IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15011 of 2011 Shankar Prasad Sah Versus Sardar Papinder Singh & Ors ---------------------------------- O R D E R 5. 21.12.2011 1. I have heard Mr. Ganpati Trivedi, the learned counsel appearing on behalf of the petitioner and the learned senior counsel Mr. S.S. Dvivedi on behalf of the contesting respondent Nos. 1 and 2. 2. This application under Article 227 of the Constitution of India has been filed by the petitioner against the order dated 2.8.2011 passed by Munsif-II, Samastipur in Misc. Case No. 5 of 2010 whereby the learned court below rejected the petitioner’s application dated 16.4.2011 praying for amalgamation of Misc. Case No. 5 of 2010 with Eviction Execution Case No. 1 of 1993. 3. The learned counsel for the petitioner submitted that the petitioner was appointed as chairman of Shri Ghuna Sah Udasi Sangat Nyas Samiti. The constitution of the said Samiti was published in District Gazette, Samastipur on 25.2.2011. In the said notification the duty assigned to the Samiti was that the trust Samiti would take all legal possible steps to bring the trust property in their control and they would authorize to take all legal actions. Late Ghuna Sah by registered deed of dedication dedicated the suit 2 property to Sangat of Guru Maharaj in the year 1900. The trust property constituted of five building including the building in question. Ishwar Chand Sah was inducted as tenant in the suit premises and the rent was being realized by Ram Lakhan Das, chela of Baba Puran Das. The respondent Nos. 1 and 2 filed eviction suit against the said tenant and obtained decree of eviction up to the Apex Court. The present petitioner after constitution of the Samiti filed objection under Order 21 Rule 97 C.P.C. which has been registered as Misc. Case No. 5 of 2010 but the learned court below is adamant to handover possession of the tenanted premises in favour of respondent Nos.1 and 2 in spite of the fact that still the misc. case is pending. According to the learned counsel the suit property is the property of public at large and, therefore, without deciding the misc. case on merit the learned court below cannot proceed to deliver possession. In view of the above facts, the petitioner filed the application before the court below to amalgamate the misc. case with the execution case but the learned court below without considering the fact that the petitioner shall suffers serious loss and irreparable injury rejected the application and is proceeding to handover possession of the suit property in favour of the respondent Nos. 1 and 2. 4. The learned counsel for the petitioner relied 3 upon a decision of the Apex Court reported in 2003 (12) SCC 219 Ashan Devi vs. Phulwasi Devi and submitted that the petitioner may not be in actual physical possession but then the application under Order 21 Rule 97 filed by him is maintainable and unless the misc. case is decided on merit no delivery of possession can be affected. 5. On the other hand, Mr. Dvivedi the learned senior counsel submitted that in fact the tenant earlier fought the eviction suit on the same ground that the suit property belonged to Shri Ghuna Sah Udasi Sangat Nyas Samiti. The trial court after considering the oral evidences and more than 100 documentary evidences came to the conclusion that in fact the suit property belonged to Gurudwara and it is in possession of Gurudwara and the defendant is tenant in the suit premises. The trial court found that there is relationship of landlord and tenant and decreed the suit. On appeal the appellate court also after considering the oral and documentary evidences found that on the suit property Gurudwara exists and the tenant is the tenant under the respondent Nos. 1 and 2. The second appellate court also dismissed the second appeal. The Apex Court also dismissed the appeal filed by the tenant on the basis of theses facts. The learned counsel submitted that in fact earlier also the Ghuna Sah Udasi Sangat was fighting the eviction suit and supplying all the 4 papers to the poor tenant who was and is running tea stall and it is not expected that the tenant would have possibly fought the eviction suit up to the Apex Court by filing more than 100 of documents. The tenant raised all the same defence which is being taken now in the misc. case by the petitioner. The learned counsel further submitted that it is admitted fact that the petitioner is not in possession of the suit property. In fact the two tenants were in possession of the suit property. Out of them the respondents have got possession of the property which was tenanted to other tenant but the petitioner is not taking any action so far that part of the property is concerned. The respondents were realizing rent and are realizing rent from the tenant who are in possession of the suit premises and in such circumstances if the misc. case is amalgamated with the execution case indirectly it will mean that the decree which has been obtained by the respondents up to the Apex Court will be put at nut. 6. Admittedly, the respondent Nos. 1 and 2 filed the eviction suit against the tenant. The tenant raised the same very ground which is being raised by the petitioner. After considering all these facts on the basis of evidences the trial court found that the property belonged to Gurudwara who is in possession and finding relationship of landlord and tenant decreed the suit. The appeal filed by the tenant has been dismissed. The 5 second appeal and also appeal before the Apex Court have also been dismissed. To execute the said eviction decree the respondents have filed the execution case. In the said execution case the present petitioner filed misc. case under Order 21 Rule 97. Admittedly, the petitioner is not in possession of the property. Whatever submission has been made either on behalf of the petitioner or on behalf of the respondents regarding the respective cases are concerned that cannot be decided in this application under Article 227 of the Constitution of India. This matter is subjudiced before the executing court in misc. case that has been filed by the petitioner. That misc. case will be decided according to law. 7. So far the decision of Ashan Devi (supra) relied upon by the petitioner is concerned it appears that in that case the subsequent purchaser of vacant land by a registered sale deed claiming to be in possession of the land filed the application under Order 21 Rule 97 C.P.C. complaining of his alleged dispossession in execution of a decree for specific performance of contract. The Apex Court found that an ex parte decree of specific performance of contract was passed on 8.11.1990 in favour of the decree holder. The decree was put in execution and a registered sale deed was executed by the court. The decree holder obtained delivery of possession through the court on 6 5.9.1996 and thereafter the subsequent purchaser filed the application under Order 21 Rule 99. A preliminary objection was raised about the maintainability of the application on the ground that when delivery of possession was affected no resistance was offered by the objector as they were not present at the time of execution through court and, therefore, they cannot be held to have been dispossessed physically. Considering these facts and circumstances the Hon’ble Apex Court explained the word “possession” and held that the application was maintainable. The fact of the present case at our hand is entirely different. The petitioner was not in possession and is also not in possession of the suit property. He only says that he has the right to possess the property. His right is yet to be decided in misc. case. In such circumstances, whether he has the right to resist the decree or whether application filed by him is maintainable or not is a matter to be decided in the misc. case. However, at present he has no authority to resist the delivery of possession of the suit property pursuant to the lawful decree obtained by the respondents which has been confirmed by the Apex Court also. If the misc. case is allowed to be amalgamated with execution case then indirectly it will mean that till the decision of misc. case on merit delivery of possession will not be effected and thereby the decree obtained by the respondents would be 7 frustrated for indefinite period. If after the disposal of the misc. case it will be found by the executing court that in fact the petitioner is the rightful owner of the suit property then the petitioner may get the possession and moreover today also he is not in possession of the property. Therefore, there is no question of any irreparable loss or injury arises. In other words, the petitioner shall not suffer any loss what to speak of irreparable loss. On the other hand, the respondents will be deprived of the fruits of the lawful decree. 8. In view of the above facts and circumstances of the case, in my opinion, the petitioner cannot as a matter of right invoke supervisory jurisdiction under Article 227 of the Constitution of India. It has been held by the Apex Court in (2010) 8 SCC 329 Shalini Shyam Shetty vs. Rajendra Shankar Patil that the supervisory jurisdiction under Article 227 of the Constitution is purely discretional jurisdiction of the High Court. No person can claim the exercise of this jurisdiction as a matter of right. In the present case at out hand we have seen various aspects and facts of the case. Therefore, in my opinion, this is not a fit case where supervisory jurisdiction under Article 227 of the Constitution is required to be exercised. Moreover, the impugned order passed by the court below is neither illegal nor suffers from any jurisdictional error and on 8 this count also in supervisory jurisdiction the impugned order cannot be interfered with. 9. Thus, this application under Article 227 of the Constitution of India is dismissed. The interim order, if any, is vacated. S.S. (Mungeshwar Sahoo, J.)