DINA NATH GUPTA Vs. SAJDA PARVEEN

JUDGEMENT

(1.) Heard Mr. Abinash Kumar, the learned counsel for the petitioner, and Mr. Partha Sarthy, the learned counsel for the respondents.

(2.) The petitioner has filed this Civil Misc. petition against the order dtd. 28/7/2016 passed by learned Sub Judge-IV, Danapur in Title Eviction Suit No. 4 of 2013 by which the learned Sub Judge dismissed the petition of the petitioner for recalling the order dtd. 29/2/2016 passed in the same suit by which further proceeding of Title Eviction Suit No. 4 of 2013 has been stayed till the disposal of Title Suit No. 140 of 2013.

(3.) The relevant facts can be summarized as follows:- The petitioner is the plaintiff of the eviction suit. The petitioner filed the suit for eviction of the defendants on the ground of personal necessity and default in payment of rent. The plaintiff stated in the plaint that Mahmood fell in need of money and he with consent of his sister, Sagra, sold the land mentioned in schedule of the plaint in favour of Radhika Devi and Kedar Nath Gupta, mother and brother of the plaintiff, through two registered sale deeds dtd. 19/2/1986 and 20/2/1986. Later on partition took place and the property fell in the share of the plaintiff. The plaintiff inducted tenant, Jamil Hasan, husband of defendant/ respondent No.1 and father of defendant/ respondent No.2 as month to month tenant at monthly rental of Rs.100.00 per month in May, 1988. Later on the defendants defaulted in payment of rent and the plaintiff also required the suit premises for his own use and occupation and, thus, he filed the suit. The defendants appeared and filed written statement denying the relationship of landlord and tenant. The defendants stated that they filed Title Suit No. 140 of 2013 for declaration that the two sale deeds executed by Mahmood in favour of mother and brother of plaintiff in the year 1986 are illegal, void ab initio and not binding on them. During the pendency of the suit, the defendants filed petition under Sec. 10 of the Code of Civil Procedure to stay the further proceeding of Title Eviction Suit No. 4 of 2013. The learned Sub Judge after hearing the parties stayed the further proceeding of Title Eviction Suit No. 4 of 2013 vide order dtd. 29/2/2016. The petitioner/ plaintiff filed petition on 13/6/2016 under Sec. 151 of the Code of Civil Procedure for recalling the order dtd. 29/2/2016 on the ground that the eviction suit cannot be stayed during the pendency of the title suit filed for declaring the two sale deeds executed by the landlord as void and illegal as in the eviction suit the relationship of landlord and tenant is to be decided whereas in the title suit the title of the plaintiff is in question. If the plaintiff failed to prove the relationship of landlord and tenant between the plaintiff and defendants the suit is bound to be dismissed but the learned Sub Judge by the impugned order dismissed the petition of the petitioner/ plaintiff for recalling the order dtd. 29/2/2016 holding, in sum and substance, that issues in the title suit are same and the order dtd. 29/2/2016 is not passed on any misrepresentation of facts. Being aggrieved by the aforesaid order the petitioner moved this court by filing this Civil Misc. petition.