PRABHUDAYAL Vs. SUSHEEL KUMAR

JUDGEMENT

(1.) THIS first appeal has been preferred by Prabhu Dayal (landlord) defendant-appellant against the judgment & decree dated 8. 10. 1997 passed by the learned Additional District Judge No. 3 Jaipur City, Jaipur by which Civil Suit for declaration filed by Sushil Kumar (alleged tenant) plaintiff-respondent has been decreed.

(2.) THE facts giving rise to this appeal in a narrow compass are that suit for eviction was filed by appellant Prabhudayal (landlord) against Satyanarain and Omprakash, who are arrayed as proforma defendants-respondents Nos. 2 and 3 in the present appeal for their eviction from a shop/show-room which was let out by the appellant to the latter, situated at plot No. 4 near Truck Stand, Transport Nagar, Jaipur. In that eviction Suit No. 129/93 the case of the appellant was that on 1. 7. 1980 as per rent note dated 10. 7. 1980 he had let out the suit premises to Satyanarain and Omprakash who started business of automotive parts under the name and style of M/s. Delhi Auto Agencies. It was agreed between the parties that monthly rent of the shop premises shall be paid by Sushil Kumar respondent No. 1 who was not arrayed as defendant to the eviction suit by the appellant landlord. In that suit, eviction was sought on the ground of default in payment of arrears of rent w. e. f. 1. 8. 1992 and so also the reasonable and bonafide necessity was pleaded by the landlord on the assertion that the suit premises were required for business of Anil Kumar and his brother Sushil Kumar. Another ground asserted was that the tenants have closed the suit shop as they were not using the same for more than six months. During the proceedings in the eviction suit, Sushil Kumar (respondent-plaintiff herein) moved an application under Order 1 Rule 10 C. P. C. on the assertion inter-alia that he has been doing business as one of partners of M/s. Delhi Auto Agency ever since the inception of the Firm's tenancy in suit premises on whose behalf, the rent was being paid through cheques under his signatures, and that on 5. 12. 1980, the partner ship stood dissolved culminating into formation of a new Partnership Firm established by him and since then he has been proprietor of M/s. Delhi Auto Agency having been in possession of the suit shop as tenant but a forged rent note has been executed by defendants Satyanarain and Omprakash in favour of the landlord and therefore, he was a necessary party to the eviction suit. Reply to the aforesaid application of Sushil Kumar was filed by the landlord. THE trial Court dismissed the said application under Order 1, Rule 10 CPC by order dated 15. 9. 1984 (Ex. A/4) by arriving at the conclusion that as is evident from the partnership deed dated 12. 8. 1980, the suit shop was let out by the land lord w. e. f. 1. 7. 1980 to the firm through its only two partners namely; Satyanarain and Omprakash and further from the rent note it was borne out that only two persons were described as partners of M/s. Delhi Auto Agency, therefore, they being partners had only to be dealt with as tenants, and there was no description of third person and hence the contention of Sushil Kumar (respondent No. 1) was that as he was partner of the firm he had derived tenancy rights on the basis of the said deed and a right to continue as tenant in the suit premises being partner, was rejected outright by the said court. In the order (Exh. A/4) it was observed that since Sushil Kumar (plaintiff herein) had no right or locus-standi to contest the eviction suit, no legal right will float in his favour as regards the suit premises and consequently application of Su-shil Kumar under Order 1 Rule 10 CPC was dismissed as being not maintainable since he was not a necessary party to be impleaded to the eviction suit. Against the said order (Exh. A/4) Sushil Kumar preferred revision petition (S. B. Civil Revision Petition No. 1395 of 94) which was dismissed by this Court's order dated 6. 12. 1994 being not maintainable on merits. However, the Suit No. 129/93 for eviction filed by appellant Prabhu Dayal was decreed against Omprakash and Satyanarain by the trial Court by judgment & decree dated 4. 2. 1995 (Exh. A/2 ). This decree attained finality because none of the parties affected by it had challenged the same by way of an appeal.

(3.) I am further of the view that Sushil Kumar admittedly was stranger to the decree for eviction sought by the landlord Prabhudayal against Omprakash and Sa-tyanarain and as the decree dated 4. 2. 1995 (Exh. A/2) in eviction suit No. 129/93 has attained its finality on having not been challenged in any appeal preferred by either of the affected parties, the decree holder Prabhu Dayal (appellant landlord) on the strength of the said decree was entitled to execute the same against Sushil Kumar and Om Prakash who alone could have resisted its execution in accordance with the provisions contained in Order 21 Rules 97, 101,103 and 104 CPC, by filing their objections, if any, and nonelse. Rules, 97,101,103 and 104 of Order 21 CPC provides, as under- Resistance or obstruction to possession of immovable property. "97. (1)Where the holder of a decree for the possession of immovable property or the purchaser of any such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession of the property, he may make an application to the Court complaining of such resistance or obstruction. (2) Where any application is made under sub-rule (1), the Court shall proceed to adjudicate upon the application in accordance with the provisions herein contained. Question to be determined. 101. All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. Orders to be treated as decrees. 103. Where any application has been adjudicated upon under rule 98 or rule 100, the order made thereon shall have the same force and he subject to the same conditions as to an appeal otherwise as if it were a decree. Order u/r. 101 or rule 103 to be subject to the result of pending suit. 104. Every order made under rule 101 or rule 103 shall be subject to the result of any suit that may be pending on the date of commencement of the proceeding in which such order is made, if in such suit the party against whom the order under rule 101 or rule 103 is made has been sought to establish a right which he claims to the present possession of the property. "