NAVIN KUMAR MODI Vs. SHEKHAR KUMAR MODI

JUDGEMENT

(1.) Challenge in this writ application is to the order dated 18.3.2008, passed by the Sub-Judge 1, Dumka in Title Execution Case No. 7 of 2007, whereby the petitioner's objection filed under Order 21 Rule 36 read with Section 151 of the Code of Civil Procedure was dismissed.

(2.) Heard Mr. Amit Kumar Das, learned counsel for the petitioner and Mr. P. K. Prasad, learned senior counsel for the Respondents.

(3.) Facts of the case lie in a narrow compass :- The Respondent Shekhar Kumar Modi (Respondent No. 1), had filed a Partition Suit No. 29 of 2001 against his co-sharers including one Kishan Kumar Modi (defendant No. 4/Respondent No. 5). A preliminary decree was passed on 15.9.2004, followed by a final decree on 28.5.2007, in which the shop premises of which the petitioner claims to be in occupation and possession, was allowed to the share of the plaintiff/decree holder (Respondent No. 1). The decree holder sought for execution of the decree and for delivery of Khas possession of the aforementioned shop premises. The petitioner filed his objection under Order 21 Rule 36 of the Code of Civil Procedure on the ground that he was inducted as a monthly tenant in the shop premises for a period of ten years commencing from 1.11.2005 by virtue of a written agreement of tenancy (Annexure-1) by the defendant No. 4 Kishan kumar Modi and since he was not impleaded as a party in the Partition Suit, the decree passed in the suit is not binding upon him and at best the decree holder can take symbolic possession of the shop premises and the petitioner cannot be evicted from the shop in execution of the final decree of partition. It is further contended, that the petitioner being a statutory tenant, his eviction from the shop premises can be made only in accordance with the procedure laid down under the provisions of the Bihar Buildings (Lease, Rent & Eviction) Control Act, and not by virtue of the partition decree. In support of his objections, the petitioner had filed a copy of the purported tenancy agreement along with a few rent receipts issued to him by his aforesaid landlord.