MAHENDRA RAI Vs. HEMANT KUMAR CHAUDHARY

JUDGEMENT

(1.) HEARD counsel for the petitioners and the counsel for the opposite party.

(2.) THE impugned order passed by the District Judge, Samastipur only rejects the prayer of the petitioners, defendants in an eviction suit, for transferring the eviction suit from the Court of Munsif, Dalsingsarai to the Court of Sub -Judge -lll, Samastipur where a partition suit No. 35/ 2003 filed by the petitioner is said to be pending between the same parties. Mr. Hare Krishna Kumar, learned counsel appearing on behalf of the petitioners, white referring to paragraphs 11 and 12 of the plaint and paragraphs 21, 22 and 23 of the written statement has seriously contended that as there is a serious and complicated question of title involved in the eviction suit which is also subject matter of a separate partition suit, the ends of justice could have been met, had the District Judge allowed the transfer of eviction suit to the court where the partition suit was pending. He is of the view that when the petitioners tenants have their independent right of title being purchaser of the suit property, the suit for eviction cannot be tried independently and must be heard by the same court where issue of title of the suit property is pending for decision.

(3.) MR . Chittaranjan Sinha, learned Senior Counsel appearing on behalf of the landlord opposite party, has submitted that the eviction suit was filed in the year 2002 and the partition suit was filed thereafter in the year 2003. The eviction suit is only confined to one ground and is being tried under summary proceeding under Section 11 read with Section 14 of the B.B.C. Act. He has also referred to the judgment of this Court in the case of Birmani Pandey @ Birmani Saranacharya vs. Sri Sri 1008 Swami Dharanidharacharya & Ors., reported in 2004(1) PLJR 476. to contend that the eviction suit has not to await or to be made analogous with the partition suit or any such involving question of title, inasmuch as the suit for eviction under the provisions of B.B.C. Act is under special provision and the same cannot be made subject matter of a general suit for partition or title.