108 PUJAY PAD ADVAIT PANCH Vs. RAMESHWAR MANDAL

JUDGEMENT

(1.) This appeal by the decree-holders-appellant is directed against the order dated 30th July 1981 passed by the Second Additional Subordinate Judge, Monghyr, in Execution Case No. 4 of 1978, directing the appellants to restore possession to the two judgment-debtors, who are respondents Nos. 1 and 2.

(2.) Title Suit No. 120/22 of 1970/77 was filed by the appellants, which was decreed on contest. In the first appeal filed before this Court, which was registered as First Appeal No. 421 of 1978, the judgment and decree of the trial court were confirmed and the appeal was dismissed. Special leave to appeal to the Supreme Court was also refused. In the meantime, the decree passed in favour of the appellants was executed which was registered as Execution Case No. 4 of 1978. In that case writ of delivery of possession was issued on 26th June, 1981, which was made returnable by 7th July 1981. It is said that delivery of possession was effected on 30th June, 1981 and respondents Nos. 1 and 2 were thrown out of their respective shop premises, which were in their possession Thereafter a petition was filed by respondent No. 1 Rameshwar Mandal on 2nd July 1981 and another petition was filed by respondent No. 2 Anil Kumar Mandal on 3rd July 1981. It may be stated here that before Rameshwar Mandal (respondent No. 1) could file the petition, a petition was filed by Arun Kumar Mandal (respondent No. 24 in this appeal), who was not a party to the suit. By these applications, they made a prayer to restore their possession on the ground that no decree for khas possession was passed against them and they were in occupation of the shops' premises from which they have been thrown out in execution of the aforesaid decree. It may be stated here that Arun Kumar Mandal (respondent No. 24) and Anil Kumar Mandal (respondent No. 2), who are full brothers, claimed to be tenant of one shop-room whereas Rameshwar Mandal (respondent No. 1) claimed to be tenant of another shop-room. The appellants contested the said petitions filed by respondents Nos. 1, 2 and 24 by filing a rejoinder. After hearing the parties, the court below passed the impugned order. In this impugned order the court below has held that no decree for khas possession was passed against respondents Nos. 1 and 2, who are defendants Nos. 19 and 20 respectively in the suit, and it was a mistake of the officers of the court to give vacant possession by ousting these two tenants. The impugned order shows that a prayer was made by the appellants to make enquiry as to whether respondents Nos. 1 and 2 were tenants of the two shops' premises. The executing court has referred to the plaint and has stated that in clear terms it has been mentioned therein that they are tenants, and, therefore, it is not necessary to make any enquiry on this point. Accordingly, the executing court passed the impugned order directing respondents Nos. 1 and 2 to be restored to possession over their shop premises from which they had been dispossessed, as the decree under execution was not for khas possession by evicting the tenants.

(3.) It is argued by Mr. Devendra Sharma, learned Counsel appearing on behalf of the appellants that the court below acted illegally in not holding an enquiry and take evidence in the matter as to whether respondents Nos. 1 and 2 were tenants of the two shop-rooms in question. It is contended by him that these respondents claimed to be the tenants in their petitions filed before the executing court for restoration of their possession, which fact was denied by the decree-holder-appellants in their rejoinder. In that view of the matter, according to the learned Counsel, it was incumbent duty on the court below to hold an enquiry and decide the point after taking evidence in accordance with law.