by them in their written statement that no decree for possession could be passed against them and they could be ejected only on the grounds as mentioned in Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act of 1947 (hereinafter referred to as the Act).

(2.) It appears that the tenant defendants did not contest the suit and the suit was decreed against the mortgagee defendant on contest and ex parte against the other defendants. A preliminary decree was directed to be drawn up and thereafter a final decree followed according to which the defendants were directed to deliver quiet and peaceful possession of the mortgaged property to the plaintiffs. The appellants levied the execution of their decree and prayed for delivery of khas possession of the mortgaged property. The defendant respondents 1 to 3 raised objection to the execution of the decree before the executing court to the effect that they could not be evicted from the suit premises save and except in execution of a decree obtained under the provisions of the Bihar Buildings (Lease, Rent & Eviction) Control Act. The decree-holder appellants were only entitled to constructive delivery of possession under Order 21, Rule 36 of the Code of Civil Procedure. In support of their contention they relied on a decision of this court in Hira Lal Gupta v. Brijkishore Prasad Verma, (1959 Pat LR 234). That plea has succeeded before the two courts below. Hence, the decree-holders have come up to this court.

(3.) Mr. A. C. Roy, learned counsel for the appellants contended that the tenant respondents 1 to 3 were parties to the redemption suit. They filed their written statement in the suit but never resisted the claim of the appellants for khas possession of the suit premises after redemption. They never put forward a claim that they being monthly tenants of the suit premises could be only ejected under the terms and circumstances as laid down in Section 11 of the Act. That plea they never put forward in the suit and that being the position, they cannot be allowed to raise that plea at the execution stage as it is barred by the principles of constructive res judicata. In support of this contention, he relied on a Bench decision of this court in Jainarayan Sah v. Surat Kuer, 19(54 BLJR 507 = (AIR 1964 Pat 482). On the other hand, Mr. Tara Kant Jha, learned counsel for the tenant respondents reiterated the objection that as there was no decree for eviction against the tenant respondents in the manner and under the conditions as laid down under Section 11 of the Act, they cannot be ejected from the suit premises: In support of his contention he relied on the decisions of this court in Mrs. Dharamshila Lall v. Bibi Amna, AIR 1948 Pat 269; Bhagwati Prasad Sah v. Radha Kishun Sah, AIR 1950 Pat 354 and (1959 Pat LR 234).