KHURDENI MISTRI Vs. SATENDRA PRASAD

JUDGEMENT

(1.) This revision petition has been directed against the order dated 3.10.1997 passed by the Second Additional Munsif, Gopalganj. In Execution Case No. 13/94 whereby the application filed by the petitioner under Order XXI, Rule 29 of the Code of Civil Procedure has been rejected.

(2.) The facts of the case run as follows. Opposite parties filed eviction Suit No. 19 of 1989 before the Munsif, Gopalganj, for grant of decree of eviction on the ground of personal necessity. The dispute related to a house standing over 11 dhoors of land out of plot No. 718 Khata No. 279 with total area of 1 Khata 2 dhoors in village Barauli. According to the opposite parties, the disputed plot alongwith this house was recorded in R.S. Khatian in connection with Lochan Rai and Kamal Rai. The landlord of the Tauzi was Prasad Narain Singh who died leaving behind his widow alone. That widow, namely, Dulhin Baldeo Kumar instituted a rent suit against the recorded tenant and obtained rent decree. In exception of that rent decree, the disputed property was sold in auction in the year 1927 and she purchased the same. She settled 11 dhoors out of the suit plot towards west to Gayaddin Sah and put him in possession. Gayaddin Sah remained in possession on payment of rent to the landlord till the vesting. The landlord submitted return and in that return also the name of Gayaddin Sah was recorded in Register-II. Gayaddin Sah died leaving behind three sons, namely, Motilal Prasad, Ram Briksha Prasad and Biswanath Prasad. Opposite party-plaintiffs are the sons of Motilal. According to the plaintiffs-opposite parties, the defendant took the disputed room on rent from Motilal on 1.1.1970. Afterwards on a registered partition the house fell in the share of Girija Kuer who used to collect the rent 60.00 and defendant continued to pay the rent to her. Thereafter, Girija Kuer mortgaged the property on, 30.7.1984 to Lalita Devi and then she old the property to the plaintiffs. The plaintiffs father purchased the rest 11 dhoors of the plot and continued in possession. According to the plaintiffs, they being unemployed wanted to carry on business on the disputed room and as such filed the suit for eviction.

(3.) The defendant-petitioner by filing written statement denied the allegation made in plaint including tracing of title of the plaintiffs regarding auction sale etc. They also denied the settlement in favour of Gayaddin Sah and the rest of the documents by which the plaintiffs became the owner are being challenged as forged and fabricated documents. According to the defendants, on 31.12.1988 by a Mahadanama Raghav Sharma, son of the defendant, agreed to purchase the land from Nagendra Singh, grand-son of the recorded tenant Kamal Rai and ultimately on 28.12.1989 Nagendra Singh executed the sale deed in favour of Raghav Sharma and it was totally denied that there was any relationship of landlord and tenant between the plaintiffs and defendant. According to the defendant, to grab the land the petitioner have filed the suit in the garb of eviction. The suit was ultimately decreed in favour of the plaintiffs and against that decree the defendant came up before this Court in Civil Revision No. 439 of 1994. By order dated 17.12.1996 a Bench of this Court held that the findings arrived at by the Court below are passed upon correct appraisal of the evidence on record and as such there was no scope of interference in the civil revision application and as such the revision petition was dismissed but in course of discussion it was observed in the following manner.However, the defendant, if so advised, may file a Title Suit for declaration of his title and recovery of possession with respect to the suit property which shall be considered and decided strictly in accordance with the law not being influenced either by the findings arrived at by the Court below or by the revisional Court in the question of title in the eviction suit. Being enthusiastic with such observation of this Court the defendant filed a suit for declaration of title as per the written statement filed in the eviction suit being Title Suit No. 59 of 1997 and also prayed for confirmation of possession. Against the eviction decree when the revision petition failed the defendant filed the above mentioned execution case being Execution Case No. 13 of 1994 for recovery of possession from the plaintiffs. In the execution case the petitioner being the judgment-debtor filed the petition under Order XXI Rule 29 C.P.C. for stay of the execution proceeding pending disposal of his suit. According to the petitioner, he purchased 51/2 dhoors whereupon the shop house is situated and he is not concerned with the rest of the land of 11 dhoors as claimed by the plaintiff-decree holder and that the same s'hop house being the only source of livelihood and when the plaintiffs could not be able to prove his title in the eviction suit by producing auction sale documents etc. then prima facie the judgment-debtor is having a good case for being declared of title in the title suit itself and hence if the present execution proceeding is not stayed at least in respect of 51/2 dhoors of land wherefrom the suit house is situated, highly injustice would be caused to the judgment-debtor and such stay is definitely accessary for ends of justice even on the observation being made by a Bench of this Court in the earlier revision filed against the eviction decree. In respect of his contention learned Counsel has referred to 1968 PLJR 136. In that case an ex parte decree was obtained against the defendant and then the defendant challenged that ex parte decree by filling a fresh suit and then it was observed that it was a fit case where the executing Court can exercise its jurisdiction under Order XXI, Rule 29 of the Code of Civil Procedure. But the facts in that case are not at all similar to the present case. It was held by the revisional Court that the opposite parties got the eviction suit legally and the evidence and documents supported the case of the opposite parties and there was nothing to interfere with the eviction decree by way of revision under Section 115 of the Code of Civil Procedure. That the decree was obtained long back but up till now the decree-holder could not be able to get the fruit of the decree. There was observation by this Court while disposing of the revision that the petitioner would be at liberty to file a suit for declaration of his title and for recovery of possession meaning thereby that on the eviction decree if the decree-holder gets possession by execution of the decree the defendant would not be debarred in filing fresh suit and for getting recovery of possession but taking advantage of such observation the judgment-debtor by filing a suit is now trying to stay the proceeding of execution of the eviction decree. The decree passed in the eviction suit has not been challenged in the suit in which the plaintiffs want declaration of title in respect of 51/2 dhoors which is included in the eviction decree with regard to 11 dhoors. During the course of argument learned Counsel for the petitioner submitted that he has no objection if the decree-holder takes possession of his decreetal land besides 51/2 dhoors for which the title suit is pending. The executing Court has got no scope to go beyond the decree or divide the decree into part. If he is to execute the decree he should execute as a whole and not by part. Even if on the eviction decree the petitioner is dispossessed then also if his Suit which was filed at a very belated stage i.e. in the year 1997 he could be able to get recovery of possession in respect of the land for which decree might be obtained by him. in the title suit. But a decree-holder in a eviction suit cannot be debarred in execution of the decree. Already by filing various petitions the judgment-debtor could delay the execution proceeding for long five years. Learned Counsel appearing for and on behalf of the opposite parties contended that as per observation made by the revisional Court the petitioner have not prayed for recovery of possession but prayed for confirmation of possession which is against the direction/observation given by this Court.