KRISHNADEB JHA Vs. JOKHILAL POTDAR

JUDGEMENT

(1.) This application in revision by the petitioners, who were objectors in the Court below in a proceeding under Order 21, Rule 97, C. P. C., is directed against an order of the Munsif at Katihar dated 27-7-55, allowing the application of the decree-holders opposite party under Order 21, Rule 97 of the Code and directing them to be put in possession of the property as against the petitioners.

(2.) The facts leading up to the present application are these: Opposite parties 1 to 3, and one Mctilal were own brothers. They were members of a joint Mitakshara Hindu family. The joint family owned holding No. 66. This holding has three blocks of houses. The middle block, which is the subject-matter of the present application, was in occupation of a tenant, named, Bai Mohan Dutt Kabiraj, who has a dispensary in the front portion of the house, and he resided with his family in the back portion thereof. On 6-4-53 opposite parties 1 to 3 only, as Moti-lal, their youngest brother, had died earlier in March 1953. filed an application under Section 11, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, for eviction of the tenant, Rai Mohan Dutt, and got an ex part-e order of eviction from the House Controller on 3-5-53. The Kabiraj tenant appealed to the Collector, which was dismissed on 26-6-53. He then filed a revision before the Commissioner against the order of the House Controller, which was ultimately rejected on 17-12-54. Thereafter on 7-9-53 he filed a title suit, which was, however, dismissed on 17-3-55. In the suit he got an order of injunction against opposite parties 1 to 3, which was eventually dismissed on 7-11-53. An appeal against the order refusing injunction was also disallowed on 16-9-54. Meanwhile, opposite parties 1 to 3 executed the order of the Controller against KabiraJ tenant in the Court below. The Court deputed its Nazir to deliver possession to opposite parties 1 to 3. The Nazir on 24-12-54 returned the writ unserved with a report that he could not give possession to the decree-holder opposite party, because of the resistance offered by the petitioner. The Nazir in his report mentioned that the judgment-debtor was not living in the house In question, and that he found petitioner 1 in occupation of the said house, and his brother, petitioner 2, was holding a dispensary in the house. The Nazir stated that he asked them to vacate the house and give possession of the same to the decree-holders, but petitioners 1 and 2 refused to vacate the house and give possession to the decree-holders saying that petitioner 3, wife of petitioner 1, had purchased the house in question from Moti, the brother of the decree-holders some years back, and they were in possession of the house on her behalf. On this, decree-holders opposite parties 1 to 3 filed an application under Order 21, Rule 97, on 1-2-50 which was allowed on 27-7-55, as stated before, against which the present application in revision has been made. 2a. It appears that on 21-9-49 Motilal mortgaged to one Nidhi Nath Jha some of his properties describing himself as separate and in separate possession of the properties. Later on 22-2-50 he sold the house in question standing on holding No. 61 along with other properties describing himself to be separate in mess and property from his brothers, opposite parties 1 tp 3 and describing the vended property, namely, the disputed house, as his own exclusive property, in which his brothers, opposite parties 1 to 3, had no right.

(3.) The petitioners' case was that Motilal was separate from his brothers, and there had been a partition between the brothers by metes and bounds by virtue of which the disputed house fell to Moti's share. The decree-holders, opposite parties, however, denied these allegations, and asserted that all the four brothers were joint, and there had been no partition at all.