IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.4120 of 2011 Smt.Kalpana Devi & Anr Versus Sri Narayan Prasad 3 26.8.2011 The petitioner has filed the instant application for setting aside the order dated 20.11.2010 passed by the learned Munsif I, Munger in Title Execution Case No.3 of 1996 by which he has rejected the petition dated 6.52000 filed by the petitioner-judgment debtor for stay of the further proceedings in Title Eviction Execution Case No.3 of 1996. The petitioner filed the aforesaid petition dated 6.5.2000 for stay as the partition suit for partition of property including the property in question in Execution Case has been filed in Title Suit No.42 of 1999. The facts of the case in brief are that one Arsi Sah and his three sons transferred the residential house in the year 1967 to respondent no.1 who allowed Suraj Narain Sah to continue in the residential house as tenant. Suraj Narain Sah happens to be one of the three sons of Arsi Sah who together executed the sale deed of the premises to respondent no.1. Respondent no.1 filed Eviction Suit No.34 of 1981 on the ground of default in payment of rent against Suraj Narain Sah. For some years Suraj Narain Sah contested the Eviction Suit but later on he failed to do pairvi in the case and as such the suit was decreed exparte in the year 1993 in favour of respondent no.1. In the year 1996 respondent no.1 filed Title 2 Execution Case No.3 of 1996 for delivery of possession of the residential premises. Thereafter, a Title Suit No.42 of 1999 was filed by the heirs of other two sons of Arsi Sah in the year 1999. The heirs of other two sons of Arsi Sah thereafter filed a petition in Title Execution Case No.3 of 1996 for stay of delivery of possession as partition suit amongst them is pending. The trial court rejected the aforesaid petition by order dated 20.11.2010 which is impugned in this case. The main prayer of the heirs of other two sons of Arsi Sah is that they do have share in the property and as such their father and grand father could not have sold the entire suit property to respondent no.1 in the year 1967. It is strange that the suit land which was transferred in the year 1967 to respondent no.1 has not been challenged till date. A transfer made by a co-sharer in excess of his share is voidable and the same can be set aside at the instance of co-sharer. The limitation provided for filing such a suit on the ground of the same being voidable is three years. The petitioners or the heirs of other two sons of Arsi Sah had not challenged the aforesaid sale deed executed in the year 1967 till date and as such after lapse of 40 years, they cannot be allowed to state that his father and grand father had transferred their shares in the year 1967.The trial court has rightly rejected the petition for stay of delivery of possession in Title Execution Case No.3 of 1996. 3 KHAN For the reasons stated above, I do not find any infirmity in the impugned order dated 20.11.2010 passed in Title Execution Case No.3 of 1996 and this application is accordingly dismissed. (S.P.Singh,J)