MAHABIR DUTTA Vs. LAXMI DEVI AND ORS.

JUDGEMENT

(1.) AGGRIEVED by order dated 03.04.2013 in Title (Execution) Case No. 05 of 2002, the present writ petition has been filed.

(2.) IN Title (Partition) Suit No. 32 of 1989, the landlord of the petitioner namely, Sitaram Sah was defendant. Vide agreement dated 31.05.1984, the petitioner was inducted as a tenant in the shop constructed over Plot No. 1270, Mouza -Karmatar. Title (Partition) Suit was decreed and the decree -holder filed Title (Execution) Case No. 05 of 2002 in which the petitioner preferred an application under Order XXI Rule 99 and Rule 101 read with Section 151 C.P.C. which was dismissed on 27.06.2005. Challenging the same, the petitioner approached this Court in W.P.(C) No. 4122 of 2005 which was dismissed as withdrawn on 21.11.2011. The petitioner thereafter, filed an application under Order XXI Rule 97 C.P.C. read with Section 151 C.P.C. on 14.12.2011. The said application has been dismissed by the impugned order dated 03.04.2013.

(3.) THE facts in the case are not in dispute. It is not in dispute that the petitioner was inducted as a tenant by one Sitaram Sah and an agreement dated 31.05.1984 was executed between the parties. However, it also remains a fact that in Title (Partition) Suit No. 32 of 1989, the suit premises has been allocated in the share of the respondent No. 1 who was the plaintiff in Title (Partition) Suit No. 32 of 1989. Execution Case was filed in the year, 2005 and thereafter, the petitioner has taken successive attempts by filing as many as three objections in the Title (Execution) Case No. 05 of 2002. Though, Order XXI Rule 97 C.P.C. provides that a person who was not a party in the suit can file an objection resisting the execution however, the objector must disclose an independent right for resisting or objecting to delivery of possession of the immovable property to the decree -holder. The learned Senior Counsel for the petitioner has relied on the decision in "Samir Sobhan Sanyal" case to contend that the petitioner cannot be evicted from the suit property in the garb of execution of decree passed in the partition suit. In the said case, the Hon'ble Supreme Court after taking note of the fact that the tenant was sought to be evicted without following due process held that even if a person is in illegal possession of the property, the said person cannot be evicted without recourse to due process in law. In the present case, as noticed above, the Title (Execution) Case No. 05 of 2002 has been instituted by the decree -holder of Title (Partition) Suit No. 32 of 1989. The proceeding in Title (Execution) Case No. 05 of 2002 would be a procedure prescribed under the Code and therefore, the petitioner cannot contend that he cannot be evicted without recourse to procedure prescribed in law. In "Inder Singh Vs. Piara Singh & Anr.", (supra), the property in question was first mortgaged to the objector and thereafter, a sale -deed was executed in favour of another person. In these facts, the Hon'ble Division Bench of Punjab and Haryana High Court held that, unless the mortgage is redeemed, the sale -deed cannot be given effect to and therefore, the objection under Order XXI Rule 97 C.P.C. was required to be dealt with for adjudicating the right of the objector who resisted the delivery of possession to the vendee. In the present case, the tenancy was created by agreement dated 31.05.1984 executed by Sitaram Sah who was defendant in the partition suit. The respondent No. 1 was not a party to the said agreement. The suit property has come in the share of respondent No. 1 and the judgment and decree in the Title (Partition) Suit No. 32 of 1989 has been accepted by the parties to the partition suit. The objection under Order XXI Rule 97 C.P.C. would have been admitted for adjudication had the petitioner been claiming an independent right in the suit property. Since the petitioner is claiming through Sitaram Sah as his landlord however, the property in question has been given to the plaintiff, the petitioner cannot claim an independent right in the suit premises. The decree -holder has a right to get peaceful possession of the suit property delivered to her. In "Silverline Forum Pvt. Ltd. Vs. Rajiv Trust & Anr.", reported in : (1998) 3 SCC 723, the Hon'ble Supreme Court has held thus,